State v. Dodd

[Cite as State v. Dodd, 2022-Ohio-4455.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, : Case No. 22CA5
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
ISAAC A. DODD, :
Defendant-Appellant. : RELEASED 12/08/2022
______________________________________________________________________
APPEARANCES:
L. Scott Petroff, Athens, Ohio, for appellant.
Nicole Tipton Coil, Washington County Prosecuting Attorney, Marietta, Ohio, for
appellee.
______________________________________________________________________
Hess, J.
{¶1} Isaac A. Dodd appeals his conviction for felonious assault. He contends that
his sentence was contrary to law because the trial court considered two factors at
sentencing that lacked any basis in the record: (1) that he acted with racial animus against
the victim and (2) that he had a prior criminal record as an adult. He argues that there was
no evidence in the record that he acted with racial animus and that the offenses he
committed as an adult were traffic offenses, not criminal offenses. He also contends that
the trial court improperly imposed court costs on him even though he was indigent.
{¶2} We reject his arguments and overrule his assignments of error. Dodd does
not ask us to review whether the record supports the trial court's findings under R.C.
2953.08(G)(2)(a), but instead asks us to review the trial court's findings as they relate to
racial animus and recidivism – findings under R.C. 2929.12(B)(8) and R.C. 2929.12(D)(2).
Washington App. No. 22CA5 2
We have no authority to review the record to determine whether it supports the trial court's
findings under R.C. 2929.12, or to modify or vacate the sentence on this ground. As to
court costs, Dodd did not move for a waiver or cancellation of the costs at the trial level
and therefore has forfeited all but plain error as to these issues. He does not argue plain
error on appeal, and we decline to construct a plain error argument on his behalf. We
affirm the trial court’s judgment.
I. PROCEDURAL HISTORY
{¶3} In September 2021, Dodd was indicted with one count of felonious assault
in violation of R.C. 2903.11(A)(1) & (D)(1)(a), a second-degree felony, and one count of
aggravated burglary in violation of R.C. 2911.11(A)(1) and (B), a first-degree felony.
Pursuant to a plea agreement, Dodd entered a written guilty plea to the felonious assault
count and the state dismissed the aggravated burglary count. The trial court accepted his
guilty plea and ordered a pre-sentence investigation (PSI) prior to the sentencing hearing
held in March 2022.
{¶4} At the sentencing hearing, the prosecutor described the following events
which led to Dodd’s conviction. Dodd texted the victim. The victim texted back and told
him not to come over to her house or she would notify law enforcement. Dodd disregarded
these instructions, went to the victim’s home, waited outside for five to ten minutes, and
then forcibly kicked in the door to the residence. The victim pushed Dodd away, but he
grabbed the victim by the neck, pushed her against a wall, and strangled her for
approximately 15 seconds, during which time the victim could neither breathe, nor talk.
The prosecutor stated:
While he was strangling her, Mr. Dodd referred to [the victim] as the n-word.
Washington App. No. 22CA5 3
Unfortunately, I think it’s the use of the n-word, which is the explanation for
this crime. Many would consider this to be a hate crime. This does not mean
that Isaac Dodd hated [the victim]; in fact, I don’t see how that could even
be possible, as they really didn’t know each other.
I asked [the victim] why she thought Mr. Dodd had committed this crime,
and she had absolutely no idea. * * * she said that he had used the same
racial slur against her when they attended high school together, but they did
not know each other or interact with each other.
Rather, what hate crimes means, is that the crime is committed because of
a bias against a group of people because of a specific characteristic. In this
case, it was because of [the victim’s] skin color.
* * *
I previously gave Mr. Dodd credit for confessing and taking responsibility
for his crime, as he wrote a letter of apology rather quickly after the event.
But when I read his PSI, I saw that he has no real remorse for this crime. *
* * [w]hen asked how he felt about committing the offense, he said he was
happy with it, if it kept her from talking s-h-i-t about her (sic) son. [sic in
original]
In other words, it’s okay with Mr. Dodd if he breaks into someone’s home,
calls them a racial slur, and attempts to strangle them if it gets them to stop
saying things he does not like.
The state asked that Dodd be sentenced to six years in prison. The state informed the
trial court that no restitution had been requested.
{¶5} Dodd’s attorney spoke and noted that Dodd’s juvenile history did not include
offenses of violence and his adult criminal history was all traffic charges. He also argued
that the offense was not a hate crime solely because a racial slur was used. According to
Dodd’s attorney, there was an ongoing conflict between Dodd and the victim concerning
Dodd’s infant child. The victim said things about Dodd’s child that upset Dodd and resulted
in him acting under strong provocation and addressing those comments “in the wrong
way.” Dodd’s actions were “done as a way to deter the victim from saying things about his
Washington App. No. 22CA5 4
child again.” As a result, it “occurred under circumstances unlikely to recur.” Dodd’s
attorney asked the trial court to “impose a three-year prison term, assess costs, and Mr.
Dodd will be subject to mandatory post-release control, if he served all of his prison time.”
Later Dodd’s attorney added a request that the sentence “be three years, up to a maximum
of four-and-a-half years * * *.” As to Dodd’s ability to pay a financial sanction, Dodd’s
attorney explained that Dodd is on a fixed income, receives disability income and food
stamps, and is unemployed.
{¶6} The trial court found that no restitution was requested, and none would be
ordered. The trial court also found that Dodd did not have future ability to pay any financial
sanction and ordered no financial sanction. However, the trial court ordered Dodd to pay
court costs and informed him that if he failed to do so, it could order Dodd to perform
community service until the judgment is paid. The trial court ordered Dodd to serve a five-
year prison term, with a maximum possible term of seven-and-a-half years and notified
him that he would be subject to a period of mandatory post-release control for up to three
years but no less than 18 months.
{¶7} The trial court stated that it had considered the principles and purposes of
sentencing pursuant to R.C. 2929.11 through R.C. 2929.29, it had weighed the
seriousness and recidivism factors and the overriding purposes of felony sentencing to
protect the public from future crime by the offender, to punish the offender using the
minimum sanctions without imposing a burden on government resources, the need for
incapacitating and deterring the offender, and the need for rehabilitating the offender and
making restitution to the victim.
II. ASSIGNMENTS OF ERROR
Washington App. No. 22CA5 5
{¶8} Dodd assigns the following errors for our review:
1. The trial court improperly considered factors at sentencing without
any basis in the record for considering those factors.
2. The trial court improperly imposed court costs on Mr. Dodd despite
him being indigent.
III. LEGAL ANALYSIS
A. Felony Sentencing Review
1. Standard of Review
{¶9} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2):
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.
{¶10} We may vacate or modify a felony sentence if we clearly and convincingly
find that the record does not support the trial court's findings. State v. Layne, 4th Dist.
Adams No. 20CA1116, 2021-Ohio-255, ¶ 6. “ ‘This is an extremely deferential standard of
review.’ ” Id. at ¶ 8, quoting State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-
3943, ¶ 8. Clear and convincing evidence is proof that is more than a “mere preponderance
of the evidence” but not of such certainty as “beyond a reasonable doubt,” and produces
in the mind a “firm belief or conviction” as to the facts sought to be established. State v.
Washington App. No. 22CA5 6
Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 42; see also State v. Hughes,
4th Dist. Adams No. 21CA1127, 2021-Ohio-3127, ¶ 37-38.
2. Legal Analysis
{¶11} Dodd contends that his sentence is contrary to law because the record does
not support the trial court’s finding that his offense was motivated by racial animus.
Specifically, Dodd’s argues that R.C. 2929.12 establishes a list of factors to be considered
in felony sentencing and includes whether the offender was motivated by prejudice based
on race. See R.C. 2929.12(B)(8) (“In committing the offense, the offender was motivated
by prejudice based on race, ethnic background, gender, sexual orientation, or religion”).
Dodd argues that while there was evidence in the PSI that he used a racial slur, this was
not substantial evidence of racial animus under R.C. 2929.12(B)(8).1
{¶12} Dodd also argues that there were only traffic offenses in his adult criminal
history and therefore the trial court improperly “applied the statutory guidelines,” though
he does not identify to which statutory guidelines he is referring. We believe he refers to
R.C. 2929.12(D)(2), which allows the trial court to consider the offender’s juvenile
delinquency history and adult criminal history when it considers whether an offender is
likely to commit future crimes.
{¶13} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
the Court held that R.C. 2953.08(G)(2) does not permit an appellate court to review
whether the record supports a sentence as a whole under R.C. 2929.11 and 2929.12. Id.
at ¶ 30. The Court stated:
1Dodd also contends that there is nothing in the record to indicate either his or the victim’s race. However,
several documents in the record state the victim is “bi-racial” and Dodd is “white.” For example, the PSI
states that Dodd is white and several protection orders indicate the victim is biracial.
Washington App. No. 22CA5 7
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. In particular, R.C. 2953.08(G)(2) does not permit an
appellate court to conduct a freestanding inquiry like the independent
sentence evaluation this court must conduct under R.C. 2929.05(A) when
reviewing a death penalty-sentence. See State v. Hundley, 162 Ohio St.3d
509, 2020-Ohio-3775, 166 N.E.3d 1066, ¶ 128 (recognizing that R.C.
2929.05(A) requires de novo review of findings and other issues within its
scope).
Id. at ¶ 42; State v. Arbogast, 4th Dist. Adams No. 20CA1119, 2021-Ohio-484, ¶ 7.
{¶14} Dodd essentially asks this court to review the record and determine whether
it supports the trial court’s finding of racial animus under R.C. 2929.12(B)(8) and its
recidivism finding under R.C. 2929.12(D)(2). Based on Jones, we conclude that R.C.
2953.08(G)(2) does not permit us to conduct this type of review. See State v. Hughes, 4th
Dist. Adams No. 21CA1127, 2021-Ohio-3127, ¶ 42.
{¶15} We overrule Dodd’s first assignment of error.
B. Imposition of Court Costs
{¶16} In his second assignment of error, Dodd challenges the trial court's
imposition of court costs. Dodd acknowledges that the trial court had a statutory duty to
assess the costs of prosecution against him but argues the court abused its discretion by
not waiving the costs under R.C. 2947.23(C) or cancelling them under R.C. 2303.23. Dodd
asserts that because the trial court found him to be indigent and unable to pay financial
sanctions, it should have waived court costs and abused its discretion when it did not.
{¶17} R.C. 2947.23(A)(1)(a) states: “In all criminal cases, * * * the judge * * * shall
include in the sentence the costs of prosecution * * * and render a judgment against the
defendant for such costs.” However, R.C. 2947.23(C) states that “[t]he court retains
jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * * at
Washington App. No. 22CA5 8
the time of sentencing or at any time thereafter.” R.C. 2947.23(C) “provides no explicit
criteria that a court should use in deciding whether to waive, suspend, or modify costs.”
State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 8. “[A] trial court
is not required to consider the defendant's ability to pay in assessing a motion to waive,
suspend, or modify court costs under R.C. 2947.23(C), though it is permitted to do so.” Id.
at ¶ 16. R.C. 2303.23 states: “If at any time the court finds that an amount owing to the
court is due and uncollectible, in whole or in part, the court may direct the clerk of the court
to cancel all or part of the claim. The clerk shall then effect the cancellation.” This statute
is “merely permissive” and does “not require consideration of ability to pay.” Taylor at ¶ 15.
{¶18} Generally, an appellate court reviews a trial court's decision whether to
waive costs of prosecution under R.C. 2947.23(C) or to cancel an amount owing to the
court under R.C. 2303.23 for an abuse of discretion. See State v. Brock, 4th Dist. Adams
No. 20CA1123, 2021-Ohio-1279, ¶ 16-19; State v. Harris, 2d Dist. Greene No. 2019-CA-
57, 2020-Ohio-3056, ¶ 12-13, 20. However, Dodd did not move the court for waiver or
cancellation of the costs of his prosecution. In fact, at the sentencing hearing, his attorney
appeared to ask that court costs be imposed upon Dodd when it asked the trial court to
“assess costs.” Crim.R. 52(B) states: “Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” To prevail
under the plain error standard, “the defendant must establish that an error occurred, it was
obvious, and it affected his or her substantial rights.” State v. Fannon, 2018-Ohio-5242,
117 N.E.3d 10, ¶ 21 (4th Dist.), citing Crim.R. 52(B). “Notice of plain error under Crim.R.
52(B) is to be taken with the utmost caution, under exceptional circumstances and only to
Washington App. No. 22CA5 9
prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978), paragraph three of the syllabus.
{¶19} Dodd has not argued plain error on appeal, and we decline to construct a
plain error argument on his behalf. See State v. Brock, 4th Dist. Adams No. 20CA1123,
2021-Ohio-1279, ¶ 16-19 (declining to construct a plain error review of the trial court’s
imposition of court costs where defendant did not move for costs to be waived or
cancelled). We do, however, observe that the only reasons Dodd has given as to why the
trial court should have waived the costs under R.C. 2947.23(C) relate to his inability to pay
them, and the statute does not require consideration of ability to pay. See Taylor at ¶ 15-
16.
{¶20} We overrule Dodd’s second assignment of error.
IV. CONCLUSION
{¶21} We overrule Dodd’s assignments of error and affirm his conviction.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington
County Court of Common Pleas to carry this judgment into execution.
Washington App. No. 22CA5 10
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.