State v. Houston

[Cite as State v. Houston, 2021-Ohio-3374.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29114
:
v. : Trial Court Case No. 2020-CR-3190
:
CHARLES HOUSTON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of September, 2021.
...........
MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MICHAEL W. HALLOCK, JR., Atty. Reg. No. 0084360, P.O. Box 292017, Dayton, Ohio
45429
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Charles Houston, appeals from his convictions in the
Montgomery County Court of Common Pleas after he pled no contest to two counts of
aggravated vehicular assault and two counts of operating a vehicle while under the
influence of alcohol (“OVI”). In support of his appeal, Houston contends that the
indefinite five-to-seven-and-one-half-year prison sentence he received for aggravated
vehicular assault was contrary to law because the trial court failed to adequately consider
the seriousness and recidivism factors set forth in R.C. 2929.12. For the reasons
outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On March 3, 2021, Houston pled no contest to two second-degree felony
counts of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a). Houston
also pled no contest to two first-degree misdemeanor counts of OVI—one in violation of
R.C. 4511.19(A)(1)(a) and the other in violation of R.C. 4511.19(A)(1)(b). The charges
arose after Houston crashed his vehicle into the back of a parked SUV while driving with
a blood alcohol concentration of 0.146. The collision severely injured the owner of the
parked SUV and the owner’s 13-year-old cousin, who were both loading bags into the
back of the SUV when the collision occurred. The trial court accepted Houston’s no
contest pleas and found him guilty of the aforementioned charges.
{¶ 3} On March 31, 2021, the trial court sentenced Houston to a mandatory,
indefinite term of five to seven-and-one-half years in prison for each count of aggravated
vehicular assault and ordered those terms to be served concurrently with one another.
The trial court then merged the two OVI offenses, and the State elected to have Houston
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sentenced on the count in violation of R.C. 4511.19(A)(1)(b). Thereafter, the trial court
sentenced Houston to serve 180 days in prison for the OVI offense and ordered that
sentence to run concurrently with the sentences imposed for the aggravated vehicular
assault offenses. The trial court also ordered Houston to pay court costs, a mandatory
fine of $375, and $2,897.10 in restitution to the victims. The trial court further ordered
Houston’s driver’s license to be suspended for a total of ten years.
{¶ 4} Houston now appeals, challenging the trial court’s sentence and raising a
single assignment of error for review.
Assignment of Error
{¶ 5} Under his sole assignment of error, Houston contends that the trial court’s
decision to sentence him to an indefinite term of five to seven-and-one-half years in prison
for aggravated vehicular assault was contrary to law because the trial court failed to
adequately consider the seriousness and recidivism factors set forth in R.C. 2929.12.
Specifically, Houston claims that the trial court failed to adequately consider the factors
under sections R.C. 2929.12(E)(3), (E)(4), and (E)(5), which are: (1) whether Houston led
a law abiding life for a significant number of years prior to the offenses; (2) whether the
offenses were committed under circumstances not likely to recur; and (3) whether
Houston showed genuine remorse for the offenses.
{¶ 6} When reviewing felony sentences, appellate courts must apply the standard
of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
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only if it clearly and convincingly finds either: (1) the record does not support the
sentencing court’s findings under certain statutes; or (2) the sentence is otherwise
contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).
{¶ 7} “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an
issue or factor which a statute requires a court to consider.” (Citation omitted.) State v.
Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. For example, “[a]
sentence is contrary to law when it does not fall within the statutory range for the offense
or if the trial court fails 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.” (Citation
omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).
Nevertheless, “[t]he 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. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). Therefore, “when
making a felony sentencing decision, a trial court must consider the R.C. 2929.11
purposes of felony sentencing and the R.C. 2929.12 felony sentencing factors, but there
is no requirement for the trial court to make any on-the-record findings regarding R.C.
2929.11 and R.C. 2929.12.” State v. Benedict, 2d Dist. Greene No. 2020-CA-25, 2021-
Ohio-966, ¶ 8.
{¶ 8} Upon review, we find that Houston’s claim that his sentence was contrary to
law because the trial court failed to adequately consider the factors in R.C. 2929.12 lacks
merit. The trial court was not required to make any findings under R.C. 2929.12, nor is
there anything in the record suggesting that the trial court failed to consider the applicable
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factors under that statute. Indeed, the trial court expressly stated at the sentencing
hearing that it had considered “the purposes and principles of sentencing, the seriousness
and recidivism factors, and all of the factors that apply to sentencing[.]” Sentencing
Trans. (Mar. 31, 2021), p. 42. Therefore, the record establishes that the trial court
complied with its obligation to consider the seriousness and recidivism factors set forth
under R.C. 2929.12.
{¶ 9} We note that Houston’s argument that the trial court did not adequately
consider the factors in R.C. 2929.12 is essentially a claim that the record does not support
his sentence under R.C. 2929.12. The Supreme Court of Ohio, however, recently
explained that R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court to
modify or vacate a sentence based on its view that the sentence is not supported by the
record under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 39. Accordingly, “[w]hen reviewing felony sentences that
are imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, we
do not analyze whether those sentences are unsupported by the record.” State v.
McDaniel, 2d Dist. Darke No. 2020-CA-3, 2021-Ohio-1519, ¶ 11, citing State v. Dorsey,
2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18; Jones at ¶ 26-29. Instead, “[w]e
simply must determine whether those sentences are contrary to law.” Dorsey at ¶ 18.
{¶ 10} As already discussed, the record indicates that the trial court complied with
its obligations under R.C. 2929.12 when sentencing Houston. Therefore, Houston’s
indefinite five-to-seven-and-one-half-year prison sentence for aggravated vehicular
assault was not contrary to law, and Houston’s claim otherwise lacks merit.
{¶ 11} Houston’s sole assignment of error is overruled.
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Conclusion
{¶ 12} The judgment of the trial court is affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
J. Joshua Rizzo
Michael W. Hallock, Jr.
Hon. Mary Katherine Huffman