State v. Olsen

[Cite as State v. Olsen, 2022-Ohio-1402.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110740
v. :
GLEN A. OLSEN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 28, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-657544-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Timothy Troup, Assistant Prosecuting
Attorney, for appellee.
Jonathan N. Garver, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Glen A. Olsen (“appellant”) appeals the judgment and
sentence of the Cuyahoga County Court of Common Pleas. After a thorough review
of the applicable law and facts, we affirm the judgment of the trial court.
I. Factual and Procedural History
This case appears to have arisen from something of a love triangle
between appellant, LeShawn Wright (“Wright”), the woman to whom appellant
believed he was engaged, and Wright’s boyfriend, Robert Seay (“Seay”). On the day
in question, appellant went to Wright’s house with the intention of damaging Seay’s
vehicle. Seay and Wright were in the house when they heard the windows of Seay’s
vehicle being broken.
Wright and Seay went outside, and Wright approached appellant.
Appellant struck Wright with the baseball bat that he had been using to damage
Seay’s vehicle. Appellant then attempted to drive away, and his vehicle dragged
Wright down the street. Appellant stopped and left Wright lying in the street while
he drove to a nearby gas station. Police were called, and appellant was apprehended
at the gas station with the baseball bat in his hands. Appellant’s actions caused
Wright to suffer serious injuries and caused $9,000 of damage to Seay’s vehicle.
Appellant was indicted on four counts of felonious assault, one count of
tampering with evidence, and one count of criminal damaging. Appellant and the
state entered into a plea bargain, wherein appellant pled guilty to one count of
felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(2),
relating to appellant’s striking Wright with the baseball bat; an amended charge of
attempted felonious assault, a felony of the third degree, in violation of R.C. 2923.02
and 2903.11(A)(1), arising from appellant harming Wright with his motor vehicle;
and one count of criminal damaging, a misdemeanor of the second degree, in
violation of R.C. 2909.06(A)(1), relating to the damage caused to Seay’s vehicle. The
remaining counts were nolled.
Appellant was sentenced on Count 1 to an indefinite term with a
minimum of seven years and a maximum of ten and one-half years in prison. For
the attempted felonious assault charge, appellant was sentenced to two years in
prison to run consecutively to the prison term imposed in Count 1 for a total
aggregate term of a minimum of nine years in prison and a maximum of 12½ years.
Appellant was sentenced to time served for the criminal damaging charge. The court
waived all fines and court costs but imposed restitution in the amount of $400.
Appellant then filed the instant appeal, raising four assignments of
error for our review:
1. The trial court committed prejudicial error by not informing
appellant of the financial penalties for the offenses of felonious assault
and attempted felonious assault before accepting his guilty pleas.
Crim.R. 11(C); Fifth and Fourteenth Amendments to the Constitution
of the United States; Article I, Section 16 of the Constitution of the State
of Ohio.
2. Appellant’s sentencing under the Reagan Tokes law violated the
constitutional guarantees of due process of law and equal protection of
the laws, contrary to the Fifth and Fourteenth Amendments to the
Constitution of the United States and Article I, Sections 2 and 16 of the
Constitution of the State of Ohio.
3. The twelve- and one-half year prison term imposed by the trial court
is excessive, unsupported by the record, and contrary to law.
4. The imposition of a consecutive sentence on Count IV was contrary
to law and a denial of due process of law since the findings necessary
for the imposition of a consecutive sentence for attempted felonious
assault under Count IV of the indictment are not supported by the
evidence.
II. Law and Analysis
In appellant’s first assignment of error, he argues that the trial court
erred by not informing him of the financial penalties for the offenses of felonious
assault and attempted felonious assault before accepting his guilty pleas. Appellant
argues that he would have made a different decision about his plea had he been
informed of the financial penalties.
The following exchange occurred at the plea hearing:
THE COURT: Do you also understand if you enter a plea of guilty the
Court can impose on you court costs, any mandatory fines, require the
payment of restitution, supervision fees, and/or costs of confinement?
THE DEFENDANT: Yes, your Honor.
At sentencing, the court waived fines and court costs. The only financial
penalty imposed against appellant was restitution to Wright for her injuries in the
amount of $400.1
Accordingly, at the time of his plea, the appellant was aware that he
could be subject to restitution but was not advised of the amount that could be
imposed. However, there is no requirement that the trial court must indicate at the
plea hearing the amount of restitution that a defendant will be required to pay. See
State v. Simmons, 8th Dist. Cuyahoga No. 107144, 2019-Ohio-459. Moreover, even
if there were such a requirement, appellant would have to demonstrate that he was
prejudiced by the court’s failure to advise him of the restitution. See State v. Wilson,
8th Dist. Cuyahoga No. 102645, 2015-Ohio-5143, ¶ 11 (no Crim.R. 11 violation where
1 At sentencing, appellant specifically agreed to the restitution amount of $400.
court does not advise defendant about restitution at time of plea hearing when
defendant fails to allege or demonstrate prejudice). Appellant has made no showing
of prejudice here.
Appellant’s first assignment of error is overruled.
Appellant’s second assignment of error argues that his sentence under
the Reagan Tokes Law violated his rights to due process and equal protection under
the law.
We need not dwell on these arguments. The Supreme Court of Ohio
held in State v. Maddox, Slip Opinion No. 2022-Ohio-764, that constitutional
challenges to the Reagan Tokes Law are ripe for review. This court has recently
conducted en banc review of the constitutionality of the Reagan Tokes Law. See
State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470. In Delvallie, we
overruled challenges to the constitutionality of the Reagan Tokes Law (enacted
through S.B. 201) with regard to the right to due process. Thus, pursuant to
Delvallie, we overrule appellant’s due process arguments.
With regard to appellant’s assertion that the Reagan Tokes Law
violates his right to equal protection under the law, we find that appellant has not
expanded on this conclusory statement or presented any authority in support of his
proposition. We decline to craft an argument for him.
Appellant’s second assignment of error is overruled.
In his third assignment of error, appellant argues that his 12- and one-
half year prison sentence was excessive, unsupported by the record, and contrary to
law. Appellant contends that the trial court did not consider mitigating factors
which would have reduced his sentence, to wit: (1) appellant had a “minimal”
criminal history; (2) appellant suffers from bipolar disorder; (3) appellant accepted
full responsibility for his conduct and exhibited genuine remorse; (4) appellant did
not intend to harm the victim; (5) the offense occurred under circumstances not
likely to recur; and (6) the victim induced or facilitated the offense.
R.C. 2953.08(G)(2)(a) does not permit the appellate court to modify
or vacate a sentence based on a lack of support in the record for the trial court’s
findings under R.C. 2929.11 and 2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 29. “Nothing in R.C. 2953.08(G)(2) permits an
appellate court to independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.
Rather, when reviewing a felony sentence that is imposed after a
consideration of R.C. 2929.11 and 2929.12, our review is limited to the question of
whether the sentence is contrary to law. A sentence is contrary to law if (1) the
sentence falls outside the statutory range for the particular degree of offense; or (2)
the trial court failed to consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. See, e.g.,
State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13-14.
Appellant’s sentence for his offenses is within the statutory range, and the record
reflects the trial court had considered the purposes and principles of felony
sentencing in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. We therefore
overrule appellant’s third assignment of error.
Appellant’s final assignment of error argues that the imposition of a
consecutive sentence on the attempted felonious assault charge was contrary to law
and a denial of due process since the findings necessary for the imposition of a
consecutive sentence were not supported by the evidence. Appellant contends that
the record demonstrates that consecutive sentences were not necessary to protect
the public from future crime or to punish the offender and that the sentences
imposed are disproportionate to the seriousness of the conduct and to the danger
the offender poses to the public.
We review consecutive sentences using a “clear and convincing
standard.” State v. Allison, 2017-Ohio-7720, 97 N.E.3d 1043 (8th Dist.). R.C.
2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court
may overturn the imposition of consecutive sentences where the court “clearly and
convincingly” finds that (1) “the record does not support the sentencing court’s
findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to
law.”
R.C. 2929.14(C)(4) provides that in order to impose consecutive
sentences, the trial court must find (1) that consecutive sentences are necessary to
protect the public from future crime or to punish the offender; (2) that such
sentences would not be disproportionate to the seriousness of the conduct and to
the danger the offender poses to the public; and (3) that one of the following applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
Compliance with R.C. 2929.14(C)(4) requires the trial court to make
these statutory findings at the sentencing hearing, where “‘the [trial] court must note
that it engaged in the analysis and that it “has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.”’” State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson,
86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must
be able to discern that the record contains evidence to support the findings. State v.
Davis, 8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29.
A trial court is not, however, required to state its reasoning to support its findings,
nor is it required to give a rote recitation of the statutory language ‘“provided that
the necessary findings can be found in the record and are incorporated in the
sentencing entry.’” Allison at ¶ 10, quoting Bonnell at ¶ 37.
At the sentencing hearing, the trial court stated as follows:
So I’ve had an opportunity to review the presentence investigation
report, I’ve already pointed out the violence that the defendant
displayed as reported in the presentence investigation report that is
extremely disturbing. I’ve also had an opportunity to review the
mitigation of penalty report, hear from you, Mr. Olsen, hear from your
lawyer, hear from the State, hear from the victims involved in this
matter, and I’ve had an opportunity to review the photos of the victim
who was left by you in the street injured severely.
And, again, in reviewing your presentence investigation report, your
criminal history is minimal. And that prior to this incident in the
beginning of this year you had, in 2006, a burglary, a felony of the 3rd
degree, and prior to that a drug offense in 1993, another drug offense
in 1993, driving under the influence in 1993.
However, the violence that you displayed here is overwhelming and the
violence that you displayed to both these victims in this case is
incomprehensible as well. While the situation may have caused you
concern, you may not have liked it, however, it appears you went to the
victim’s home. She wasn’t bothering you. Mr. Seay didn’t appear to be
bothering you as he indicated he didn’t even know you. And you took
it upon yourself to take out your aggression and anger on Ms. Wright
and Mr. Seay. And as I said, the injuries that Ms. Wright sustained are
overwhelming.
So in considering all the relevant seriousness and recidivism factors
and ensuring that the public is protected from future crime and that
you are punished, I find you are not amenable to a community
controlled sanction. I am going to impose a prison sentence. * * *
***
I find that a consecutive sentence is necessary in this case because I find
that the prison sentence is necessary to protect the community and
punish you, it’s not disproportionate, and I also find that the harm is so
great or unusual that a single term does not adequately reflect the
seriousness of the conduct. Your criminal history shows that
consecutive sentences are necessary to protect the public. In addition
to that, there are two victims in this case here, and as I’ve already placed
on the record Ms. Wright sustained serious, serious injuries, physical
injuries as well as hearing from her today considerable psychological
and emotional injuries as a result of you.
And I also find that at least two of the multiple offenses were committed
as part of one or more course of conduct and the harm caused by two
or more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part of
the courses of conduct adequately reflects the seriousness of your
conduct. Again, two victims. One sustained serious physical and
emotional injuries. Another victim, as he describes, seeing serious
injuries as well, financially due to the damage that you caused to the
vehicle. You left the scene. You left the scene with someone in the
middle of the street in a very vulnerable state and injured very severely.
So I find for all those reasons that a consecutive sentence is necessary.
The record shows that the court clearly considered whether
consecutive sentences were necessary to protect the public and that consecutive
sentences would not be disproportionate to the harm caused by appellant in this
instance.
We find that the record supports the imposition of consecutive
sentences and that the trial court did not err. Appellant’s fourth assignment of error
is overruled.
III. Conclusion
The trial court did not err in not informing appellant at the plea
hearing as to the amount of restitution that would be ordered or in imposing
consecutive sentences. Further, appellant’s sentence was not contrary to law and
was proper under the Reagan Tokes Law.
All of appellant’s assignments of error are overruled.
Judgment 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
convictions 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.
FRANK DANIEL CELEBREZZE, III, JUDGE
SEAN C. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR