[Cite as State v. Johnson,
2019-Ohio-1382.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28077
:
v. : Trial Court Case No. 2018-CR-739
:
ISHMEL JOHNSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of April, 2019.
...........
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2372 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant
.............
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DONOVAN, J.
{¶ 1} Defendant-appellant Ishmel Johnson appeals his conviction for one count of
domestic violence, in violation of R.C. 2919.25(A) and (D)(3), a felony of the fourth
degree. On July 26, 2018, Johnson filed a timely notice of appeal with this Court.
{¶ 2} The incident which formed the basis for Johnson’s conviction occurred on the
morning of February 22, 2018, when two officers from the Miamisburg Police Department
were dispatched to the intersection of Fourth Street and Lane Street on a report of a
domestic violence incident. Upon arriving, the officers made contact with A.M., the
victim, who informed them that she had recently been physically assaulted by her
boyfriend, Johnson, at their shared residence. Specifically, A.M. informed the police that
Johnson had been angry at her for returning home from work fifteen minutes late. At
some point during the argument, Johnson grabbed A.M. by the neck and pushed her into
a wall, causing her to hit her head.
{¶ 3} Eventually, A.M. was able to reach her vehicle, leave their residence, and
contact the police. The officers observed scratch marks on A.M.’s neck but could discern
no visible injury to her head. A.M. declined medical treatment at the scene. A
broadcast was issued for Johnson, and he was arrested in Trotwood two days later.
{¶ 4} On March 5, 2018, Johnson was indicted for one count of domestic violence
(knowingly, with one prior offense), in violation of R.C. 2919.25(A) and (D)(3), a felony of
the fourth degree. At his arraignment on March 12, 2018, Johnson stood mute, and the
trial court entered a plea of not guilty on his behalf.
{¶ 5} On May 15, 2018, Johnson pled guilty to one count of domestic violence.
Prior to conducting the plea colloquy, the trial court informed Johnson that the State’s
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sentencing recommendation was a term of community control sanctions and a
requirement that Johnson attend anger management classes. The trial court informed
Johnson that it was not bound by the State’s sentencing recommendation. Rather, the
trial court advised Johnson that it would rely on a presentence investigation report (PSI)
in order to determine the appropriate sentence to impose. Johnson stated that he
understood. Thereafter, the trial court accepted Johnson’s guilty plea and referred the
case to the adult probation department for a PSI.
{¶ 6} At his disposition on June 27, 2018, the trial court informed Johnson that it
had reviewed his PSI and found that he had “a serious history of violence.” The trial
court rejected the State’s sentencing recommendation and sentenced Johnson to 12
months in prison. The trial court filed Johnson’s judgment entry of conviction on June
29, 2018.
{¶ 7} It is from this judgment that Johnson now appeals.
{¶ 8} Johnson’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN IMPOSING A PRISON SENTENCE.
{¶ 9} In his assignment of error, Johnson contends that the record clearly and
convincingly fails to support the trial court’s imposition of a 12-month prison sentence.
{¶ 10} As this Court has previously noted:
“This court no longer applies an abuse of discretion standard when
reviewing felony sentences, as the Supreme Court of Ohio has made clear
that felony sentences are to be reviewed in accordance with the standard
set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016-
CA-28, 2016-Ohio-7415, ¶ 6, citing State v. Marcum,
146 Ohio St.3d 516,
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2016-Ohio-1002,
59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer, 2013-
Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.) Under the plain language of
R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence
that the record does not support the trial court’s findings under relevant
statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1.
“This is a very deferential standard of review, as the question is not whether
the trial court had clear and convincing evidence to support its findings, but
rather, whether we clearly and convincingly find that the record fails to
support the trial court’s findings.” State v. Cochran, 2d Dist. Clark No. 2016-
CA-33, 2017-Ohio-217, ¶ 7, citing Rodeffer at ¶ 31.
Even before Marcum, we had indicated “[t]he trial court has full
discretion to impose any sentence within the authorized statutory range,
and the court is not required to make any findings or give reasons for
imposing maximum or more than minimum sentences.” (Citation omitted.)
State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5759. Accord
State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14. But
“in exercising its discretion, a trial court must consider the statutory policies
that apply to every felony offense, including those set out in R.C. 2929.11
and R.C. 2929.12.” (Citations omitted.) State v. Castle, 2016-Ohio-4974,
67
N.E.3d 1283, ¶ 26 (2d Dist.). …
State v. Folk, 2d Dist. Montgomery No. 27375,
2017-Ohio-8105, ¶ 5-6.
{¶ 11} At Johnson’s sentencing hearing, the trial court made the following
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statements:
Sir, I reviewed your presentence investigation yesterday with the
director of our probation department to get some more feedback. You
have, as I said before, a serious history of violence. From my perspective,
you don’t take responsibility for you actions. You’ve had numerous
opportunities at Stop the Violence and other similar programs in the past.
The last time you were on supervision you were given an incomplete
termination which was six days before this offense.
After considering the purposes and principles of sentencing and the
seriousness and recidivism factors I’m going to sentence you to 12 months
at the Correctional Reception Center. You’ll be given all applicable jail time
credit, which is 14 days. There is no request for restitution. I am going to
order that you pay court costs as determined by the clerk of courts.
{¶ 12} Initially, Johnson argues that, because he pled to a felony of the fourth
degree, the trial court could not sentence him to a prison term unless it made findings
pursuant to R.C. 2929.13(B)(1)(b); that statute provides that “[t]he trial court has
discretion to impose a prison term upon an offender who is convicted of or pleads guilty
to a felony of the fourth or fifth degree that is not an offense of violence or that is a
qualifying assault offense if any of the following apply ….” The statute then lists eleven
specific factors. R.C. 2929.13(B)(1)(b)(i)-(xi).
{¶ 13} Pursuant to R.C. 2901.01(A)(9)(a), however, “domestic violence,” a
violation of R.C. 2919.25, is defined as an “offense of violence.” Furthermore, domestic
violence is not a “qualifying assault offense,” which is defined as “a violation of section
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2903.13 of the Revised Code for which the penalty provision in division (C)(8)(b) or
(C)(9)(b) of that section applies.” R.C. 2929.13(K)(4). Therefore, R.C. 2929.13(B)(1)(b)
has no application in the instant case. Rather, the section of the R.C. 2929.13 that does
apply here is (B)(2), which provides as follows:
(2) If division (B)(1) of this section does not apply, except as provided in
division (E), (F), or (G) of this section, in determining whether to impose a
prison term as a sanction for a felony of the fourth or fifth degree, the
sentencing court shall comply with the purposes and principles of
sentencing under section 2929.11 of the Revised Code and with section
2929.12 of the Revised Code.
(Emphasis added.) Upon review, the record establishes that the trial court relied on the
appropriate section of R.C. 2929.13 when it imposed a 12-month prison sentence on
Johnson.
{¶ 14} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
and principles of felony sentencing. Those purposes 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). The
court must “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.” Id. R.C. 2929.11(B) further provides that “[a]
sentence imposed for a felony shall be reasonably calculated to achieve the two
overriding purposes of felony sentencing …, commensurate with and not demeaning to
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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.”
{¶ 15} R.C. 2929.12(B) sets forth nine factors indicating an offender’s conduct is
more serious than conduct normally constituting the offense. R.C. 2929.12(C) sets forth
four factors indicating that an offender’s conduct is less serious. R.C. 2929.12(D) and
(E) each list five factors that trial courts are to consider regarding the offender’s likelihood
of committing future crimes. Finally, R.C. 2929.12(F) requires the sentencing court to
consider the offender’s military service record and “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.”
{¶ 16} At Johnson’s sentencing hearing, the trial court stated that it had received
and reviewed the PSI. The trial court also stated that it had considered “the purposes and
principles of sentencing and the seriousness and recidivism factors,” and it noted that
Johnson’s conviction for domestic violence could carry “a prison term of 6, 7, 8, 9, 10, 11,
12, 13, 14, 15, 16, 17, or 18 months ….”
{¶ 17} We also note that Johnson had an extensive criminal record. As a juvenile,
Johnson was adjudicated a delinquent for criminal trespassing and criminal damaging.
Johnson’s adult misdemeanor record reflected that he had convictions for petty theft, two
separate convictions for open container violations, assault, four separate instances of
disorderly conduct, public intoxication, resisting arrest, and three convictions for
obstructing official business. Significantly, in 2015, Johnson was convicted of domestic
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violence.1 Johnson’s PSI indicated that, in that case, he struck the female victim multiple
times with closed fists and a cane, and he took her phone and threw it at her when she
attempted to call 911.
{¶ 18} Johnson’s adult felony record reflects that he had been convicted of assault
on a peace officer in 2003.2 Johnson’s PSI indicated that, in that case, he “became
combative during a traffic stop, kicking the arresting officers, spitting on the officers, and
damaging the backseat window of a police cruiser.” Additionally, Johnson had been
convicted of possession of cocaine and non-support of dependents.
{¶ 19} In the case at bar, the trial court imposed a sentence within the permissible
statutory range. The record establishes that the trial court properly reviewed the PSI,
Johnson’s statements, and the statements of counsel. The record further establishes
that the trial court considered the principles and purposes of sentencing under R.C.
2929.11, and that it balanced the seriousness and recidivism factors set forth in R.C.
2929.12. In sum, we are unable to find “by clear and convincing evidence that the record
does not support the sentence.” Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59
N.E.3d 1231, at ¶ 23. The sentence is not contrary to law.
{¶ 20} Johnson’s assignment of error is overruled.
{¶ 21} Johnson’s assignment of error having been overruled, the judgment of the
trial court is affirmed.
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1 Montgomery C.P. No. 2015 CR 0594.
2 Montgomery C.P. No. 2003 CR 0004.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Michael J. Scarpelli
Thomas M. Kollin
Hon. Mary Katherine Huffman
