State v. Sharp

[Cite as State v. Sharp, 2022-Ohio-2274.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110944
v. :
TROY SHARP, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 30, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-658554-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jonathan Block, Assistant Prosecuting
Attorney, for appellee.
Mary Catherine Corrigan, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant Troy Sharp (“Sharp”) appeals the trial court’s
imposition of the maximum sentence after Sharp pled guilty to felonious assault.
For the reasons that follow, we affirm.
On April 22, 2021, Sharp was charged with attempted murder
(Count 1), two counts of felonious assault (Counts 2 and 3), and tampering with
evidence (Count 4). Counts 1, 2, and 3 contained both a one- and three-year firearm
specification. All counts included a forfeiture specification.
On August 19, 2021, Sharp entered into a plea agreement with the
state in which he pled guilty to an amended Count 2 — felonious assault with the 3-
year firearm specification and forfeiture of his Glock 19, 9 mm handgun. Sharp
agreed to no contact with the victim, restitution in an amount to be determined at
sentencing, and a mandatory prison sentence, to which the victim consented. The
remaining counts and specifications were dismissed. The trial court advised Sharp
that he faced a mandatory 3 years for the firearm specification, to be served
consecutively and prior to a minimum period of incarceration of 2-8 years on the
underlying felonious assault; the felonious assault charge was subject to indefinite
sentencing under the Reagan Tokes Law; and he faced a mandatory 3-year term of
postrelease control. The trial court accepted Sharp’s guilty plea and ordered a
presentence-investigation report.
The matter proceeded to sentencing on September 29, 2021. Counsel
for Sharp, Sharp, the assistant prosecutor, and the victim all addressed the court.
Counsel for Sharp related that Sharp had been residing at the victim’s house and
storing marijuana cultivation equipment and growing marijuana in the victim’s
garage. Counsel added that Sharp was not a major drug user but had developed a
passion for cultivating marijuana and graduated from the Cleveland School of
Cannabis. Counsel stated that after Sharp was no longer permitted to reside or grow
marijuana at the victim’s house, he went back to get his money and marijuana
cultivation equipment. While he was at the victim’s house, an argument ensued
between Sharp and the victim, during which Sharp pulled out a gun and shot the
victim.
Counsel stated that Sharp believed the anger and impulsiveness he
experienced that day were attributable to medication he had been taking for mental
health issues. Counsel noted that Sharp is 47 years old, has no criminal history, and
had never acted this way in the past. Counsel stated that Sharp is a practicing
Christian and felt remorse for his actions. Counsel pointed to a sentencing memo
she filed for the purpose of mitigation, to which she attached a letter from Sharp,
Sharp’s degrees in electrical engineering and from the Cleveland School of Cannabis,
as well as six letters from family and friends who have known Sharp many years.
Counsel also pointed to the moderate- and low-risk factors contained in the
presentence-investigation report.
Sharp then addressed the court. Sharp apologized and said he was
not acting like himself on the day of the incident. He explained that he was
prescribed Zoloft for anxiety, and its label merely warned that it might cause
drowsiness and not to operate heavy machinery. He said he did not realize that the
medication would cause a “psychotic episode,” adding that the medication also
caused him to have violent thoughts following his arrest and that he even
contemplated hurting a female corrections officer during his intake. He said that,
following his arrest, he called his ex-wife, who reminded him that he used to take a
medication in the Zoloft family that had caused a similarly bad reaction years ago,
and if he had made this connection himself, he would not have taken Zoloft. He
stated that he was “a hundred percent positive” the shooting resulted from the
medication. Sharp also added that he was “shooting in retreat” and discharged the
firearm “to keep from getting overthrown by [the victim].” He stated that he is not
a violent person, goes to church three times per week, and does not have a violent
criminal history.
The assistant prosecutor next addressed the court, calling attention
to several photographs depicting the scene of the shooting, which took place in front
of the victim’s garage. The assistant prosecutor stated that Sharp already had the
gun drawn as he approached the victim and asked him where his money was. The
assistant prosecutor noted that the crime scene photos showed several bullet holes
in the back of the garage, ricochets where bullets had been fired alongside the victim,
and two bullet wounds from the shots that Sharp had fired at the victim. One photo
showed a bullet wound in the victim’s left thigh, which neighbors “were attempting
to tourniquet” to prevent blood loss. Another photo showed a bullet wound in the
victim’s right leg, just above his knee.
The assistant prosecutor also called attention to Sharp’s own
statements at the sentencing hearing, observing that Sharp appeared to be blaming
the victim by alleging self-defense, which sounded neither “contrite” nor like Sharp
took responsibility for the shooting. The assistant prosecutor pointed out that Sharp
had admitted that his medication warned him not to operate heavy machinery, yet
he drove to the victim’s home with a loaded handgun and an expired concealed-carry
permit and should have been on notice from his former gun safety training that he
should not be using a firearm if he suffered from issues with his mental health and
medication. The assistant prosecutor also noted that Sharp self-reported an
incident of domestic violence, which demonstrated, by Sharp’s own admission, that
the shooting was not the first violent incident in which he had been involved.
The victim then addressed the court. The victim stated that the
responding officer informed him that, before traveling to the victim’s house, Sharp
told his girlfriend that he planned to hurt the victim. The victim stated that as a
result of the shooting, he now has steel plates in his legs, he had to do physical
therapy, and one of the gunshot wounds “ruined [his] leg.” The victim stated that
his family owns a successful construction business, he has worked in construction
his entire life, and his injuries keep him from doing this work. The assistant
prosecutor added that one of the bullets shattered the victim’s shin bone, after which
plates were inserted to aid healing, physical therapy was required for the victim to
learn to walk again, and the victim now walks with a noticeable limp.
Sharp responded that he had not driven to the victim’s house; rather,
he was driven there by a woman he knew. Sharp stated that he had no intention of
harming the victim and was surprised to learn that this woman had reported his
intention to the police. Sharp added that his “original plan was to shoot out [the
victim’s] window to cost him the money” that Sharp believed the victim owed him.
The trial court stated that after considering “all the principles and
purposes of felony sentencing” and “all the appropriate recidivism and seriousness
factors,” it found “several things that are disturbing in this matter.” The trial court
found that Sharp went to the victim’s home with a gun either to threaten him to
return money or cause property damage to solve what amounted to a civil matter.
The trial court found that Sharp’s decision to bring a gun to get his money back
demonstrated intent and destroyed any theory of self-defense. The trial court also
found that Sharp failed to explain why he shot the victim and therefore “ha[d] no
way to prevent it from happening again,” which made him “an extreme danger.” The
trial court found no evidence that Sharp suffered a psychotic episode and if Zoloft
made him angry, he should have stopped taking it or consulted with a doctor. The
court found that the shooting was unprovoked and resulted in permanent injuries
to the victim, which now affect his mobility, his ability to work, and his daily
activities. The trial court found that, except for Sharp’s self-reported incident of
domestic violence, the state recognized his lack of a criminal record by permitting
him to plea to felonious assault, a second-degree felony carrying a prison term of up
to 8 years, instead of attempted murder, a first-degree felony carrying prison term
of up to 11 years.
The trial court then sentenced Sharp to a prison term of 3 years on
the firearm specification, to be served consecutively and prior to an indefinite term
of 8-12 years on the underlying felonious assault under the Reagan Tokes Law. The
trial court imposed a mandatory 3-year term of postrelease control and credited
Sharp with 181 days of jail time. The trial court did not order restitution because the
victim’s insurer had paid his medical bills. In its sentencing entry, the trial court
stated that it had “considered all required factors of the law” and found “prison * * *
consistent with the purpose of R.C. 2929.11.”
Sharp now appeals, raising the following three assignments of error
for review:
Assignment of Error I: The trial court’s sentence was contrary to law.
Assignment of Error II: The appellant received ineffective assistance
of counsel.
Assignment of Error III: The trial court erred by imposing an
unconstitutional sentence pursuant to the Reagan Tokes Act.
In his first assignment of error, Sharp contends that his sentence of
“11-15 years” was contrary to law. Sharp argues that if the trial court had properly
considered the purposes, principles, and factors of felony sentencing under
R.C. 2929.11 and 2929.12, it would not have imposed the maximum sentence for
felonious assault. Sharp maintains that the trial court cannot meet the requirements
of R.C. 2929.11 by rote recitation in its sentencing entry that it considered the
purposes and principles of felony sentencing and that the trial court failed to state
in its sentencing entry that it had considered the R.C. 2929.12 sentencing factors.
Sharp also maintains that he met several mitigation factors under R.C. 2929.12, such
as the shooting started as a disagreement between Sharp and the victim over the
rental property; Sharp had a negative reaction to his anxiety medication that caused
him to believe he was acting in self-defense; he did not have a serious criminal
history; and he showed remorse during sentencing. R.C. 2929.12(C)(1)-(2), (C)(4),
(E)(3), (E)(5).
The state argues that the trial court expressly stated on the record at
sentencing and in its sentencing entry that it had considered the purposes,
principles, and factors of felony sentencing under R.C. 2929.11 and 2929.12, and the
record shows that the trial court reviewed and rejected the R.C. 2929.12 factors that
Sharp raised to mitigate his sentence.
Appeal of a felony sentence is governed by R.C. 2953.08(G)(2). State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and
remand a challenged felony sentence if the court clearly and convincingly finds that
either the record does not support the sentencing court’s findings as required by
relevant sentencing statutes, or the sentence is otherwise contrary to law. Id. at ¶ 22-
23.
When sentencing a defendant, the sentencing court must consider the
purposes and principles of felony sentencing under R.C. 2929.11 and the seriousness
and recidivism factors under R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No.
99511, 2013-Ohio-5025, ¶ 7. A sentence is contrary to law if it falls outside the
statutory range for the offense or if the sentencing court fails to consider the
purposes and principles of sentencing under R.C. 2929.11 and the sentencing factors
under R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-
5926, ¶ 58.
Under R.C. 2929.11(A), a felony sentence shall be “reasonably
calculated” to achieve three “overriding purposes”: (1) “protect the public from
future crime by the offender and others”; (2) “punish the offender”; and (3)
“promote the effective rehabilitation of the offender using the minimum sanctions
the court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources.” Additionally, the sentence must be
“commensurate with and not demeaning to the seriousness of the offender’s conduct
and its impact upon the victim, and consistent with sentences imposed for similar
crimes committed by similar offenders.” R.C. 2929.11(B).
R.C. 2929.12 gives the sentencing court discretion to determine the
best way to comply with the purposes and principles of sentencing under
R.C. 2929.11 when imposing a sentence. State v. Bridges, 8th Dist. Cuyahoga No.
107281, 2019-Ohio-1769, ¶ 10, citing State v. Switzer, 8th Dist. Cuyahoga No.
102175, 2015-Ohio-2954, ¶ 10. R.C. 2929.12 provides a nonexhaustive list of factors
that a trial court must consider when determining the seriousness of the offender’s
conduct and the likelihood of recidivism, such as whether the victim suffered serious
physical harm as a result of the offense, the offender’s criminal history, whether the
offender has demonstrated remorse, and any other factors relevant to achieving the
purposes and principles of sentencing. R.C. 2929.12(A), (B)(2), (D)(2), and (D)(5).
Although the sentencing court must consider the R.C. 2929.11
purposes and principles of sentencing and the R.C. 2929.12 sentencing factors, the
court is not required to make specific findings on the record that it considered the
factors, even when imposing more than the minimum sentence. Bridges at ¶ 11,
citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234,
and State v. Rouse, 8th Dist. Cuyahoga No. 107379, 2019-Ohio-708. The court’s
consideration of the factors is presumed unless the defendant affirmatively shows
otherwise. State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.). The
“court’s statement in its sentencing journal entry that it considered the required
statutory factors is alone sufficient to fulfill its obligations under R.C. 2929.11 and
2929.12.” Id.Sharp pled guilty to felonious assault, a second-degree felony, with a
3-year firearm specification and forfeiture of the Glock 19, 9 mm handgun he used
to shoot the victim. R.C. 2929.14(A)(2)(a) authorizes the court to impose a
minimum prison term of 2, 3, 4, 5, 6, 7, or 8 years for a second-degree felony and a
maximum term as defined by R.C. 2929.144. Felonious assault is a “qualifying
felony” under the Reagan Tokes Law. R.C. 2929.144(A). R.C. 2929.144(B)(1)
defines the maximum term as “equal to the minimum term imposed * * * plus fifty
per cent of that term.” R.C. 2929.14(C)(1)(a) provides that any prison term imposed
for using a firearm to commit the underlying offense must be served consecutively
and prior to the prison term for the underlying offense.
The trial court imposed a 3-year term for Sharp’s use of a gun to
commit the felonious assault, to be served consecutively and prior to a minimum
term of 8 years and a maximum term of 12 years for the felonious assault. The
negotiated plea agreement between the parties was conditioned on Sharp’s
accepting a mandatory prison sentence. Under the statute, the prison term for the
firearm specification must be served consecutively and prior to the term for the
underlying felonious assault. The court had no discretion when imposing this 3-
year term. Also, the maximum term of Sharp’s sentence for the underlying felonious
assault is determined by the Reagan Tokes Law. The trial court had no discretion
when imposing the indefinite sentence. The only discretion the trial court had was
in determining a minimum sentence for the underlying felonious assault. Sharp
contests his sentence, but the trial court’s imposition of a term of 8 years falls within
the statutory range provided under R.C. 2929.14(A)(2)(a).
Sharp also contests whether the trial court considered the purposes,
principles, and factors of felony sentencing under R.C. 2929.11 and 2929.12 before
imposing the sentence. The trial court was not required, however, to make specific
findings on the record that it had considered the statutory factors. See Bridges at ¶
11. Nevertheless, at the sentencing hearing, the trial court stated that it “considered
* * * all the principles and purposes of felony sentencing [and] all the appropriate
recidivism and seriousness factors,” and in its sentencing entry, the trial court stated
that it “considered all required factors of the law” and “finds that prison is consistent
with the purpose of R.C. 2929.11.” See Wright at ¶ 16. These statements, standing
alone, are sufficient to meet the trial court’s obligations under R.C. 2929.11 and
2929.12.
The record also reveals that the trial court considered the
R.C. 2929.12 factors when determining Sharp’s sentence. At sentencing, Sharp
maintained that he does not have a criminal history, is not a violent person, and
Zoloft caused him to become violent. R.C. 2929.12(C)(4), (E)(2), and (E)(3).
However, Sharp self-reported a history of domestic violence, R.C. 2929.12(E)(3),
and the record contains no evidence that Sharp was suffering from a psychotic
episode when he shot the victim. R.C. 2929.12(C)(4). The record also shows that
Sharp shot at the victim six times, striking him once in the thigh of his right leg and
just above the kneecap of his left leg, permanently disabling him. R.C. 2929.12(B)(2)
and (C)(3). After the shooting, Sharp left the victim lying on the ground bleeding,
and a neighbor who heard the shots rushed to Sharp’s aid and applied a tourniquet
to stop the bleeding as they awaited the arrival of EMS. R.C. 2929.12(B)(2).
Sharp also maintained that he acted in self-defense,
R.C. 2929.12(C)(1) and (4), yet by his own admission, Sharp believed the victim
owed him money and brought a gun to the victim’s home, intending either to
threaten him personally to return the money or cause damage to the victim’s
property in the same amount. R.C. 2929.12(C)(1), (3), and (4). The victim said he
learned from a responding officer that Sharp told his girlfriend that he intended to
“hurt” the victim. R.C. 2929.12(C)(3). The trial court found Sharp’s failure to
explain why he shot the victim presented “no way to prevent it from happening
again,” which made him “an extreme danger.” R.C. 2929.12(E)(4). The trial court
considered the unprovoked attack a serious safety concern for the community
despite Sharp’s lack of an extensive or serious criminal history. R.C. 2929.12(C)(2),
(E)(2), and (E)(3). The court also noted that the state took Sharp’s criminal history
into account when it permitted him to plea to felonious assault instead of attempted
murder. R.C. 2929.12(E)(2) and (3).
Sharp maintains that he showed remorse at his sentencing.
R.C. 2929.12(E)(5). However, Sharp’s preceding two arguments that he became
violent due to a bad reaction to Zoloft and that he shot the victim in self-defense
demonstrate that he did not accept responsibility for the shooting.
R.C. 2929.12(D)(5). Nor did the court find Sharp to be particularly contrite given
the permanent injuries he caused to the victim. R.C. 2929.12(D)(5). The record
therefore shows that the trial court weighed the relevant seriousness and recidivism
factors against the mitigation factors that Sharp raised at his sentencing and found
the sentence consistent with the purposes, principles, and factors of felony
sentencing under R.C. 2929.11 and 2929.12.
Because Sharp’s sentence is within the statutory range and the trial
court considered the statutory factors when imposing this sentence, we cannot say
on this record that Sharp’s sentence is clearly and convincingly contrary to law.
Accordingly, we overrule Sharp’s first assignment of error.
We address Sharp’s second and third assignments of error out of
order because our resolution of the third assignment of error renders the second
assignment of error moot. In his third assignment of error, Sharp argues that his
sentence under the Reagan Tokes Law violates (1) the constitutional right to a trial
by jury, (2) the separation-of-powers doctrine, and (3) due process. Our en banc
decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), overruled
the same challenges to the Reagan Tokes Law that Sharp raises in this appeal. State
v. Dix, 8th Dist. Cuyahoga No. 110079, 2022-Ohio-681, ¶ 19. In the second
assignment of error, Sharp argues that he received ineffective assistance of counsel
due to trial counsel’s failure to object to the constitutionality of the Reagan Tokes
Law. Our disposition of the third assignment of error, however, renders the second
assignment of error moot. App.R. 12(A)(1)(c).
Therefore, Sharp’s second and third assignments of error are
overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR