State v. Withrow

[Cite as State v. Withrow, 2016-Ohio-2884.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-24
:
v. : Trial Court Case No. 2014-CR-632
:
TIMOTHY M. WITHROW : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 6th day of May, 2016.
...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting
Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
GREGORY K. LIND, Atty. Reg. No. 0055227, One South Limestone Street, Ground Floor,
Suite D, Springfield, Ohio 45502
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-Appellant, Timothy Withrow, appeals from his conviction and
sentence on two counts of Aggravated Robbery. Following his guilty plea, Withrow was
sentenced to nine years in prison on each charge, with the terms imposed consecutively,
for a total prison term of 18 years.
{¶ 2} In support of his appeal, Withrow contends that the trial court abused its
discretion by failing to impose the shortest prison term authorized by statute. Withrow
further contends that the trial court erred in imposing consecutive sentences. Finally,
Withrow contends that he should not have been convicted of Aggravated Robbery
because elements of the offense are lacking.
{¶ 3} We conclude that the trial court’s sentence, while harsh, complied with the
sentencing requirements and was not clearly and convincingly unsupported by the record.
We further conclude that Withrow’s guilty pleas to Aggravated Robbery were admissions
of the elements of the crime, and cannot be challenged on direct appeal. Accordingly,
the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} Withrow’s convictions arose from a series of robberies committed during a
three-day span in September 2014. At the time, Withrow was 27 years old and had been
a heroin addict for about a year. The two counts of Aggravated Robbery to which
Withrow pled involved robberies at Doc’s Drive Thru and Subway Restaurant in
Springfield, Ohio.
{¶ 5} On September 13, 2014, Withrow brandished a weapon at a cashier at Doc’s
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Drive Thru and demanded money. He received about $200 in cash and fled on foot.
No one was injured as a result of the robbery. On September 14, 2014, Withrow entered
a Subway restaurant and demanded money. He had a weapon, and received $150 in
cash. Again, no one was injured. Charges relating to the third robbery were dismissed,
pursuant to a plea bargain, but that robbery apparently occurred at a BP Station on
September 15, 2014.
{¶ 6} On September 29, 2014, Withrow was indicted for three counts of
Aggravated Robbery, a first-degree felony, with respect to the robberies. Each charge
also carried a gun specification. On January 23, 2015, Withrow pled guilty to Counts
One and Two, and the court dismissed Count Three, as well as the gun specifications.
The trial court then ordered a presentence investigation (“PSI”).
{¶ 7} Prior to sentencing, Withrow filed a sentencing memorandum, indicating that
he had four minor children, whom he and their mother had been raising together. He
and his family had been living in a house that he was purchasing, and he was gainfully
employed at D.H.L. as a forklift driver. Withrow subsequently became addicted to pain
pills, which escalated to a heroin addiction. Since being incarcerated at the Clark County
Jail, Withrow had been attending treatment from McKinley Hall to address his addiction
issues.
{¶ 8} The State did not file a sentencing memorandum. At the sentencing
hearing, which was held on February 25, 2015, the trial court noted that it had read a
letter written on Withrow’s behalf, and had also reviewed the sentencing memorandum
and the PSI.
{¶ 9} The letter, from Withrow’s sister, indicated that Withrow had been raised in a
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single-parent home, with a young mother who struggled financially. In the first few years
of Withrow’s life, he witnessed an alcoholic father who abused their mother, mentally and
physically. The PSI indicated that Withrow felt he had a good childhood, but that his
mother smoked marijuana and his father abused alcohol. In addition, his parents fought
a lot.
{¶ 10} According to the PSI, Withrow had a fairly extensive juvenile record,
beginning at almost 14, when he was declared unruly and placed on probation. In
February 2002, when Withrow was 15, he was charged with Breaking and Entering and
was committed to the Department of Youth Services (D.Y.S.), with the commitment
suspended. He then had further charges, including Breaking and Entering in October
2002, and Aggravated Burglary and Theft in November 2002. He was again committed
to D.Y.S., with the commitment suspended. In June 2003, when Withrow was 17, he
was charged with Breaking and Entering, and was again committed to D.Y.S., with the
sentence suspended.
{¶ 11} From that time until September 2014, Withrow incurred only minor traffic
offenses as well as a Domestic Violence charge in February 2005, which was reduced to
a lesser offense. Therefore, Withrow had no adult felony convictions and had led a
primarily law-abiding life for a substantial period of time.
{¶ 12} The PSI noted that Withrow had related a significant chemical abuse
history: he first smoked marijuana at age 13; he first used cocaine when he was 14; he
first used crack cocaine when he was 15; he first used Percocet and Vicodin when he
was 17; and he first used heroin when he was 26. He had also huffed gasoline between
the ages of 11 and 13. His last use of marijuana, cocaine, crack cocaine, and heroin
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was on September 17, 2014, or shortly before his arrest for the charges involved in the
case before us.
{¶ 13} No victims spoke at the sentencing hearing. Withrow made the following
comments to the court:
First of all, I’d like to tell the people, if they are here, that when this
offense occurred that I sincerely apologize. I’m sorry. And I’m broken for
what I done [sic] and what I do. I am an addict. A year-and-a-half ago my
life was good for me and my four kids and my family and, you know, my
problems started when I began using prescription medication, and I found
heroin to be easier to get and it just became a big problem. My addiction
grew and it became a terrible habit.
It wasn’t long before my life revolved around it and every day was a
panic just to find a way to stay well. And I lost my self-worth and self-
respect and my job and I lost my home. I lost my family. This thing that I
was doing and the situations I put myself in, I didn’t see what I was doing.
You know, I thank God today that what happened did happen. I
believe that if it didn’t, you know, it could have been worse.
Since I have been in jail, I have struggled through physical, mental
and emotional and battled with myself for what I have done, for all the hurt
and destruction that I put on myself and the people around me.
I am glad that I no longer have to wake up sick. The hassle with being
sick and doing the drugs. Every day I think about the fear and resentment
and self-pity that has been removed from my life.
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I owe my life to God which has made all the good things possible in
my life. I might be in a terrible situation but I can just look for the positive
things that’s going on in my life. And I since I have been in jail, I have
participated in N.A. groups and A.A. groups, McKinley Hall groups. I
graduated a parenting program called On My Shoulders, and I just want to
be a better father and a better member of my community. That’s all I have
to say.
And I know when I fail to plan, I plan to fail. And I do have plans for
whenever I do get out. Thank you.
Transcript of February 25, 2015 Sentencing Hearing, pp. 4-6.
{¶ 14} After considering the above matters, the trial court concluded that Withrow’s
“history of criminal conduct[,] more specifically, delinquent conduct, demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
defendant.” Id. at p. 8. The court further stated that “And that at least two of these
multiple offense [sic] were committed as a part of a course of conduct and the harm
caused was so great or unusual that no single prison term adequately reflects the
seriousness of his conduct.” Id. at pp. 8-9. The court, therefore, sentenced Withrow to
nearly the maximum sentences on each crime, and imposed the sentences consecutively,
for a total of 18 years in prison.
{¶ 15} Withrow now appeals from his convictions and sentences.
II. Imposition of Shortest Prison Term Authorized
{¶ 16} Withrow’s First Assignment of Error states that:
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The Court Abused Its Discretion by Failing to Impose the Shortest
Prison Term Authorized by Section 2929.14(A)(1) and 2929.14(B) of the
Ohio Revised Code.
{¶ 17} Under this assignment of error, Withrow contends that the trial court abused
its discretion by failing to impose the shortest sentence that was statutorily authorized.
In this regard, Withrow focuses on the fact that the range of sentences for his crimes was
three to 11 years; that his conduct was less serious than conduct normally constituting
the offense; and that there were substantial grounds in mitigation, including that he had
no adult criminal record other than a Domestic Violence case, that no one was harmed,
and that his actions were due to a recent heroin addiction. In response, the State argues
that the sentence is supported by the record, and that the trial court made the appropriate
findings.
{¶ 18} The crimes to which Withrow pled guilty were first-degree felonies, and the
potential range of sentences was from three to eleven years in prison. See R.C.
2929.14(A)(1). The trial court’s sentence was not the maximum penalty, but was in the
upper range for the crimes.
{¶ 19} As an initial matter, we note that even though Withrow asserts that our court
applies an abuse of discretion standard in reviewing sentences, this is incorrect. We
have said many times that we no longer apply an abuse of discretion standard. See,
e.g., State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.); State v. Kay, 2d
Dist. Montgomery No. 26344, 2015-Ohio-4403, ¶ 15; State v. Mabra, 2d Dist. Clark No.
2014-CA-147, 2015-Ohio-5493, ¶ 43. The Supreme Court of Ohio has recently agreed
with this position. State v. Marcum, Slip. Op. No. 2016-Ohio-1002. As a result, we will
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apply the standard approved by the Supreme Court of Ohio, which states that “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. In other words,
an appellate court need not apply the test set out by the plurality in State v. Kalish, 120
Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124.” Id. at ¶ 1.
{¶ 20} In reviewing sentences, we are thus constrained by the standard of review
in R.C. 2953.08(G), which provides that, after reviewing the record:
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(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;
(b) That the sentence is otherwise contrary to law.
{¶ 21} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” (Citation omitted.)
State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶ 62. Accord State
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v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14. Nonetheless, the court
“must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C.
2929.12.” (Citations omitted.) Nelson at ¶ 62.
{¶ 22} In its sentencing entry, the trial court stated that it had considered the
principles and purposes of sentencing under R.C. 2929.11 and had balanced the
seriousness and recidivism factors under R.C. 2929.12. Doc. #22, p. 1. The sentences
were within the statutory range, even though they were on the high end, and the trial court
stated that it had considered Withrow’s prior criminal history. While we may not have
imposed such a harsh sentence, our review in sentencing is extremely deferential,
because the “ ‘the “clear and convincing” standard used by R.C. 2953.08(G)(2) is written
in the negative. It does not say that the trial judge must have clear and convincing
evidence to support its findings. Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court's findings.’ ” State v. Salyer,
2d Dist. Champaign No. 2013-CA-60, 2015-Ohio-2431, ¶ 21, quoting State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.). Again, this is the standard approved
by the Supreme Court of Ohio. Marcum, Slip. Op. No. 2016-Ohio-1002, at ¶ 1.
{¶ 23} In Marcum, the court also commented that:
We note that some sentences do not require the findings that R.C.
2953.08(G) specifically addresses. Nevertheless, 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. That is, an appellate
court may vacate or modify any sentence that is not clearly and convincingly
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contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.
Id. at ¶ 23.
{¶ 24} In view of the deference we must give to the trial court, we cannot say that
the court erred in failing to impose the shortest term available for Withrow’s crimes.
Accordingly, the First Assignment of Error is overruled.
III. Consecutive Sentences
{¶ 25} Withrow’s Second Assignment of Error states that:
The Trial Court Erred and Abused Its Discretion in Imposing
Consecutive Sentences on the Appellant Totaling 18 Years in Prison.
{¶ 26} Under this assignment of error, Withrow contends that the trial court should
have imposed mid-level, concurrent sentences, in view of the evidence before the trial
court. Again, our review is not for abuse of discretion.
{¶ 27} If a defendant challenges a trial court's consecutive-sentence findings,
“R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the
findings underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court's findings
under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ ” State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting R.C.
2953.08(G)(2)(a).
{¶ 28} “There are two ways that a defendant can challenge consecutive sentences
on appeal. First, the defendant can argue that consecutive sentences are contrary to
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law because the court failed to make the necessary findings required by R.C.
2929.14(C)(4).” (Emphasis sic.) State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-
Ohio-1160, ¶ 17, citing R.C. 2953.08(G)(2)(b) and Bonnell at ¶ 29. “Second, the
defendant can argue that the record does not support the findings made under R.C.
2929.14(C)(4).” Id., citing R.C. 2953.08(G)(2)(a) and State v. Moore, 2014-Ohio-5135,
24 N.E.3d 1197 (8th Dist.).
{¶ 29} R.C. 2929.14(C)(4) is an exception to the presumption in favor of concurrent
sentences in R.C. 2929.41(A). In this regard, R.C. 2929.14(C) provides that:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(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 post-release 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
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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.
{¶ 30} Withrow concedes that the trial court made the required statutory findings,
and we agree that there was no error in this regard. The trial court made the appropriate
statements, as well as additional findings under R.C. 2929.14(C)(4)(b) that “the harm
caused by two or more of the multiple offenses * * * 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;” and R.C. 2929.14(C)(4)(c)
that Withrow’s history of criminal conduct demonstrated that consecutive sentences were
necessary to protect the public.
{¶ 31} In Bonnell, the Supreme Court of Ohio stressed that a trial court “has no
obligation to state reasons to support its findings” in connection with the statutory findings
required to impose consecutive sentences under R.C. 2929.14(C)(4). Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus. As a result, the trial court
properly fulfilled its obligation in this regard, and there was no error.
{¶ 32} Regarding the second potential basis for error, i.e., that the sentence is
clearly and convincingly unsupported by the record, we note that trial courts are guided
by the sentencing principles in R.C. 2929.11. They are also required to consider the
sentencing factors in R.C. 2929.12, but “need not articulate their considerations explicitly
on the record.” State v. Mabra, 2d Dist. Clark No. 2014-CA-147, 2015-Ohio-5493, ¶ 56.
Instead, “even a silent record raises the presumption that the trial court considered the
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factors contained in R.C. 2929.12.” Id., citing State v. Adams, 37 Ohio St.3d 295, 525
N.E.2d 1361 (1988), paragraph three of the syllabus. (Other citation omitted.)
{¶ 33} R.C. 2929.12(B) contains a list of nine factors indicating that an “offender’s
conduct is more serious than conduct normally constituting the offense * * *.” As was
noted, the trial court stated, in imposing consecutive sentences, that the harm caused by
Withrow’s multiple crimes was so great or unusual that no single term would adequately
reflect the seriousness of Withrow’s conduct.
{¶ 34} Although not one of the factors listed in R.C. 2929.12(B) was present, R.C.
2929.12(B) does allow trial courts to consider any other relevant factors that would make
an offender’s conduct more serious than conduct normally constituting the offense.
Withrow was very aggressive towards the victims. He pointed a gun at the individuals
being robbed, and pointed a gun into the back of one of the victims.
{¶ 35} The trial court also stated in the sentencing hearing that Withrow’s “criminal
history, specifically delinquent conduct,” demonstrated that consecutive sentences were
necessary to protect the public. Transcript of February 25, 2015 Sentencing Hearing, p.
8. This was a finding under R.C. 2929.14(C)(4)(c).
{¶ 36} As was noted, Withrow had a fairly substantial juvenile record. However,
after Withrow turned 18 in November 2004, he had no felony convictions and appeared
to have led a law-abiding life for almost ten years, other than incurring what appears to
have been a misdemeanor domestic violence conviction in 2005 and a few convictions
for traffic offenses. Withrow was also addicted to heroin, had expressed significant
remorse for his actions, and had pursued treatment while incarcerated. The prior
delinquency indicates a potential for recidivism, a factor under R.C. 2929.12(D) that
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indicates a likelihood to commit future crimes. The effect of that factor is diminished by
Withrow’s relative lack of transgressions in the ten years after he became an adult. As
to factors indicating a likelihood that Withrow would not commit future crimes, the only
negative factor, again, is his delinquency as a child. See R.C. 2929.12(E).
{¶ 37} Despite these facts, “appellate courts are prohibited from substituting their
judgment for that of the trial judge.” (Emphasis sic.) State v. Overholser, 2d Dist. Clark
No. 2014-CA-42, 2015-Ohio-1980, ¶ 38 (Welbaum, J., dissenting). As a result, we must
affirm the decision of the trial court even though we might be persuaded that the trial
court’s decision in this regard “constitutes an absence of the exercise of discretion * * *.”
Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, at ¶ 35 (Hall, J., dissenting).
{¶ 38} This is an extremely close case in which the outcome differs based upon
how the standard of review in R.C. 2953.08(G)(2) is applied to the facts of the case.
Appellate judges sometimes disagree with sentences, yet affirm based upon the
applicable standard of review set forth in R.C. 2953.08(G)(2). This statute provides that
where a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an
appellate court may not reverse the trial court’s imposition of consecutive sentences
unless it first clearly and convincingly finds that the record does not support the trial court’s
findings. The restriction applies to appellate courts, not trial judges. It is a very
deferential standard of review, prohibiting appellate courts from substituting their
judgment for that of trial judges. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 31,
citing Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶ 21. Therefore, the question is not
whether the trial court had clear and convincing evidence to support its findings, but
rather, whether we clearly and convincingly find that the record fails to support the trial
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court’s findings. Id. As was noted, the Supreme Court of Ohio has recently approved
this standard. Marcum, Slip Op. No. 2016-Ohio-1002.
{¶ 39} The dissenting opinion in Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-
4403, is correct in that the consecutive nature of the trial court’s sentencing should stand
unless the record overwhelmingly supports a contrary result. Id. at ¶ 26 (Hall, J.,
dissenting).
{¶ 40} In this case, the record supporting the trial court findings is thin, but does
not overwhelmingly support a contrary result concerning the imposition of consecutive
sentences. Based on the facts the trial court outlined, it is difficult to clearly and
convincingly find that that the record fails to support the trial court’s consecutive sentence
findings. “[E]ven a record that is largely silent is not clearly and convincingly contrary to
a trial court's consecutive-sentencing determination unless there is substantial affirmative
factual information in support of the defendant to conclude that the trial court is clearly
wrong.” Kay at ¶ 27 (Hall, J., dissenting). Here, the factual information in the record
indicates the trial court’s findings are debatable, but are not clearly wrong.
{¶ 41} The consecutive sentence finding that is debatable is whether “consecutive
sentences are not disproportionate * * * to the danger the offender poses to the public.”
Admittedly, there are aspects of the record that are troubling about this finding, like the
fact that Withrow is a first time adult felony offender, and that he had led a substantially
law-abiding life for quite a few years prior to his heroin addiction.
{¶ 42} While Withrow’s lack of an adult criminal record tends to indicate that he
poses a minimal danger to the public, other parts of the record support the trial court’s
finding that consecutive sentences are not disproportionate to the danger he poses.
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Specifically, Withrow engaged in a course of criminal conduct over a three-day period of
time. The fact that the crime was not a one-time incident, but was an ongoing criminal
endeavor against multiple victims, indicates that he has the ability to continue down a
criminal path, thereby exhibiting a sustained danger to members of the public. The
aggressive manner in which Withrow committed the crimes carries weight. Moreover,
although the imposition of consecutive sentences must not be disproportionate to the
seriousness of the harm, the harm need not be physical.
{¶ 43} Based on the preceding discussion, the Second Assignment of Error is
overruled.
IV. Conviction for Aggravated Robbery
{¶ 44} Withrow’s Third Assignment of Error states that:
The Appellant Should Not Have Been Convicted of Aggravated
Robbery When the Elements of the Offense are Lacking. Thus, the
Appellant was Deprived of His Right to Due Process in Violation of the Fifth
and Fourteenth Amendments to the U.S. Constitution and Article I, Section
10, of the Ohio Constitution.
{¶ 45} Under this assignment of error, Withrow contends that he should not have
been convicted for Aggravated Robbery because the weapon he displayed or used during
the thefts was a pellet gun, rather than a deadly weapon. This potential fact was not
mentioned prior to the plea, and was simply mentioned to the probation department during
the PSI. No gun was ever located.
{¶ 46} The indictment alleged, with respect to both Counts One and Two, that
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Withrow had violated R.C. 2911.01(A)(1). In pertinent part, R.C. 2911.01(A)(1) states
that:
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under
the offender's control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it * * *.
{¶ 47} After Withrow pled guilty to both violations of R.C. 2911.01, the trial court
accepted the plea, and found Withrow guilty. The effect of a guilty plea is “a complete
admission of the defendant's guilt” concerning the offenses for which the plea is entered.
Crim.R. 11(B)(1). A guilty plea “provides the necessary proof of the elements of the
crime and sufficient evidence to support the conviction.” State v. Isbell, 12th Dist. Butler
No. CA2003-06-152, 2004-Ohio-2300, ¶ 16. As a result, by pleading guilty, Withrow
admitted that he had used a deadly weapon in committing his theft offenses, and he
cannot challenge that admission in this proceeding.
{¶ 48} Based on the preceding discussion, the Third Assignment of Error is
overruled.
IV. Conclusion
{¶ 49} All of Withrow’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
FAIN, J., concurs.
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DONOVAN, P.J., dissenting:
{¶ 50} I dissent. This consecutive sentence of eighteen years is more than
harsh.
{¶ 51} The fact that the trial court’s judgment is subject to a deferential standard
of review under Marcum does not immunize it from meaningful appellate review. The
Marcum decision has not dispatched appellate review into oblivion. “Judges,
policymakers and commentators have all lamented that restoring judicial discretion will
return us to the bad old days of ‘lawless’ sentencing. Sentencing authority need not be
a binary choice between rigid rules and personal predilections of judges. As Sir James
Fitzjames Stephen explained more than a century ago, judicial discretion need not be
‘wholly personal and subject to no regulations at all.’ ” 1 Unquestionably, these two
convictions for aggravated robbery are serious offenses and warrant imprisonment, but I
clearly and convincingly find that consecutive terms are not supported on this record.
{¶ 52} Our analysis should begin with the fact that concurrent sentences are not
just a guideline or recommendation under Ohio’s sentencing scheme, they constitute a
benchmark. R.C. 2929.14(C)(4) is an exception to the presumption of concurrent
sentences set forth in R.C. 2929.41(A). In 1996, the Ohio General Assembly enacted
this major statutory revision of felony sentencing, which, inter alia, limited judicial
discretion regarding the imposition of consecutive sentences and established a
presumption in favor of concurrent sentences. Am.Sub.S.B. No. 2, 146 Ohio Laws, Part
1
Carissa Byrne Hessick & Douglas A. Berman, Towards A Theory of Mitigation, 96 B.U.L.
Rev. 161, 218 (2016), citing James Fitzjames Stephen, Variations in the Punishment of
Crime, 17 Nineteenth Century, 755, 766 (1885).
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IV, 7136, effective July 1, 1996.
{¶ 53} Pursuant to R.C. 2929.11:
A) A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the
offender and others and to punish the offender using the minimum
sanctions that the court determines accomplish those purposes without
imposing an unnecessary buden on state or local government
resources. To achieve those purposes, the sentencing court shall
consider the need for incapacitating the offender, deterring the offender
and others from future crime, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or both.
B) A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth in
division (A) of this section, 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.
{¶ 54} This enactment of the Ohio legislature cannot be repeatedly overlooked and
trivialized.2 Although the legislature recognizes a discretionary exception for multiple
2 See State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082 (2d
Dist.); State v. Hicks, 2d Dist. Greene No. 2015 CA 20, 2016-Ohio-1420; State v.
Overholser, 2d Dist. Clark No. 2014 CA 42, 2015-Ohio-1980; State v. Adams, 2d Dist.
Clark No. 2014 CA 13, 2015-Ohio-1160; State v. Wells, 2015-Ohio-3511, 41 N.E.3d 216(2d Dist.); State v. Morefield, 2d Dist. Clark No. 2015 CA 4, 2015-Ohio-4713.
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offenses when certain findings are made, such findings should not completely preclude
meaningful appellate review. The trial court must give serious consideration to the
departure from concurrent terms and not utilize consecutive terms as the presumptive
starting point. Concurrent terms for Withrow could have been as great as 11 years. It
is difficult to comprehend how 9 or 11 years are not the minimum which will accomplish
the purposes of felony sentence without imposing an unnecessary burden on state
correctional resources. Merely labeling the harm “as so great or so unusual” is
insufficient. Our review of the record must include whether the presumption was
overcome by the findings set forth in R.C. 2929.14(C)(4). Here this subjective finding of
“harm so great or unusual” is wholly without support in the record. Notably, the fact that
a victim(s) suffers serious physical, psychological or emotional harm is, likewise, a
consideration under R.C. 2929.12(B)(2), making an offender’s conduct more serious than
conduct normally constituting the offense. However, although the PSI contains photos
of an aggravated robbery, there are no victim impact statements either oral or written
which establish a serious physical, psychological, or emotional injury greater than the
normal offense of a convenience store robbery.
{¶ 55} I’d also note the pre-sentence report erroneously indicates that Withrow has
one or two prior adult felony convictions.3 However, the record attached to the pre-
sentence investigation report establishes that Withrow has no felony arrests or
3
Attached to the PSI is an Ohio Risk Assessment System Report (ORAS) and at page 1
thereof it indicates “Number of Prior Adult Felony Convictions” as “One or Two.” I’d
acknowledge that “ORAS is a work in progress and is not a litmus test for sentencing.”
State v. Jennings, 2d Dist. Clark No. 2013-CA-60, 2014-Ohio-2307, ¶ 28. However, the
information contained therein should be completely accurate.
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convictions as an adult. Withrow’s solitary misdemeanor adult conviction resulted in ten
days of local jail time after the original misdemeanor domestic violence charge was
reduced to an unidentified lesser offense. Furthermore, the trial court assumed it was a
domestic violence conviction, ostensibly a fourth degree misdemeanor, but it may just as
readily have been a reduction to disorderly conduct. Nevertheless, there should be no
speculation on this point by the trial court.
{¶ 56} I recognize that Withrow has a juvenile record, but it does not include any
violent conduct and it occurred twelve to thirteen years ago when he was sixteen or
seventeen years of age; he is now thirty. This lengthy gap of no prior adult felony criminal
activity and a singular criminal misdemeanor conviction as an adult was completely
ignored by the trial court. Furthermore, there are no failed efforts in drug treatment by
Withrow as an adult, yet it is undisputed that he committed these crimes due to a heroin
addiction. He also has a demonstrated employment history along with four children to
support.
{¶ 57} Mr. Justice Stewart, while on the United States Court of Appeals for the
Sixth Circuit, noted this about sentencing:
Justice is measured in many ways, but to a convicted criminal its
surest measure lies in the fairness of the sentence he receives. . . . It is an
anomaly that a judicial system which has developed so scrupulous a
concern for the protection of a criminal defendant throughout every other
stage of the proceedings against him should have so neglected this most
important dimension of fundamental justice.
Shepard v. United States, 257 F.2d 293, 294 (6th Cir. 1958).
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{¶ 58} Finally, the majority suggests, relying upon the dissent in Kay, that “the
factual information in the record indicates the trial court’s findings are debatable but are
not clearly wrong.” However, the findings made to impose consecutive sentences need
not be clearly wrong to justify reversal or modification. Marcum (not a consecutive
sentencing case) adopted the clear and convincing standard set forth in Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954). In Cross, the Ohio Supreme Court
emphasized that clear and convincing is not the same as “clear and unequivocal.” Id.,
477. I’d note that in State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536,
the defendant therein challenged his consecutive sentencing on two counts of rape of a
child under ten years old, and the Eighth District, relying upon this Court’s majority opinion
in Kay, noted that “ ‘[e]ven when one of the offenses is a conviction for murder, [R.C.
2929.14(C)(b)] still requires a finding that the course of conduct surrounding all the
multiple offenses resulted in harm more egregious or unusual than the harm resulting
from other multiple offenses.’ ” Johnson, ¶ 21, quoting Kay, ¶ 18. The Eighth District
concluded that on the record before it, there was “nothing * * * about the facts of this case
that resulted in harm more egregious or unusual than the harm resulting from other similar
offenses.” Johnson, id. This analysis applies equally here. Yet the majority herein
applies a more onerous standard (debatable but not clearly wrong), contrary to our prior
jurisprudence in Kay, which recognizes the Cross standard.
{¶ 59} I am left with a definite and firm conviction that the trial court erred by
imposing a consecutive term of imprisonment which clearly and convincingly lacks
support in the record. I would reverse and vacate the eighteen-year sentence and order
the trial court to impose a concurrent term of imprisonment.
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.............
Copies mailed to:
Ryan A. Saunders
Gregory K. Lind
Hon. Douglas M. Rastatter