[Cite as State v. Brown,
2014-Ohio-2878.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-A-0065
- vs - :
ANGEL M. BROWN, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012
CR 029.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Virginia K. Miller, Smith & Miller, 36 West Jefferson Street, #1, Jefferson, OH 44047
(For Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Angel M. Brown, appeals from the October 9, 2013 judgment of
the Ashtabula County Court of Common Pleas, sentencing her for conspiracy to commit
aggravated murder following a jury trial. For the reasons that follow, we affirm.
{¶2} On January 19, 2012, the Ashtabula County Grand Jury indicted appellant
on two counts of conspiracy to commit aggravated murder, felonies of the first degree.
Count one was in violation of R.C. 2923.01(A)(1). Count two was in violation of R.C.
2923.01(A)(2). Appellant pleaded not guilty to both charges at her arraignment. Motion
practice ensued.
{¶3} A jury trial commenced on August 6, 2013. Appellee, the state of Ohio,
presented nine witnesses. The state’s witnesses collectively established that Lisa Luke
(“Luke”) was married to Daniel Brown (“Brown”). Thereafter, the two divorced and
appellant married Brown, who later died. Apparently due to financial motivations and
“bad-blood” between appellant and Luke, appellant subsequently contacted James
Holley (“Holley”) to discuss and arrange the murder for hire of Luke. Appellant paid
Holley $4,000 to carry out the plan. After believing Luke had been murdered, appellant
gave instructions regarding her preference for disposing of Luke’s body.
{¶4} The state’s testimony at trial revealed that appellant and Holley initially
met each other at a strip club where she was a dancer and he was a customer. Holley
later trained appellant to be a professional boxer until he went away to prison for arson.
The two regained contact again after his release.
{¶5} Holley testified appellant contacted him via telephone on January 9, 2012
because she wanted someone “whacked” and was willing to pay money. They later met
in person at the TA truck stop. Holley indicated appellant told him she wanted Luke
killed because she believed Luke was trying to get her inheritance from Brown.
Appellant told Holley where Luke worked and that he should look her up on Facebook.
Although Holley initially told appellant he would charge $5,000, the two negotiated a
deal and settled on $4,000. They agreed to meet again the following day.
{¶6} Holley testified that on January 10, 2012, appellant went to his place of
employment and gave him $4,000 (two stacks of $2,000 which were wrapped in bands
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and contained within a Huntington Bank envelope). According to Holley, appellant
closed her bank account and opened another so she did not leave a money trail. Holley
merely wanted to take appellant’s money and disappear. He never intended to kill
Luke.
{¶7} After appellant left, Holley showed the money to his co-worker, Charles
Shaw (“Shaw”). Shaw testified he initially observed Holley step outside after he
received a phone call. When Holley returned, he showed Shaw an envelope containing
money. After working that day, Holley went to pay some bills. Later that night, Holley
went to an Erie casino to gamble.
{¶8} The next day, appellant texted Holley wondering if anything had happened
yet. Holley texted appellant back that it would happen that night. He also told her to be
careful using the phone. Appellant later called Holley wondering if the job was getting
done. Holley responded that it would.
{¶9} After believing that appellant seriously intended to have Luke killed, Holley
went to the Ashtabula County Sheriff’s Department (“ACSD”) and spoke with his long-
time friend, Sheriff William Johnson (“Sheriff Johnson”). Holley told Sheriff Johnson that
he took money from appellant to kill Luke and that he had spent all of it. Sheriff
Johnson turned over the information to his detectives and an investigation began.
{¶10} Holley later received another text message from appellant, while at the
ACSD, telling him not to go through with their plan and to keep $1,000 for his trouble.
Holley did not respond. He subsequently received another text from appellant asking
him if he got her latest text. He responded from the ACSD that he would call her later.
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{¶11} Detective George Cleveland (“Detective Cleveland”) with the ACSD
testified he was involved in the investigation and monitored phone calls made by Holley
to appellant. During the first recorded call, appellant feared that Luke’s murder would
be traced back to her. Holley told appellant he would not let that happen. Holley also
told appellant he had spent all of her money and she would not be getting anything
back. Appellant told Holley to just finish the job then.
{¶12} As a result of that first call, Detective Cleveland believed that appellant
was serious about having Luke killed. Holley made a second recorded call to appellant
from the ACSD. Holley requested more money from her and the two set up a meeting.
While videotaped, Holley met with appellant on the front porch of her home. Appellant
agreed to give Holley more money to kill Luke.
{¶13} After that meeting, Holley made a third recorded call to appellant from the
ACSD falsely telling her that Luke was dead. Holley asked appellant what he should do
with the body. Appellant told him to make it “disappear.”
{¶14} Detective Cleveland asked Holley for the money appellant paid him.
Holley responded that he had spent it all on bills and at the casino. However, Holley
gave Detective Cleveland the Huntington Bank envelope the money came in as well as
two $2,000 money wrappers.
{¶15} Detectives Cleveland and Sean Ward (“Detective Ward”) with the ACSD
participated in appellant’s arrest. While transporting her to the station, Detective Ward
testified that appellant “kept repeating over and over, she goes, you don’t understand
why I did it. She was going to take everything from me. She was going to take
everything from me and my boy. She repeated over and over several times.” Detective
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Cleveland also testified that appellant made the foregoing statements while “crying
uncontrollably.”
{¶16} Detective Cleveland interviewed appellant at the ACSD. During the
interview, appellant denied giving Holley any money. Appellant stated she was only
joking with Holley when she said she wanted Luke dead.
{¶17} Vanderbilt Robison (“Robison”), a former lieutenant with the ACSD,
testified he was also involved in the investigation and interviewed appellant. During the
interview, appellant told Robison that both she and Holley hated Luke. Appellant lied
about her finances and claimed she did not believe that Holley would kill Luke.
Appellant denied ever giving Holley any money. Appellant also stated she told Holley
not to kill Luke.
{¶18} A search of appellant’s person during booking revealed the following
items: a receipt from Bessemer System Federal Credit Union in Greenville,
Pennsylvania (“Bessemer”) for a cash withdrawal of $20,000 signed by appellant and
time-stamped on January 10, 2012; bank receipts for checks that were cashed by her at
Bessemer on January 10, 2012; a post-it note with the fax number for Bessemer;
Holley’s business card; a $2,000 money wrapper; a post-it note with the figure
$25,699.73 written on it; and a business card from an official at Huntington Bank.
{¶19} Debit card records showed that appellant made a purchase at the TA truck
stop on January 9, 2012. Video surveillance footage and bank records from Bessemer
showed appellant and her $20,000 cash withdrawal. Also, bank records from
Huntington Bank showed that appellant opened a savings account, checking account,
and safe deposit box on January 10, 2012.
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{¶20} Joy Peterson (“Peterson”), an office manager at Bessemer, testified that
her bank wraps 20 hundred dollar bills together in $2,000 bands. Peterson stated the
money wrappers Holley gave to the ACSD looked like the ones used at Bessemer.
Peterson further said her bank’s records showed appellant made a $20,000 withdrawal
on January 10, 2012.
{¶21} Linda Singleton (“Singleton”), appellant’s cousin, testified that in early
2012, appellant asked her for a $4,000 receipt but did not indicate for what reason.
Singleton said appellant also asked her to give appellant receipts from Christmas
presents that Singleton purchased. Singleton further indicated appellant asked her if
she knew any “hit” men.
{¶22} Finally, Attorney Jeffrey Ford (“Attorney Ford”) testified that Luke
contacted him in either late 2011 or early 2012 to represent her daughter in a probate
matter. Attorney Ford subsequently reviewed the probate file of the estate of Luke’s
deceased ex-husband, Brown. Luke and Brown had three children during their
marriage. However, appellant claims there was a dispute about paternity. Brown’s
estate was opened for the purpose of a wrongful death action. Appellant was listed as
the applicant of that action and two of Luke’s children were missing as beneficiaries.
The probate court application was ultimately corrected.
{¶23} After the state rested, the defense presented two witnesses as well as
appellant. Brian Waldron (“Waldon”), a friend of appellant’s, testified that he watched
appellant’s son on January 9, 2012 at her home. Appellant’s other friend, Albert Bentley
(“Bentley”) was also at appellant’s house when Waldron came over. Waldron and
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Bentley indicated appellant left to get some marijuana. When she returned about 45
minutes later, appellant said she did not get any marijuana.
{¶24} Bentley testified he lived with appellant after her husband died in
November 2011. He indicated that appellant had no money. While driving in the car
with appellant on January 11, 2012, appellant had him send a text message to
“someone” telling that person to keep the “thousand” dollars. However, Bentley said
that he intended to text “$100.”
{¶25} Lastly, according to appellant, she received $30,000 in insurance
proceeds following her husband’s death. Appellant later retained legal counsel to look
into a wrongful death action. Appellant testified she tried to apply for Brown’s Social
Security benefits in December 2011 but was told that Luke, Brown’s ex-wife, had
already been there to claim another child. Appellant was told the matter had to be
settled before she could receive benefits. As a result, appellant became upset because
she did not believe that the child belonged to her deceased husband.
{¶26} Appellant testified Holley contacted her after her husband’s death to offer
his condolences and to rekindle their friendship. The two began speaking regularly.
Appellant claimed Holley was involved in drug dealing and prostitution. She also
claimed Holley asked her for a $6,000 loan. Appellant told him she could give him
$4,000. Although he asked for the money several times, appellant stated she ignored
him and never gave him any money. Appellant further testified she spoke with Holley
on January 9, 2012 and asked him if he could get her some marijuana. Appellant
asserted she met Holley at a truck stop, gave him $150, but did not receive any
marijuana in return.
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{¶27} The next day, appellant said she went to Bessemer, withdrew $20,000,
and took the money to Huntington Bank. She stated she was having car trouble and
wanted to move her money to a closer bank. Appellant later texted Holley and asked
him if he got any marijuana for her. She then went to see him at work. They spoke
about marijuana and Luke’s name was mentioned. They both made negative
comments about her, calling her a “stuck-up bitch.” Appellant claimed that Holley
offered to “rough up” Luke and she told him to “[h]it her once for me.”
{¶28} On January 11, 2012, Holley went to appellant’s house to tell her that
Luke was dead. Appellant claimed, however, that she did not take him seriously. When
she was later arrested, appellant claimed she told police that she did not do anything
wrong. During her interview with police, appellant stated the whole thing was a “joke,”
that she never gave Holley any money, and never made an agreement with him to kill
Luke.
{¶29} Following deliberations, the jury returned guilty verdicts on both counts of
the indictment. On October 9, 2013, the trial court sentenced appellant to a total of nine
years in prison. The court found the offenses to be of similar import and, thus, merged
count two with count one. The court further notified appellant that she would be subject
to five years of post-release control. Appellant filed a timely appeal and presents the
following three assignments of error for our review:
{¶30} “[1.] Defendant-Appellant was deprived of her right to effective assistance
of counsel pursuant to the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Constitution of the State of Ohio.
8
{¶31} “[2.] The Defendant-Appellant’s convictions are against the manifest
weight of the evidence.
{¶32} “[3.] The lower court failed to properly consider the statutory principles and
purposes of sentencing and the seriousness and recidivism factors required by statute.”
{¶33} In her first assignment of error, appellant argues her trial counsel was
ineffective because: (1) he failed to file a motion to suppress; (2) failed to object to the
admission of her recorded statement; (3) failed to follow through with a motion to
disclose deals; and (4) failed to request testing of the money bands and envelope.
{¶34} Regarding an ineffective assistance of counsel claim, this court stated in
State v. Henry, 11th Dist. Lake No. 2007-L-142, 2009-Ohio-1138, ¶50-59:1
{¶35} “Preliminarily, we note that Strickland v. Washington (1984), 466 U.S. 668,
687 … states:
{¶36} “‘(a) convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction (…) has two components. First, the
defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it cannot be said that the
conviction (…) resulted from a breakdown in the adversary process that renders the
result unreliable.’
1. See also State v. Peoples, 11th Dist. Lake No. 2005-L-158, 2010-Ohio-2523, ¶17-30.
9
{¶37} “‘(…) When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation fell below
an objective standard of reasonableness.’ Id. at 687-688. State v. Bradley (1989), 42
Ohio St.3d 136, 142 …, quoting
Strickland, supra, at 694, states: ‘(t)o warrant
reversal, “(t)he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.”’
{¶38} “Very few criminal cases are reversed on the basis of an ineffective
assistance of counsel claim due to the fact that there is no clear standard on what
dictates ‘trial strategy.’ The present standard as set forth in Strickland sets a broad
standard for lawyer competency. Under Strickland and its interpretation by Ohio courts,
the mere possession of a law license, regardless of experience or criminal defense
training, and the most tenuous and reckless of trial strategies, renders counsel effective.
{¶39} “In a civil context, on the other hand, in order to establish a cause of action
for malpractice, a reasonableness standard is used in which a plaintiff must establish a
tripartite showing: ‘an attorney-client relationship giving rise to a duty, a breach of that
duty, and damages proximately caused by the breach.’ Savage v. Kucharski, 11th Dist.
No. 2005-L-141, 2006-Ohio-5165, at ¶30, citing Vahila v. Hall (1997),
77 Ohio St.3d 421
…, syllabus.
{¶40} “In order to prevail on a claim of ineffective assistance of counsel, the
defendant has the burden to establish two things: (1) that counsel’s performance was
deficient, and (2) that counsel’s deficiency prejudiced the defense. State v. Reynolds
10
(1998), 80 Ohio St.3d 670, 674 …, citing
Strickland, supra, at 687. The defendant
must produce evidence that counsel acted unreasonably by substantially violating
essential duties owed to the client. State v. Sallie (1998),
81 Ohio St.3d 673, 674 ….
{¶41} “A criminal defense attorney owes a duty of care to his client. A ‘duty’ is
defined as ‘(a) legal obligation that is owed or due to another and that needs to be
satisfied; an obligation for which somebody else has a corresponding right.’ Black’s
Law Dictionary (8 Ed.2004) 543.
{¶42} “Under Strickland as interpreted by Ohio courts, attorneys are presumed
competent, reviewing courts must refrain from second-guessing strategic, tactical
decisions and strongly presume that counsel’s performance falls within a wide range of
reasonable legal assistance. State v. Carter (1995), 72 Ohio St.3d 545, 558 …. See,
also, State v. Burley (Aug. 11, 1998), 7th Dist. No. 93-CA-204,
1998 Ohio App. LEXIS
3895, at *9 (a defendant is not guaranteed the right to the best or most brilliant counsel).
{¶43} “Upon demonstrating counsel’s deficient performance, the defendant then
has the burden to establish prejudice to the defense as a result of counsel’s deficiency.
Reynolds, supra, at 674. The reviewing court looks at the totality of the evidence and
decides if there exists a reasonable probability that, were it not for serious errors made,
the outcome of the trial would have been different.
Strickland, supra, at 695-696. A
reasonable probability is a probability sufficient to undermine confidence in the outcome
of the proceeding.
Id.
{¶44} “An attorney has a duty to zealously represent a criminal defendant.
‘Criminal defense is an art, not a science. Criminal defense attorneys adopt different
approaches to their craft, based partly upon the demands of the particular case, and
11
partly upon their own personal characteristics. Ordinarily, defense counsel’s particular
style of defense is not a basis for a claim of ineffective assistance of counsel.’ State v.
Benton (Jan. 20, 1993), 2d Dist. No. 91 CA 71, 1993 Ohio App. LEXIS 172, at *7. Ohio
Rule of Professional Conduct 1.1 prohibits a lawyer from representing a client in a legal
matter that the lawyer is professionally incompetent to manage. In reading an appellate
record, counsel’s experience, or lack thereof, in trying a particular type of criminal case
becomes evident.
{¶45} Appellant contends her trial counsel should have filed a motion to
suppress statements she made in a recorded interview at the ACSD after her arrest.
{¶46} “‘When claiming ineffective assistance due to failure to file or pursue a
motion to suppress, an appellant must point to evidence in the record showing there
was a reasonable probability the result of trial would have differed if the motion had
been filed or pursued.’” State v. Weimer, 11th Dist. Lake No. 2013-L-008, 2013-Ohio-
5651, ¶38, quoting State v. Walker, 11th Dist. Lake No. 2009-L-155, 2010-Ohio-4695,
¶15.
{¶47} Here, the trial court indicated it would have thrown out the tape had a
suppression hearing occurred. However, based on the evidence presented, there is no
reasonable probability the result of the trial would have differed if the motion had been
filed, pursued, or granted. Even without the tape, there was other evidence to support
the jury’s guilty verdict.
{¶48} Regarding the tape, trial counsel apparently believed the best way to
defend appellant was to let the recorded interview into evidence at trial. Appellant made
no admission of guilt in the interview and repeatedly denied providing Holley with
12
$4,000 to kill Luke which the state argued was an act in furtherance of the conspiracy.
Trial counsel’s theory was that appellant never gave Holley $4,000 and that she was not
serious about having Luke killed. Thus, trial counsel used the tape to prove the
defense’s theory. Trial counsel instructed the jury to watch the interview to see the look
of relief on appellant’s face when she learned that Luke was not dead. Trial counsel
also advised the jury that they would see that appellant denied giving Holley $4,000
multiple times throughout the recorded interview. Thus, there is no reasonable
probability the result of the trial would have differed if the motion had been filed or
pursued. Weimer, supra, at ¶38.
{¶49} Appellant also asserts her trial counsel should have objected to the
admission of the foregoing recording.
{¶50} “Trial tactics (including a failure to object) do not substantiate a claim of
ineffective assistance of counsel.” Henry, supra, at ¶78.
{¶51} As stated, appellant made no admission of guilt during the interview,
indicated she was joking with Holley, and repeatedly denied giving Holley $4,000, which
the state argued was an act in furtherance of the conspiracy. There was no Evid.R. 403
violation as appellant was not unfairly prejudiced by its admission. The recording was
used, in addition to other evidence, to assist the jury in determining whether appellant
was guilty of the charged offenses by showing appellant’s mental state as well as to
provide them with an opportunity to judge her credibility. Trial counsel was not
ineffective for failing to object and appellant was not deprived of a fair trial.
{¶52} Appellant further maintains her trial counsel should have pursued a motion
to disclose evidence of a deal between the state and Holley. She alleges that any
13
information obtained from such a motion could have been used as a means to damage
Holley’s credibility.
{¶53} We note that Holley’s credibility was already damaged. He testified he
was a convicted felon and served five years in a federal prison. Holley stated he
wanted to get paid for reporting the crime. He tried receiving money from Crime
Stoppers but was unsuccessful. He also indicated he requested immunity. During his
interview with police, a detective discussed immunity with Holley before Holley was sent
to appellant’s home wearing a wire. Holley was told during the interview that a deal
would be made with the prosecutor. Trial counsel was aware that an immunity deal had
been made. Based on the facts presented, any additional evidence obtained from a
motion to disclose evidence of a deal between the state and Holley would not have
changed the outcome of appellant’s trial.
{¶54} Lastly, appellant asserts her trial counsel failed to request finger print
analysis or DNA testing on the money bands and the envelope introduced by the state.
These items were provided by Holley to the ACSD. Holley indicated appellant gave him
$4,000 in the envelope and that it was wrapped in the bands.
{¶55} Resolving this issue in appellant’s favor would be purely speculative, as
nothing in the record indicates what the results of any finger print analysis or DNA
testing would have been. See State v. Jordan, 10th Dist. Franklin No. 11AP-691, 2012-
Ohio-1760, ¶24. Because appellant cannot demonstrate, based on evidence in the
record, that her trial counsel’s failure to have finger print analysis or DNA testing
prejudiced her, we reject this claim of ineffective assistance of counsel. Id., citing State
v. Carter,
89 Ohio St.3d 593, 606 (2000) (rejecting claim of ineffectiveness for counsel’s
14
failure to pursue MRI testing in the penalty phase); State v. Wallace, 10th Dist. Franklin
No. 08AP-2, 2008-Ohio-5260, ¶59 (rejecting ineffective assistance claim where claim
could only be proven with evidence outside the record).
{¶56} Appellant’s first assignment of error is without merit.
{¶57} In her second assignment of error, appellant contends her convictions for
conspiracy to commit aggravated murder are against the manifest weight of the
evidence.
{¶58} This court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994
Ohio App. LEXIS 5862, *14-15 (Dec. 23, 1994):
{¶59} “‘[M]anifest weight’ requires a review of the weight of the evidence
presented, not whether the state has offered sufficient evidence on each element of the
offense.
{¶60} “‘In determining whether the verdict was against the manifest weight of the
evidence, “(…) the court reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. (…)”’ ….” (Citations omitted.) (Emphasis sic.)
{¶61} A judgment of a trial court should be reversed as being against the
manifest weight of the evidence “‘only in the exceptional case in which the evidence
weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 387
(1997).
15
{¶62} With respect to the manifest weight of the evidence, we note that the jury
is in the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio
St.2d 230, paragraph one of the syllabus (1967).
{¶63} In reviewing and weighing all the evidence presented, we determine that a
jury could reasonably conclude appellant was guilty of the charged offenses. The jury
heard the evidence presented by the state that appellant gave Holley $4,000 to kill
Luke. The jury also heard the defense’s theory that appellant was only joking with
Holley about wanting Luke dead and that she never gave him $4,000. The jury
apparently placed great weight on and chose to believe the state’s witnesses as
opposed to appellant and her witnesses. DeHass, supra, at paragraph one of the
syllabus. We cannot say that the jury clearly lost its way in finding appellant guilty of
conspiracy to commit aggravated murder. Schlee, supra, at *14-15; Thompkins, supra,
at 387.
{¶64} Appellant’s second assignment of error is without merit.
{¶65} In her third assignment of error, appellant alleges the trial court failed to
properly consider the principles and purposes of sentencing under R.C. 2929.11 and
the seriousness and recidivism factors under R.C. 2929.12. She acknowledges her
sentence was within the statutory range but believes it was too harsh. Appellant
believes she has served enough time and should be released.
{¶66} This court recently stated in State v. Arkenburg, 11th Dist. Lake No. 2013-
L-087, 2014-Ohio-1361, ¶6-8:
{¶67} “‘Subsequent to State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856 …,
appellate courts have applied a two step approach in reviewing felony sentences. First,
16
courts “examine the sentencing court’s compliance with all applicable rules and statutes
in imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law. If this first prong is satisfied, the trial court’s decision in imposing the
term of imprisonment is reviewed under the abuse-of-discretion standard.” State v.
Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, ¶26 … (…).
{¶68} “‘A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing, which 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 burden on state or local government resources.” R.C. 2929.11(A). A
court imposing a sentence for a felony “has discretion to determine the most effective
way to comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code.” R.C. 2929.12(A). “In the exercise of this discretion, a
court ‘shall consider’ the non-exclusive list of seriousness and recidivism factors set
forth in R.C. 2929.12(B), (C), (D), and (E).” (Citation omitted.) State v. Putnam, 11th
Dist. No. 2012-L-026, 2012-Ohio-4891, ¶8; R.C. 2929.12(A).
{¶69} “‘There is no “mandate” for the sentencing court to engage in any factual
finding under these statutes. Rather, “(t)he court is merely to ‘consider’ the statutory
factors.” Foster at ¶42. This standard continues to be applicable after the recent
enactment of H.B. 86, which did not amend R.C. 2929.12. Putnam at ¶9, citing State v.
Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶24 (R.C. 2929.12
is “not (a) fact-finding statute() like R.C. 2929.14”).’ (Parallel citation omitted.) State v.
17
Beville, 11th Dist. Ashtabula No. 2012-A-0057, 2013-Ohio-2139, ¶9-11.” (Parallel
citations omitted.)
{¶70} Here, appellant was found guilty of two counts of conspiracy to commit
aggravated murder, felonies of the first degree. At sentencing, count two merged with
count one and the trial court imposed a nine-year prison term. For first degree felonies,
R.C. 2929.14(A)(1) states that “the prison term shall be three, four, five, six, seven,
eight, nine, ten, or eleven years.” Thus, appellant’s nine-year sentence was within the
statutory range under R.C. 2929.14(A)(1).
{¶71} At the sentencing hearing, the trial court gave careful and substantial
deliberation to the relevant statutory considerations. The record establishes the court
considered letters sent in support of both appellant and the prosecution. The court
considered statements made by appellant and her counsel. Specifically, appellant
claimed she did nothing wrong; she was well behaved while on house arrest; and her
child needs her at home instead of in prison. The court also considered the
prosecutor’s statement that appellant has shown “no remorse.”
{¶72} In addition, Luke spoke to the court concerning how this crime has “totally
devastated” her life. Luke’s son, Kolle Posey, also spoke to the court indicating how
this crime has affected his life “a lot” and how this has made him and his mother
“terrified.”
{¶73} In conclusion, the trial judge stated the following at the sentencing
hearing:
{¶74} “This is a very serious matter. Conspiracy to Commit Aggravated Murder,
a murder where you were going to plan the demise of an innocent person.
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{¶75} “…
{¶76} “…[A]s I review the evidence, you did everything you could possibly do
to see that this murder took place. …
{¶77} “If it hadn’t been for Mr. Holley going to the police, we might have a
homicide in this county. …
{¶78} “…
{¶79} “The evidence, I think, in this case was overwhelming. You were on tape.
There was a video made where you met once with Mr. Holley. There were text
messages, and this thing is, is in black and white. There’s no question in my mind that
you committed this act. And you committed many overt acts to further the actual death.
{¶80} “… This is not a probationable case. It’s not when you’re talking about
human life.
{¶81} “…
{¶82} “…[L]uckily there was no death. You committed a very serious act, and
there’s got to be a serious punishment. I don’t think you should get the maximum
penalty, because as I see in the Presentence Investigation Report you have no prior
criminal record at all that I can find. …
{¶83} “…
{¶84} “…[T]he Court’s considered the purposes and principles of the
sentencing statutes. The overriding purposes are to punish offenders and most
importantly to protect the public from future crime. And you’ve pretty clearly shown a
willingness to commit one of the most serious crimes known to man, and that’s taking a
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human life. There’s nobody on this earth that can replace life, that can create it, and
there’s nobody that has the power to take it either.
{¶85} “So the Court has considered the purposes and principles of the
sentencing statutes. I’ve considered the Presentence Reports. I’ve considered
everything that’s been put before me. Obviously, any form of probation would seriously
demean - - would demean the seriousness of your conduct and would not adequately
protect the public.
{¶86} “So it is the judgment and sentence of the Court that the defendant, Angel
M. Brown, be sentenced to the Ohio Reformatory for Women at Marysville, Ohio, for a
period of nine years.
{¶87} “…
{¶88} “… *The Court hereby notifies the defendant that after you’re released
from prison, you will - - this will be mandatory - - you will have a period of post-release
control for five years following your release from prison. ….”
{¶89} Furthermore, the trial court stated the following in its sentencing entry:
{¶90} “[D]efendant’s Sentencing Hearing was held pursuant to R.C. 2929.19. …
* [D]efendant … was afforded all rights pursuant to Criminal Rule 32. The Court has
considered the record, oral statements, any victim impact statement, as well as the
principles and purposes of sentencing under R.C. 2929.11, and has balanced the
seriousness and recidivism factors under R.C. 2929.12.
{¶91} “…
{¶92} “The Court further finds that the defendant is not amenable to community
control and that prison is consistent with the purposes of R.C. 2929.11.
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{¶93} “…
{¶94} “The Court has notified the defendant that the sentence imposed
automatically includes any extension of the stated prison term by the parole board,
pursuant to R.C. 2967.28.
{¶95} “In addition the defendant will be subject to a mandatory five (5) year
period of post-release control pursuant to R.C. 2929.14(F) and R.C. 2967.28(B) (C),
after the defendant is released from prison.”
{¶96} Thus, the record reflects the trial court gave due deliberation to the
relevant statutory considerations. The court considered the purposes and principles of
felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism
factors under R.C. 2929.12. The court sentenced appellant within the statutory range
under R.C. 2929.14(A)(1). Further, the record reveals the court properly advised
appellant regarding post-release control. Therefore, the trial court complied with all
applicable rules and statutes and, as a result, appellant’s sentence is not clearly and
convincingly contrary to law.
{¶97} Appellant’s third assignment of error is without merit.
{¶98} For the foregoing reasons, appellant’s assignments of error are not well-
taken. The judgment of the Ashtabula County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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