[Cite as State v. Cooper,
2016-Ohio-450.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
CASE NO. 4-15-10
PLAINTIFF-APPELLEE,
v.
JAMES L. COOPER, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 14 CR 11853
Judgment Affirmed
Date of Decision: February 8, 2016
APPEARANCES:
W. Alex Smith for Appellant
Russell R. Herman for Appellee
Case No. 4-15-10
WILLAMOWSKI, J.
{¶1} Defendant-appellant, James Cooper (“Cooper”), brings this appeal
from the judgment of the Common Pleas Court of Defiance County, Ohio, which
accepted his plea of guilty to one count of involuntary manslaughter, a felony of
the first degree in violation of R.C. 2903.04(A), and sentenced him to eleven years
in prison. For the reasons that follow, we affirm the trial court’s judgment.
Relevant Facts
{¶2} On January 24, 2014, Cooper was watching a five-month-old child of
his live-in-girlfriend, Emily, while Emily was sleeping. During that time, the child
sustained severe injuries, which led to the child’s death on January 26, 2014.
Medical findings led to a diagnosis of shaken baby syndrome, and the coroner
declared that the child died of complications of blunt force trauma to the head.
The investigation led to the charges in this case, filed against Cooper on January
30, 2014. A three-count indictment charged Cooper with one count of murder, an
unclassified felony in violation of R.C. 2903.02(B); one count of felonious assault,
a felony of the second degree in violation of R.C. 2903.11(A)(1); and one count of
endangering children, a felony of the second degree in violation of R.C.
2919.22(B)(1). (R. at 2.)
{¶3} Cooper initially pled not guilty. On November 3, the State agreed to
dismiss the underlying indictment in exchange for Cooper entering a guilty plea to
a newly-filed bill of information, charging him with one count of involuntary
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manslaughter, a felony of the first degree in violation of R.C. 2903.04(A). (See
Tr. of Proceedings at 3, Nov. 3, 2014; R. at 8, 17, 20.) No agreement was made as
to the sentencing. (Id.) Cooper entered a guilty plea under Alford v. North
Carolina,1 and the case proceeded to a sentencing hearing on December 22, 2014.
{¶4} After a pre-sentence investigation, the trial court sentenced Cooper to
eleven years in prison. Cooper filed this timely appeal in which he alleges one
assignment of error, as quoted below.
Assignment of Error
The trial court erred when it imposed a maximum sentence that was
contrary to law.
Standard of Review
{¶5} A trial court has discretion to impose a prison sentence that is within
the statutory range. State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855,
846
N.E.2d 1, ¶ 37; State v. Noble, 3d Dist. Logan No. 8-14-06,
2014-Ohio-5485, ¶ 9.
But in exercising that discretion, the trial court must “carefully consider” statutory
sentencing guidelines set forth by R.C. 2929.11 and R.C. 2929.12, as well as the
“statutes that are specific to the case itself.” Matthis at ¶ 38. If the defendant can
show, by clear and convincing evidence, that the trial court failed to consider or
follow the proper statutes, the sentence is subject to reversal as contrary to law.
See id. at ¶ 31-33; R.C. 2953.08(G)(2). Assuming, however, that the trial court
1
N. Carolina v. Alford,
400 U.S. 25,
91 S.Ct. 160,
27 L.Ed.2d 162 (1970) (recognizing that an adult
charged with criminal conduct could both enter a guilty plea to a charge and simultaneously maintain his
innocence); see In re Kirby,
101 Ohio St.3d 312,
2004-Ohio-970,
804 N.E.2d 476, 477, ¶ 3 (2004).
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Case No. 4-15-10
has complied with the applicable rules and statutes, its application of the relevant
R.C. 2929.11 and R.C. 2929.12 factors and selection of a sentence from the
permissible statutory range are subject to review for abuse of discretion. State v.
Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912,
896 N.E.2d 124, ¶ 17 (2008)
(plurality opinion); State v. Lewis, 11th Dist. Lake No. 2011-L-004, 2011-Ohio-
4700, ¶ 13-14.
Analysis
{¶6} Under R.C. 2929.11 the trial court “shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the
public, or both.” R.C. 2929.11(A). Furthermore, the trial court must ensure that
the sentence is “reasonably calculated to achieve the two overriding purposes of
felony 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 crimes committed by similar offenders.” R.C.
2929.11(B).
{¶7} Under R.C. 2929.12, the trial court shall consider a number of
additional factors that relate to the seriousness of the conduct, the likelihood of the
offender’s recidivism, and the offender’s service in the armed forces. As relevant
to this appeal, in determining the seriousness of the offender’s conduct, the trial
court is required to consider whether:
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(1) The physical or mental injury suffered by the victim of the
offense due to the conduct of the offender was exacerbated because
of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.
…
(6) The offender’s relationship with the victim facilitated the
offense.
…
R.C. 2929.12(B).
(3) In committing the offense, the offender did not cause or expect to
cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender’s conduct,
although the grounds are not enough to constitute a defense.
R.C. 2929.12(C). In determining whether the offender is likely to commit future
crimes, the trial court must consider the following factors:
(1) At the time of committing the offense, the offender was under
release from confinement before trial or sentencing; was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code; was under post-release control pursuant to
section 2967.28 or any other provision of the Revised Code for an
earlier offense or had been unfavorably terminated from post-release
control for a prior offense pursuant to division (B) of section
2967.16 or section 2929.141 of the Revised Code; was under
transitional control in connection with a prior offense; or had
absconded from the offender’s approved community placement
resulting in the offender’s removal from the transitional control
program under section 2967.26 of the Revised Code.
(2) The offender previously was adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to January 1,
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Case No. 4-15-10
2002, or pursuant to Chapter 2152. of the Revised Code, or the
offender has a history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory degree
after previously being adjudicated a delinquent child pursuant to
Chapter 2151. of the Revised Code prior to January 1, 2002, or
pursuant to Chapter 2152. of the Revised Code, or the offender has
not responded favorably to sanctions previously imposed for
criminal convictions.
(4) The offender has demonstrated a pattern of drug or alcohol abuse
that is related to the offense, and the offender refuses to
acknowledge that the offender has demonstrated that pattern, or the
offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
R.C. 2929.12(D).
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had led a lawabiding life for a significant number of years.
(4) The offense was committed under circumstances not likely to
recur.
(5) The offender shows genuine remorse for the offense.
R.C. 2929.12(E). Additionally, the trial court may consider any other factors that
are relevant to achieving the purposes and principles of sentencing. Although the
trial court must consider the applicable statutory factors, it is not required to make
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specific findings on the record with respect to these factors. Noble, 3d Dist. Logan
No. 8-14-06, 2014-Ohio-5485, ¶ 10.
{¶8} In his argument on appeal, Cooper does not allege that the trial court
failed to consider the statutory factors or that it imposed a sentence that is contrary
to law. Indeed, the trial court discussed the relevant factors on the record and
chose a sentence that fell within the statutory range for a felony of the first degree
(three to eleven years). R.C. 2929.14(A)(1).
{¶9} The trial court particularly discussed a presentence investigation
report prepared in this case and noted Cooper’s adjudication as a delinquent child
due to gross sexual imposition, which was an amended charge “from initial
allegations of Rape, for engaging in sexual contact with a four year [sic] female.”
(Tr. of Proceedings at 16, Dec. 22, 2014.) The trial court further noted underage
consumption of alcohol and a 2010 charge for domestic violence and child
endangering, which was pled down to two counts of disorderly conduct. (Id.) The
presentence investigation contained other information that the trial court
considered “disturbing,” including an account of events that led to the domestic
violence and child endangering charges, and allegations of Cooper being abusive
toward Emily. (Id. at 17-18.) It referred to statements from Emily, which
indicated that Cooper had previously held her child’s mouth shut to stop the child
from crying, causing bruising, or that he applied pressure to the child’s chest to the
point where the child could not breathe. (Id. at 18-19.) Another account indicated
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that Cooper’s four-year-old son had warned Emily that his “daddy is hurting the
baby.” (Id. at 19.) The trial court recognized that there were no charges against
Cooper stemming from these other allegations contained in the presentence
investigation report, but the totality of the circumstances demonstrated a history of
violent behavior. (Id. at 19; see id. at 5.) The trial court further commented that
Cooper attempted to avoid responsibility for his criminal behavior by stating that
he did not “have any idea what happened” to result in the child’s death. (Id. 20.)
{¶10} The trial court concluded that Cooper’s history and the circumstances
of the instant offense demonstrated that Cooper was a danger to the community
and “would likely engage in similar conduct if given an opportunity.” (Id. at 20.)
The trial court then compared the instant offense to other offenses of involuntary
manslaughter, which usually occur “in connection with a robbery offense gone
wrong” and concluded that this offense was made worse by “how bad the
underlying or predicate felony of Child Endangering is.” (Id.) Taking into
consideration the facts and circumstances of this case, Cooper’s history, his lack of
remorse, and the fact that it was the worst form of the offense, the trial court was
persuaded that Cooper was “among the most likely of criminal defendants to
commit new similar offenses.” (Id. at 21.) Further, the trial court determined that
the maximum sentence was “certainly not disproportionate to the harm caused, the
impact upon the principal victim, and the impact upon the tangential victims.”
(Id.)
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{¶11} Cooper’s argument on appeal suggests that the trial court improperly
applied the factors of R.C. 2929.11 and 2929.12. In particular, Cooper alleges that
the sentence is not “ ‘consistent with sentences imposed for similar crimes
committed by similar offenders,’ ” because “it is unlikely that other individuals
with no prior felonies would receive a maximum sentence.” (App’t Br. at 4-5,
quoting R.C. 2929.11(B).) He further contends that the trial court focused on the
death of a child and lack of remorse instead of “weighing the principles and
factors required by [R.C.] 2929.11 and 2929.12.” (App’t Br. at 6.)
{¶12} Cooper fails to sustain the merits of his first challenge, as he admits
in his brief that his allegation that other individuals with no prior felonies would
not receive a maximum sentence is “only speculative.” (App’t Br. at 5.) He fails
to sustain his other challenge as well. Contrary to his suggestion that the trial
court focused solely on the death of a child, a review of the sentencing transcript,
summarized above, shows that the trial court considered Cooper’s criminal record,
prior history of violence, allegations of abuse against Emily, accounts of prior
incidents of endangering Emily’s child, and the known details of the instant
offense, which led the trial court to conclude that a maximum sentence was
warranted.
{¶13} An appellate court should not substitute its judgment for that of the
trial court because the trial court is in a better position to judge the defendant’s
chances of recidivism and determine the effects of the crime on the victim. State
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v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16. We find no
abuse of discretion in the trial court’s analysis of the relevant statutory factors.
Furthermore, in light of the extensive evidence suggesting the likelihood of
Cooper’s recidivism, we find no error in the trial court’s imposition of a maximum
sentence. See Noble, 3d Dist. Logan No. 8-14-06,
2014-Ohio-5485, ¶ 11.
{¶14} Accordingly, the assignment of error is overruled.
Conclusion
{¶15} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Common Pleas Court of Defiance County, Ohio, is
therefore affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/hlo
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