State v. Avonts

[Cite as State v. Avonts, 2022-Ohio-1265.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Sylvania Court of Appeals No. L-21-1115
Appellee Trial Court No. 2000610
v.
Bobbie J. Avonts DECISION AND JUDGMENT
Appellant Decided: April 15, 2022
*****
Daniel C. Arnold, City of Sylvania Prosecuting Attorney, and
Autumn D. Adams, Special Prosecuting Attorney, for appellee.
S. Scott Schwab and Michael H. Stahl, for appellant.
*****
OSOWIK, J.
{¶ 1} Defendant-appellant, Bobbie J. Avonts, appeals the May 10, 2021 judgment
of the Sylvania Municipal Court, convicting her of operating a motor vehicle under the
influence of alcohol and sentencing her to 180 days in jail. For the following reasons, we
affirm the trial court judgment.
I. Background
{¶ 2} Bobbie Avonts entered a plea of no contest to operating a motor vehicle
under the influence of alcohol or drugs, a violation of R.C. 4511.19(A)(1)(a), a first-
degree misdemeanor. The court ordered a presentence investigation report. On May 10,
2021, after reviewing the PSI, the trial court sentenced Avonts to 180 days in jail, a 60-
month license suspension, restricted plates, a fine of $850, and court costs. Avonts
appealed. She assigns the following error for our review:
The trial judge became a “judge in his own case” by actively
engaging in the prosecution of the case and then sentencing Ms. Avonts
according to the Court’s express dissatisfaction with the prosecutor’s
exercise in discretion thereby exhibiting bias and committing a structural
error.
II. Law and Analysis
{¶ 3} The trial court sentenced Avonts to the maximum jail term allowed for a
first-degree misdemeanor—180 days. R.C. 2929.24(A)(1). In her sole assignment of
error, Avonts claims that the trial judge’s comments during sentencing demonstrate that
he actively engaged in the prosecution of her case, thereby exhibiting bias against her.
Specifically, after realizing that this was Avonts’s fourth offense in ten years, the court
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questioned the city prosecutor about its failure to recognize Avonts’s prior offenses and
to charge her with a felony or unclassified misdemeanor. The judge told Avonts that she
had caught a huge break by this oversight and sentenced her to the maximum possible
sentence. He also told Avonts:
I’ll do what I can to keep you off the street because you, ma’am, are
a menace to the community. And if you keep this behavior up, someone’s
going to get hurt. It’s inevitable. * * * I think if you can refrain from
drinking that will do great for your own body and it will be great for
everybody else that’s, that’s around you.
{¶ 4} Avonts acknowledges that she raised no objection to the trial judge’s
conduct during the sentencing hearing, insisting that to do so would have been “perilous.”
She instead filed a motion for reconsideration of her sentence, seeking to persuade the
trial judge that her sentence was disproportionate as compared to offenders charged with
felony OVIs. Appropriately, the trial court did not rule on this motion. See State v.
Jezioro, 12th Dist. Warren No. CA2016-10-088, 2017-Ohio-2587, ¶ 12 (“Essentially,
appellant’s request was a motion for reconsideration, which the trial court did not have
authority to consider.”).
{¶ 5} Avonts claims that the trial judge acted as “some sort of supervisor to the
City of Sylvania prosecutor’s office” and held her to answer for the prosecution’s
charging actions. She questions why she should be punished more harshly “because
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either the City Prosecutor elected to not pursue a felony, or the county prosecutor did not
wish to indict on the case.” She insists that the judge acted as “a judge in his own case,”
violating her right to due process.
{¶ 6} “[B]iased comments at sentencing can be reviewed by an appellate court for
due process violations.” State v. Frazier, 2017-Ohio-8307, 98 N.E.3d 1291, ¶ 16 (8th
Dist.). The Ohio Supreme Court has described judicial bias as “‘a hostile feeling or spirit
of ill will or undue friendship or favoritism toward one of the litigants or his attorney,
with the formation of a fixed anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be governed by the law and
the facts.’” State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34,
quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956),
paragraph four of the syllabus. It has explained, however, that opinions formed by the
trial judge “based on facts introduced or events occurring during the course of the current
or prior proceedings,” do not rise to the level of judicial bias “‘unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.’” State v.
Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 49, quoting Liteky v.
United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
{¶ 7} It is presumed that a judge is unbiased and unprejudiced in the matters over
which he or she presides. Frazier at ¶ 18. In order to overcome this presumption, “the
appearance of bias or prejudice must be compelling.” Id.
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{¶ 8} Here, the transcript of proceedings and the PSI reveal that the Chief
Probation Officer discovered Avonts’s prior OVI convictions, reported them in the PSI,
and brought them to the attention of the court and the city prosecutor. The comments
from the city prosecutor indicate that there was no decision or exercise of discretion in
charging Avonts as a first-time offender. Rather, he explained, the failure to charge
Avonts with a felony OVI was an oversight that was part of a larger “problem” that the
prosecutor was aware of and “not happy about” and was being rectified with “new
policies and procedures” to avoid similar situations “moving forward.” The trial judge
did not actively engage in the prosecution of the case and did not exhibit bias or
prejudice. He merely raised an issue that had been brought to his attention in connection
with the preparation of the PSI.
{¶ 9} Having concluded that the trial judge did not exhibit bias or prejudice by
discussing the probation officer’s findings with the prosecutor, we turn to Avonts’s
alternative claim that the trial court abused its discretion or committed plain error in
sentencing her to 180 days in jail.
{¶ 10} We review misdemeanor sentences under an abuse-of-discretion
standard. Div. of Wildlife v. Coll, 2017-Ohio-7270, 96 N.E.3d 947, ¶ 23 (6th Dist.). An
abuse of discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). “A trial court will be found to have abused its discretion when its decision is
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contrary to law, unreasonable, not supported by the evidence, or grossly unsound.” State
v. Nisley, 3d Dist. Hancock No. 5-13-23, 2014-Ohio-981, ¶ 15, State v. Boles, 187 Ohio
App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). Where a sentence falls within the
statutory range for a first-degree misdemeanor, “we will presume the trial judge followed
the statutes, unless there is evidence to the contrary.” State v. Reese, 6th Dist. Lucas No.
L-17-1184, 2018-Ohio-1654, ¶ 22.
{¶ 11} Under R.C. 2929.21(A), in sentencing an offender for a misdemeanor
offense, the sentencing court “shall be guided by the overriding purposes of misdemeanor
sentencing.” Those overriding purposes are to protect the public from future crime and
others and to punish the offender. Id. “To achieve those purposes, the sentencing court
shall consider the impact of the offense upon the victim and the need for changing the
offender’s behavior, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or the victim and the public.” Id. The sentence selected by the
trial court “shall be reasonably calculated to achieve the two overriding purposes of
misdemeanor sentencing,” “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 offenses committed by similar offenders.” R.C. 2929.21(B).
{¶ 12} Under R.C. 2929.22(A), unless a mandatory jail term is required to be
imposed under R.C. 1547.99(G), 4510.14(B), 4511.19(G), or another provision of the
Revised Code, “a court that imposes a sentence * * * for a misdemeanor * * * has
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discretion to determine the most effective way to achieve the purposes and principles of
sentencing set forth in section 2929.21 of the Revised Code.” The court may impose
“any sanction or combination of sanctions under sections 2929.24 to 2929.28 of the
Revised Code.” Id.{¶ 13} Under R.C, 2929.22(B)(1), “[i]n determining the appropriate sentence for a
misdemeanor, the court shall consider all of the following factors:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of persistent
criminal activity and that the offender’s character and condition reveal a
substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender’s history, character, and
condition reveal a substantial risk that the offender will be a danger to
others and that the offender’s conduct has been characterized by a pattern
of repetitive, compulsive, or aggressive behavior with heedless indifference
to the consequences;
(d) Whether the victim’s youth, age, disability, or other factor made
the victim particularly vulnerable to the offense or made the impact of the
offense more serious;
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(e) Whether the offender is likely to commit future crimes in
general, in addition to the circumstances described in divisions (B)(1)(b)
and (c) of this section;
(f) Whether the offender has an emotional, mental, or physical
condition that is traceable to the offender’s service in the armed forces of
the United States and that was a contributing factor in the offender’s
commission of the offense or offenses;
(g) The offender’s military service record.
The court may also consider any other factors that are relevant to achieving the purposes
and principles of sentencing set forth in R.C. 2929.21. R.C. 2929.22(B)(2).
{¶ 14} Under R.C. 2929.22(C), before imposing a jail term as a sentence, the court
must consider the appropriateness of imposing a community control sanction. It may
impose the longest jail term authorized under R.C. 2929.24 “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.” In fashioning a
sentence, the court must consider “any relevant oral or written statement made by the
victim, the defendant, the defense attorney, or the prosecuting authority * * *.” R.C.
2929.22(D)(1). It need not recite or explain the sentencing factors it considered in
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imposing its sentence. City of Toledo v. Coutcher, 6th Dist. Lucas No. L-20-1145, 2021-
Ohio-2620, ¶ 13.
{¶ 15} In Reese, we found no abuse of discretion where the trial judge imposed
180-day consecutive sentences on charges of OVI and driving under OVI suspension.
There, the defendant had a history of alcohol-related offenses and the trial judge deemed
it appropriate to impose consecutive 180-day sentences in order to “get [appellant's]
attention.” Id. at ¶ 23. We reach the same conclusion here. The trial judge decided that
a 180-day sentence was necessary given Avonts’s pattern of committing OVI offenses
and his concern for the safety of the community. Its decision was not contrary to law,
unreasonable, or grossly unsound, and it was supported by the evidence. We find no
abuse of discretion. See State v. Hittle, 3d Dist. Logan No. 8-19-37, 2019-Ohio-5172, ¶
13 (“Given Hittle’s extensive history of OVIs and other traffic offenses and his failure to
conform his conduct to the law despite the sanctions imposed for those offenses, we
cannot conclude that the trial court’s decision to sentence Hittle to a 180-day jail term
and impose a seven-year driver’s license suspension was unreasonable, arbitrary, or
unconscionable.”).
III. Conclusion
{¶ 16} We find that the trial court did not exhibit bias in sentencing Avonts, and
its imposition of a 180-day sentence was not an abuse of discretion. We affirm the
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May 10, 2021 judgment of the Sylvania Municipal Court. Avonts is ordered to pay the
costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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