State v. Faiola

[Cite as State v. Faiola, 2022-Ohio-1126.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MICHAEL FAIOLA,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0094
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 21 CR 120
BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Mahoning County Prosecutor, Mahoning County Prosecutor's Office, 21 West Boardman
Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and
Atty. Christopher P. Lacich, Roth, Blair, Roberts, Strasfeld & Lodge, 100 Federal St., East,
Suite 600, Youngstown, Ohio 44503, for Defendant-Appellant.
–2–
Dated: March 31, 2022
Robb, J.
{¶1} Defendant-Appellant Michael Albert Faiola, Jr., appeals from the prison
sentence imposed by the Mahoning County Common Pleas after he pled guilty to two
offenses. Appellant believes the court should have imposed community control because
his offenses were not serious and claims the sentence was clearly and convincingly
contrary to law. For the following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On March 25, 2021, Appellant was indicted on five offenses arising out of
an incident occurring on February 19, 2021 at Walmart. He pled guilty to count one, a
charge related to his possession of a dangerous drug (baclofen) which was a fifth-degree
felony due to a prior related conviction. See R.C. 4729.51(E)(1)(c); R.C. 4729.99(H). He
also pled guilty to count five, which was petty theft, a first-degree misdemeanor. See
R.C. 2913.02(A)(3). The state dismissed a second drug charge after the substance
returned a negative test result. As part of the plea agreement, the state also agreed to
dismiss a first-degree misdemeanor drug abuse instrument count (possession of a used
“hypodermic or syringe”) and a fourth-degree misdemeanor drug paraphernalia count.
{¶3} At the August 19, 2021 plea hearing, the state pointed out it would be
recommending a prison term due to Appellant’s extensive criminal record. (Plea Tr. 3).
The court advised Appellant in accordance with Crim.R. 11 and accepted the plea. Before
the court granted the state’s request for a presentence investigation (PSI), defense
counsel acknowledged Appellant was on post-release control and understood he could
be subject to revocation upon entering the guilty plea. (Plea Tr. 18).
{¶4} At the sentencing hearing, the state recommended prison by emphasizing
Appellant’s significant criminal history, repeat drug and theft offenses over 20 years, and
multiple chances of community control with violations nearly every time. It was pointed
out Appellant’s bond was revoked less than two weeks after the plea hearing when
Appellant was ejected from a treatment program and indicated to his probation officer that
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he had been using drugs again. (Sent.Tr. 3). The state concluded this showed Appellant
was not amenable to community control.
{¶5} Defense counsel asked for community control or a term at Community
Corrections Association (CCA), arguing: Appellant was 37 years old with a supportive
family; he recently demonstrated amenability to a non-prison sanction as he was
successful in the drug treatment program for six months before the bond revocation; he
was ejected from the treatment program merely for failing to submit to a drug test, causing
a presumptive positive under the treatment center’s policy; he told counsel he did not
admit drug use to his probation officer; the CCA alternative does not always work the first
few times; and it had been many years since he was provided this alternative. (Sent.Tr.
5-6, 9, 11-12). Counsel pointed out the drug offense to which Appellant pled guilty merely
involved one pill and would have been a misdemeanor if not for a prior drug conviction.
(Sent.Tr. 4).
{¶6} Appellant acknowledged he deserved his past prison terms. (Sent.Tr. 8).
On the topic of his most recent drug treatment, Appellant informed the court: he did not
even drink alcohol during those six months; he learned much about his life; it was the first
time he truly accepted the information presented by a recovery program; and he made
the mistake of continuing to associate with prior acquaintances. (Sent.Tr. 7, 12).
{¶7} The court pointed out Appellant had been through CCA several times.
(Sent.Tr. 10-11, 13). The court observed Appellant: had an extensive criminal history
(including juvenile) with prior prison terms; was unsuccessful at numerous attempts at
rehabilitation; failed to respond favorably to prior sanctions by violating community control
and reoffending; and was on post-release control in two cases (19 CR 884 and 18 CR
58) at the time of the current offenses. (Sent.Tr. 14-15). The court concluded a non-
prison sentence would not adequately protect the public and punish Appellant.
{¶8} The court sentenced Appellant to the maximum sentence of 12 months in
prison for the fifth-degree felony drug offense with a concurrent sentence of 180 days for
the first-degree misdemeanor petty theft. He received 32 days of jail time credit.
Appellant filed a timely notice of appeal from the October 1, 2021 sentencing entry.
ASSIGNMENT OF ERROR
{¶9} Appellant’s assignment of error contends:
Case No. 21 MA 0094
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“THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY AND
CONVINCINGLY CONTRARY TO LAW BY FAILING TO GRANT A SENTENCE OF
COMMUNITY CONTROL.”
{¶10} Appellant contends the sentence should be modified or reversed and
remanded, urging it was clearly and convincingly contrary to law to impose a sentence of
incarceration. He notes he already served 32 days in jail before sentencing and claims a
sentence to time-served plus community control was appropriate. He describes the
crimes as “miniscule” and observes the drug offense involving one pill would have been
a misdemeanor if not for prior convictions. He also points to his substance abuse problem
and his admission of guilt.
{¶11} In felony sentencing, “[t]he appellate court's standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). The court can
vacate or modify a felony sentence if it clearly and convincingly finds either: “(a) That the
record does not support the sentencing court's findings under division (B) or (D) of section
2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20
of the Revised Code, whichever, if any, is relevant; [or] (b) That the sentence is otherwise
contrary to law.” Id.1
{¶12} As the state points out, R.C. 2929.13(B)(1)(a) says the court shall impose
community control for this type of fifth-degree felony if all of the listed conditions are met,
unless (B)(1)(b) applies. First, Appellant did not meet the condition in subdivision
(B)(1)(a)(i) requiring no prior felony convictions. Moreover, under subdivision (B)(1)(b),
the court has discretion to impose prison for a fifth-degree felony where (as here) “[t]he
offender violated a term of the conditions of bond as set by the court” or “at the time of
the offense was serving, or the offender previously had served, a prison term.” R.C.
2929.13(B)(1)(b)(iii),(xi). In such case, “the sentencing court shall comply with the
purposes and principles of sentencing under section 2929.11 of the Revised Code and
with section 2929.12 of the Revised Code.” R.C. 2929.13(B)(2)(b).
1
The other statutes cited in R.C. 2953.08(G)(2)(a) are irrelevant here: R.C. 2929.13(D) deals with findings
required in order to impose community control in cases where there is a presumption in favor of prison;
R.C. 2929.14(C)(4) applies to consecutive sentences; and R.C. 2929.20(I) is a judicial release provision.
Case No. 21 MA 0094
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{¶13} “[A] trial court is not required to make specific findings when imposing a
prison sentence pursuant to R.C. 2929.13(B)(1)(b).” State v. Benson, 7th Dist. Mahoning
No. 18 MA 0042, 2019-Ohio-4635, ¶ 13, citing State v. Floyd, 7th Dist. Belmont No. 15
BE 61, 2017-Ohio-4278, ¶ 7 (affirming a prison sentence because the record established
the defendant violated the conditions of bond, despite the trial court's failure to make
specific findings at the sentencing hearing). See also State v. Lewis, 3d Dist. Marion No.
9-20-49, 2021-Ohio-1692, ¶ 16, quoting State v. Paxon, 11th Dist. Trumbull No. 2019-T-
0011, 2019-Ohio-3551, ¶ 18 (“the statute does not require a court to explicitly make a
finding before it has discretion to impose prison. Instead, a plain reading of the applicable
version of R.C. 2929.13(B)(1)(b) confirms that if any of the factors apply, the court has
discretion to impose a prison term”).2
{¶14} Appellant cites Marcum where the Supreme Court held “an appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the trial court's findings under
relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Although the sentencing statute
only listed specific statutes, the Marcum Court additionally said “it is fully consistent for
appellate courts to review those sentences that are imposed solely after consideration of
the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to
the sentencing court.” Id. at ¶ 23. However, this statement has since been declared dicta
and rejected. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶
28.
{¶15} As the state points out, the Supreme Court in Jones decided a reviewing
court cannot use subdivision (G)(2)(a) of R.C. 2953.08 to review whether the record
supports R.C. 2929.11 or R.C. 2929.12 findings as those statutes are not listed in
(G)(2)(a). Jones, 163 Ohio St.3d 242 at ¶ 27-29. “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 (“In particular, R.C. 2953.08(G)(2) does not
2
And, a maximum felony sentence does not require specific findings. See, e.g., State v. Tubbs, 7th Dist.
Mahoning No. 18 MA 0094, 2020-Ohio-730, ¶ 63.
Case No. 21 MA 0094
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permit an appellate court to conduct a freestanding inquiry like the independent sentence
evaluation” the Court must conduct when reviewing a death-penalty sentence). The
“otherwise contrary to law” language in the sentencing review statute does not allow the
appellate court to reverse by finding “the record does not support the sentence.” Id. at ¶
38. See also State v. Toles, __ Ohio St.3d __, 2021-Ohio-3531, __ N.E.3d __ (affirming
based on Jones where a defendant argued the record did not support certain findings).
{¶16} In any event, Appellant’s sentence is supported by the purposes and
principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in
R.C. 2929.12. Appellant insists the drug offense was not serious. However, it was for
the trial court to decide whether such claim was outweighed by the recidivism factors and
any other factor the court believed was relevant. “[A] court that imposes a sentence under
this chapter upon an offender for a felony has discretion to determine the most effective
way to comply with the purposes and principles of sentencing set forth in section 2929.11
of the Revised Code.” R.C. 2929.12(A) (upon considering the factors in the statute and
“any other factors that are relevant to achieving those purposes and principles of
sentencing.”).
{¶17} “[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any
specific factual findings on the record.” Id. at ¶ 20, citing State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31 and State v. Arnett, 88 Ohio St.3d 208, 215,
724 N.E.2d 793 (2000). Still, at sentencing and in the judgment entry, the trial court
declared that it reviewed the purposes and principles of sentencing in R.C. 2929.11 and
the seriousness and recidivism factors in R.C. 2929.12. Furthermore, the court made
various findings and concluded a non-prison sentence would not adequately protect the
public and punish Appellant.
{¶18} As the court emphasized, Appellant had an extensive criminal record
spanning 20 years starting with a delinquency matter. See R.C. 2929.12(D)(2) (recidivism
is more likely where the offender previously was adjudicated a delinquent child or has a
history of criminal convictions). See also R.C. 2929.12(E)(1)-(2). The court pointed to its
evaluation of the PSI, which this court has reviewed. As found by the trial court, Appellant
served prior prison terms and failed to respond favorably to prior sanctions as
demonstrated by his behavior of reoffending and violating community control. See R.C.
Case No. 21 MA 0094
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2929.12(D)(4) (recidivism is more likely where the offender has not responded favorably
to sanctions previously imposed for criminal convictions). Furthermore, as the court
reported, Appellant was on post-release control in two cases when he committed the
current offense. See R.C. 2929.12(D) (recidivism more likely if the offense was
committed while under post-release control).
{¶19} It was observed by the court that Appellant had been through CCA multiple
times in the past. While counsel noted those CCA opportunities were many years ago,
Appellant was also unsuccessful at numerous attempts at rehabilitation through various
treatment programs, as underscored by the trial court. Although Appellant acknowledged
a demonstrated pattern of drug abuse as related to the offense and said he wanted
treatment, he was ejected from a program just weeks prior to sentencing. See R.C.
2929.12(D)(4). As discussed at sentencing, this resulted in the revocation of Appellant’s
bond in this case less than two weeks after he entered his guilty plea. Moreover, one
could conclude Appellant did not lead “a law-abiding life for a significant number of years”
prior to committing these offenses. See R.C. 2929.12(E)(3). In addition, there is no
indication the offense was “committed under circumstances not likely to recur.” See R.C.
2929.12(E)(4).
{¶20} In sum, it was not clearly and convincingly contrary to law for the trial court
to refuse Appellant’s request for community control and to impose a twelve-month
maximum sentence for the fifth-degree felony drug offense.
{¶21} As Appellant is seeking community control, his brief includes the concurrent
180-day sentence for the first-degree misdemeanor theft in his argument against
incarceration (essentially applying the same arguments as presented on the felony drug
offense). When imposing a misdemeanor sentence, a trial court has the “discretion to
determine the most effective way to achieve the purposes and principles of sentencing.”
R.C. 2929.22(A), citing R.C. 2929.21. Before imposing a jail term as a sentence for a
misdemeanor, a court shall consider the appropriateness of imposing a community
control sanction * * *.” R.C. 2929.22(C).
{¶22} Community control was not available as the court was sentencing him to
prison on the felony offense. Appellant does not cite the misdemeanor sentencing
statutes for the 180-day sentence on the theft offense. Nevertheless, we point out the
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standard of review for a misdemeanor sentence is abuse of discretion. State v. Norris,
7th Dist. Noble No. 19 NO 0467, 2020-Ohio-764, ¶ 17. An abuse of discretion requires a
finding that the trial court's decision was unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶23} R.C. 2929.22(B) contains factors for the trial court to consider in choosing
an appropriate misdemeanor sentence. It was reasonable to conclude Appellant was
“likely to commit future crimes in general” and “has a history of persistent criminal activity
and [his] character and condition reveal a substantial risk that [he] will commit another
offense.” See R.C. 2929.22(B)(1)(b),(e). Moreover, the multitude of circumstances
reviewed above in considering the felony sentence are also relevant to the misdemeanor
offense committed at the same time. See R.C. 2929.22(B)(2) (any other relevant factor).
Finally, the court need not make findings or give reasons to support the sentence. State
v. Crable, 7th Dist. Belmont No. 04 BE 17, 20 04-Ohio-6812, ¶ 24. See also State v.
Inman, 4th Dist. Washington No. 19CA27, 2021-Ohio-1573, ¶ 8 (no abuse of discretion
to cite felony sentencing statute where only misdemeanor sentencing occurred). 3 It was
not unreasonable, arbitrary, or unconscionable to impose a maximum sentence for the
misdemeanor theft offense to run concurrent with the felony sentence.
{¶24} For the foregoing reasons, Appellant’s assignment of error is overruled, and
the trial court’s judgment is affirmed.
Waite, J., concurs.
D’Apolito, J., concurs.
3
We note an unraised misdemeanor sentencing statute also provides: “A court may impose the longest
jail term authorized under section 2929.24 of the Revised Code only upon offenders who commit the worst
forms of the offense or upon offenders whose conduct and response to prior sanctions for prior offenses
demonstrate that the imposition of the longest jail term is necessary to deter the offender from committing
a future crime.” R.C. 2929.22(C). “This court and others have ruled the misdemeanor sentencing court is
not bound by this provision to the extent it requires judicial fact-finding for a maximum sentence * * *.” State
v. Burley, 2017-Ohio-378, 83 N.E.3d 322, ¶ 9 (7th Dist.). In any event, Appellant’s conduct and response
to prior sanctions showed a maximum term was necessary to deter him from committing a future crime.
Case No. 21 MA 0094
[Cite as State v. Faiola, 2022-Ohio-1126.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.