State v. Sowell

[Cite as State v. Sowell, 2021-Ohio-889.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-02-020
: OPINION
- vs - 3/22/2021
:
BRIAN DARNELL SOWELL, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2019-07-1068
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Engel & Martin, LLC, Joshua A. Engel, 4660 Duke Drive, Suite 101, Mason, Ohio 45040
PIPER, P.J.
{¶1} Appellant, Brian Sowell, appeals his sentence in the Butler County Court of
Common Pleas after pleading guilty to trafficking in a fentanyl-related compound.
{¶2} While on community control for an aggravated assault conviction, Sowell was
indicted on seven drug and weapons charges, some of which contained firearm
specifications. Some of the charges also alleged that Sowell's drug activity occurred within
Butler CA2020-02-020
the presence of a juvenile. Sowell ultimately pled guilty to one amended count of trafficking
in a fentanyl-related compound, and the other counts and specifications were dismissed.
{¶3} Sowell waived a presentence investigation, and the trial court sentenced him
to eight to 12 years in prison. Sowell's community control was also revoked, and he was
sentenced to 17 months. The trial court ordered the 17-month sentence to be served
concurrently with the sentence imposed in the drug trafficking case. Sowell now appeals
his sentence, raising the following assignment of error:
{¶4} THE TRIAL COURT ERRED IN IMPOSING A SENTENCE BASED ON
INFORMATION OUTSIDE THE RECORD WITHOUT PROVIDING APPELLANT AN
OPPORTUNITY TO RESPOND.
{¶5} Sowell argues in his single assignment of error that the trial court erred in
imposing his sentence.
{¶6} We review the trial court's felony sentencing decision pursuant to the
standard set forth by R.C. 2953.08(G)(2). State v. Starr, 12th Dist. Clermont Nos. CA2018-
09-065 and CA2018-09-066, 2019-Ohio-2081, ¶ 8. Pursuant to that statute, this court may
modify or vacate a sentence only if, by clear and convincing evidence, "the record does not
support the trial court's findings under relevant statutes or that the sentence is otherwise
contrary to law." State v. Baker, 12th Dist. Clermont No. CA2018-06-042, 2019-Ohio-2280,
¶ 17.
{¶7} A sentence is not clearly and convincingly contrary to law where the trial court
"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly imposes postrelease control, and sentences the defendant within the
permissible statutory range." State v. Williams, 12th Dist. Butler No. CA2020-01-009, 2020-
Ohio-5228, ¶ 12.
{¶8} The record is undisputed that the trial court properly considered the statutory
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sentencing requirements of R.C. 2929.11 and 2929.12, imposed postrelease control, and
sentenced Sowell within the statutory range for a second-degree felony. Thus, Sowell's
sentence is not contrary to law.
{¶9} Nevertheless, Sowell argues that the trial court erred during the sentencing
hearing, which renders his sentence contrary to law. First, Sowell argues that the trial court
improperly considered his past criminal record and information about the charges that were
dismissed as a part of the plea negotiations. However, the trial court is statutorily required
to consider relevant information when sentencing a defendant. R.C. 2929.19(B)(1).
{¶10} This information included Sowell's criminal history, with which the trial court
was familiar, as it had presided over Sowell's aggravated assault case for which he was
sentenced to community control. During the current sentencing hearing, Sowell spoke of
his past mistakes and criminal history during allocution, and he waived a presentence
investigation. At no time did Sowell object to any discussion of his criminal history, a history
which was discussed by all parties and well known to the trial court.
{¶11} The court also considered that police located fentanyl and a weapon in the
home while the only person present was Sowell's juvenile daughter. While the weapons
charges and specifications were dismissed and the juvenile-related charge was amended,
the facts and circumstances of those charges were properly considered by the trial court
before sentencing. The facts were relevant to Sowell's plea and to his sentencing, and at
no time did Sowell object to the state's recitation of facts at either the plea hearing or at
sentencing. The facts regarding Sowell's crimes went undisputed during the hearing, and
were properly considered by the trial court.
{¶12} Sowell also argues that he was not given an opportunity to respond to the
state's allegations. However, the record indicates otherwise. Sowell was given allocution
rights, during which he addressed his own history and asked the trial court for mercy based
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upon recent changes in his life and the need to care for his children. At no time did Sowell
allege that the trial court was in danger of considering inaccurate information or that Sowell
was being denied the ability to respond to information that was clearly a part of the record
and had been discussed throughout the hearing.
{¶13} After reviewing the record, we find that the trial court's sentence was not
contrary to law and that the trial court did not err in imposing the sentence. Sowell's single
assignment of error is overruled.
{¶14} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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