[Cite as State v. Johnson,
2019-Ohio-4668.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107528
v. :
ADRIAN JOHNSON, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: November 14, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-625186-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha Forchione and Daniel Van, Assistant
Prosecuting Attorneys, for appellee.
Edward F. Borkowski, Jr., for appellant.
PATRICIA ANN BLACKMON, J.:
Adrian Johnson, Jr., (“Johnson”) appeals from the trial court’s
imposition of a 15-year prison sentence, after Johnson pled guilty to aggravated
robbery and weapons charges, and assigns the following errors for our review:
I. The trial court erred by imposing consecutive sentences without
making the necessary statutory findings.
II. Appellant’s sentence is contrary to law because the trial court
failed to properly consider and weigh the relevant statutory
principles and factors.
III. The trial court’s bias against appellant deprived him of a fair
sentencing hearing in violation of his due process rights.
Having reviewed the record and pertinent law, all three panel judges
agree that Johnson’s first assigned error arguing that the trial court failed to make
the consecutive sentence findings should be sustained. Thus, all three judges agree
to vacate the trial court’s sentencing order only as it relates to consecutive sentences
and remand this matter to the trial court for the limited purpose of considering
whether consecutive sentences are appropriate under R.C. 2929.14(C) and, if so,
entering the required findings on the record.
All three panel judges also agree that Johnson’s third assigned error
regarding judicial bias is without merit. Thus, Johnson’s third assigned error is
overruled.
With respect to Johnson’s second assigned error, the three panel
judges disagree. This lead opinion would sustain Johnson’s second assigned error
and find that the record does not support the maximum 15-year sentence that the
court imposed. However, both the first separate opinion and the second separate
opinion would overrule Johnson’s second assigned error, but disagree on the law
and reasoning as to why it should be overruled. Thus, a majority of the judges, as
noted in the first and second separate opinions, agree to overrule this assigned error.
Therefore, Johnson’s second assigned error is overruled.
I. Facts and Procedural History
On June 20, 2018, Johnson pled guilty to aggravated robbery in
violation of R.C. 2911.01(A)(1), with a one-year firearm specification, which is a first-
degree felony, and having a weapon while under disability in violation of R.C.
2923.13(A)(2), which is a third-degree felony. On July 17, 2018, the court sentenced
Johnson to the maximum term of 11 years in prison for the aggravated robbery, one
year in prison for the firearm specification, and three years in prison for the having
a weapon while under disability conviction, all to run consecutively, for a total prison
term of 15 years. It is from this sentence that Johnson appeals.
II. Felony Sentencing
A. Standard of Review
R.C. 2953.08(G)(2) provides, in part, that when reviewing felony
sentences, the appellate court’s standard is not whether the sentencing court abused
its discretion; rather, if this court “clearly and convincingly” finds that (1) “the record
does not support the sentencing court’s findings under” R.C. Chapter 2929 or (2)
“the sentence is otherwise contrary to law,” then we may conclude that the court
erred in sentencing. See also State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231.
A sentence is not clearly and convincingly contrary to law “where the
trial court considers the purposes and principles of sentencing under R.C. 2929.11
as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly
applies post-release control, and sentences a defendant within the permissible
statutory range.” State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525,
¶ 10.
Pursuant to R.C. 2929.11(A), the three overriding purposes of felony
sentencing are “to protect the public from future crime by the offender and others,”
“to punish the offender,” and “to promote the effective rehabilitation of the offender
using the minimum sanctions that the court determines accomplish those purposes
….” Additionally, the sentence imposed shall be “commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact on the victim,
and consistent with sentences imposed for similar crimes committed by similar
offenders.” R.C. 2929.11(B).
Furthermore, in imposing a felony sentence, “the court shall consider
the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the
conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the
likelihood of the offender’s recidivism ….” R.C. 2929.12. However, this court has
held that “[a]lthough the trial court must consider the principles and purposes of
sentencing as well as the mitigating factors, the court is not required to use
particular language or make specific findings on the record regarding its
consideration of those factors.” State v. Carter, 8th Dist. Cuyahoga No. 103279,
2016-Ohio-2725, ¶ 15.
B. Consecutive Sentences
Additionally, “to impose consecutive terms of imprisonment, a trial
court is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry ….” State
v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 37. Pursuant to
R.C. 2929.14(C)(4), the court must find consecutive sentences are “necessary to
protect the public from future crime or to punish the offender”; “not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public”; and at least one of the following three factors:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
…, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
III. The Sentencing Hearing
At Johnson’s sentencing hearing, the state indicated on the record the
facts surrounding Johnson’s convictions: Johnson and three other males robbed
Johnson’s relatives at gunpoint in their home. Johnson allegedly believed there was
a gun at the house that he was “entitled to.” According to the state, Johnson was on
probation at the time of the offense. As a recommendation to the court, the
prosecutor stated on the record that “a prison sentence is appropriate in this case.”
One of the victims gave a statement at the hearing, parts of which
follow:
Adrian is family. Given the situation, he’s been in and out of trouble.
…
When I found out there was a gun in my house, I had a whole talk with
him. A gun is not allowed in my house like that. I told his mom come
get him, he’s being disrespectful to my home. He was not welcome
back.
So he went to the back, he got into a fight with my younger son. His
friend, he came to the door, they pulled guns on me and my son. At
that moment, that’s like the worst thing I ever had. I had to step in
front of my son because I didn’t want him to be shot or take my kid out.
That was the tough decision to make.
But I grabbed my son, held him and I prayed that if anything happened,
happen to me because I couldn’t see burying one of my kids. Too many
bad decisions have happened to children, I can’t imagine it happening
to me.
Give him a couple years to get him to understand what could have
happened to our family, how devastating this situation could have
turned out. It’s not like I haven’t tried to help him. We all have. But at
this time, I think he needs some time to think because it’s not changed
anything, the way he thinks.
In mitigation, Johnson’s attorney stated on the record that the victims
in this case were Johnson’s relatives and friends, Johnson was “very apologetic”
about what happened, and he “was going to get what he believed to be his property,
[but] that’s not the way it should have been handled.” Counsel stated that Johnson
turned himself in to the police and apologized to the victims via text messages.
Counsel further stated that Johnson was “still a young kid. Certainly we don’t want
a large amount of prison time to cause him to suddenly get into that mindset of a
revolving door. I think the minimum sentence you could give is 4 years. That’s a
sizeable amount of time, certainly would correlate with the wishes of the victim and
the sons.”
Johnson’s mother, Taiwarna Powell, also made a statement at the
sentencing hearing and the following colloquy took place:
MS. POWELL: My son has made choices that hasn’t been great for
him, but he has got to a point where he turned around and was making
better choices for himself. He does listen. You might not think that he
hears you. He listens. Even in this situation, he feels like he needs to
have some type of protection on him to walk around in Ohio and the
thing is, my son wasn’t the only person, it was more than just him that
was involved.
I do apologize about the fact that he went to the house which he
shouldn’t have. I talked to him myself about going over there. He felt
he needed to be around other boys that he felt were making better
choices. Adrian’s intentions, he asked to borrow a gun, he was going to
a different area that he was not used to and he wanted to feel safe for
himself. It was his intentions.
THE COURT: Do you understand he’s on probation for felonious
assault?
MS. POWELL: I understand that. I understand he shouldn’t have
had a weapon. I understand that situation is the reason why he was in
jail for felonious assault.
I also — Adrian should have left it up to the police. They hadn’t taken
fingerprints or anything. They started on their way to school one day —
THE COURT: You want to retry that case, too?
MS. POWELL: They got into a fight.
THE COURT: Do you want to go over his juvenile record of
assault, riot, criminal trespass? Ms. Powell, you have been given an
opportunity to speak. You are not helping your son’s case now. I see
why he’s been enabled to continue the criminal type behavior.
MS. POWELL: Could you tell me why?
THE COURT: Why what?
MS. POWELL: Why do you say that?
THE COURT: You are up here apologizing.
MS. POWELL: I apologize for the fact he shouldn’t have went to
that house. That’s something he shouldn’t have done. He shouldn’t
have had a gun, either, that wasn’t a good choice.
THE COURT: Yes, it’s a felonious assault case. There is a lot of
shouldn’t there.
MS. POWELL: I’m a domestic violence survivor. For six-and-a-
half years I was in a relationship with someone, his dad was abusive. I
have post traumatic stress just as my son did.
THE COURT: We are not here to talk about you.
MS. POWELL: You could not insult me as a mother, because I have
been there as a mother for my son. I made sure my son had gone to
school. I have been a parent.
THE COURT: Ms. Powell, we are not here to talk about you.
MS. POWELL: Other kids’ mentor. Anything that I could have, for
my son, because I care about my son.
THE COURT: Are you done?
MS. POWELL: No. I apologize to the mother and I apologize to the
two victims.
THE COURT: We are not going to have courtroom conversation.
You can sit down.
MS. POWELL: Thank you.
The court then questioned the issue of Powell being a survivor of
domestic violence, asking defense counsel, “what does that have to do with your
client’s violent criminal history?” Defense counsel replied that Johnson witnessed
violence in the home as a child and was also abused, stating that “[i]t was a tough
position they were in when he was growing up.”
The court asked Johnson if there was anything he would like to say.
Johnson replied, “I don’t got nothing to say.” The court then sentenced Johnson as
follows:
THE COURT: Okay. Mr. Johnson, well, I do. It’s my intention to
remove you from society for as long as I can. You are a monster. You
frankly scare me. Your behavior is inappropriate throughout this case.
The way you stand and look speaks to your character.
You were on probation [for felonious assault] when you committed this
crime of aggravated robbery …. You received a gift of probation on
an offense that carries with it a presumption of prison in the case
number 605931.
While on that case, you felt the need to go possess a firearm, use the
firearm, use force to get that firearm, bring a couple other people in this
situation. Then you identify a poor, innocent guy who gets locked up
with you.3 Thankfully he had a job — if you interrupt me it’s not going
to go well for you.
JOHNSON: You do what you got to do.
THE COURT: I will do what I have to do. Sit down or you are
going with him. Carmen, one more word, take her into custody.
Mr. Johnson, if I had any doubts as to whether you should ever walk
free among organized society again, it was clearly a mistake. I’m going
to give consecutive maximum time on this case.
3 It is unclear from the record what the court is referring to.
The court then stated the following regarding consecutive sentences:
I have considered the seriousness and recidivism factors and the
purposes and principles of our sentencing statutes. This serious felony
of the first degree offense that was committed with a firearm was
committed while you were on community control [sanctions] in case
number 605931.
Let’s review your Juvenile Court history. 2014, adjudicated delinquent
on riot and disorderly conduct in case number 14-109739. April of
2014, adjudicated delinquent on attempted assault in case number 14-
109751. June of 2014, adjudicated delinquent on a breaking and
entering and criminal trespass, case 14-111090.
July of 2014, adjudicated delinquent, sale to underage persons. August
of 2014, adjudicated delinquent on an assault and resisting charge in
14-111094. 2014, August 9, adjudicated delinquent on an aggravated
menacing case, 14-112199.
September of 2014, adjudicated delinquent on case number 14-111339,
criminal trespass. December of 2014, adjudicated delinquent on
another criminal trespass.
And then April of 2016, you picked up your felonious assault case. You
were placed in the community based correctional facility program and
while on that, you picked up a riot case, May of 20[1]7 in Bedford
Municipal Court. You have a warrant out for your failure to appear.
Now you are here on this case.
You will receive 11 years on the base count subsequent to the one-year
firearm specification on Count 2. That will run consecutive to 36
months on Count 6. You will also serve that consecutive to the penalty
Judge Fuerst will impose in case 605931.
You will be placed on a mandatory five-year period of post-release
control following the completion of your prison term. You will be
serving on this case 14 [sic] years consecutive to whatever you get on
the 2 to 8 year sentence hanging over your head in Judge Fuerst’s room.
I would suggest you comport yourself a little better in front of Judge
Fuerst, and don’t ask your mom to come to sentencing. You are ordered
remanded. Good luck.
In the case at hand, the court found that Johnson was on probation
when he committed the offenses in question. The court also stated on the record
that it “considered the seriousness and recidivism factors and the purposes and
principles of our sentencing statutes.” The court categorized Johnson’s actions as
“serious” and noted his history of being adjudicated delinquent as a juvenile, as well
as having one previous felony conviction as an adult, for which he was sentenced to
community control sanctions.
The court stated at Johnson’s sentencing hearing that it received and
reviewed Johnson’s presentence investigation report. This report details Johnson’s
offense as follows: On November 22, 2017, at 2:00 p.m., Johnson and two other
males arrived at Johnson’s relatives’ house to retrieve “a borrowed handgun.” After
an argument, the victims would not let Johnson inside the house. He and the other
males “rushed inside the residence and drew handguns.” While holding the victims
at gunpoint, the males took “$400 cash and a hand gun” from the victims. Johnson
allegedly struck one of the victims, and the three males fled the scene.
The victims called 911, and one of the males was apprehended while
fleeing. This suspect, along with the victims, identified Johnson as the one who
planned the robbery. Ultimately, Johnson admitted to the police that he was present
during the incident.
The presentence investigation report lists Johnson’s age at the time
of the offense as 20 and states that he completed the 11th grade before being
“expelled from school for fighting.” Johnson has difficulty reading and writing, he
has never served time in prison prior to this case, and he has no history of mental or
physical health problems. Johnson denied having a substance abuse problem,
although he self-reported that he has been using alcohol since he was 13 and
marijuana since he was 14. Johnson lives with his mother, has no job, and pays no
rent. According to the report, Johnson’s recidivism risk level is “moderate.”
IV. Analysis
A. Consecutive Sentences
In Johnson’s first assigned error, he argues that the court failed to
make the necessary statutory findings before imposing consecutive sentences. Upon
review, we find that the court failed to make the findings, both at the sentencing
hearing and in the sentencing journal entry, required under R.C. 2929.14(C) to
impose consecutive sentences. See State v. Jones, 93 Ohio St.3d 391, 399,
754
N.E.2d 1252 (2001) (“when a trial court imposes consecutive sentences, it must state
on the record its reasons for doing so”). For example, there is no finding by the court
that Johnson’s sentence is necessary to protect the public, punish the offender, or
“not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public” pursuant to R.C. 2929.14(C)(4). See R.C.
2953.08(G)(2). See also State v. Hairston, 10th Dist. Franklin Nos. 17AP-416, 17AP-
417,
2017-Ohio-8719, ¶ 13 (remanding case for resentencing because “the trial court
did not make the complete disproportionality finding as required by R.C.
2929.14(C)(4)”).
Accordingly, Johnson’s first assigned error is sustained. Sentence
vacated, and case remanded for the limited purpose of resentencing in accordance
with R.C. 2929.14(C)(4). See State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-
Ohio-2527 (“the trial court is limited on remand to only the … required findings
pursuant to R.C. 2929.14(C)(4) to justify consecutive sentences”).
V. Court Bias and a Fair Sentencing Hearing
In Johnson’s third assigned error, he argues that the trial court was
biased against him and deprived him of a fair sentencing hearing.
It is well settled that a criminal trial before a biased judge is
fundamentally unfair and denies a defendant due process of the law.
… We have described judicial bias as “a hostile feeling or spirit of ill
will … 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.
Generally, a challenge to a trial judge’s objectivity must comport with
the procedures outlined in R.C. 2701.03, section (A) of which states that “any party
to the proceeding or the party’s counsel may file an affidavit of disqualification with
the clerk of the supreme court ….” Therefore, “[w]e have no authority to
determine a claim that a trial judge is biased or prejudiced against a defendant and
no authority to void a trial court’s judgment based on a claim that the trial judge is
biased or prejudiced.” State v. Williamson, 8th Dist. Cuyahoga No. 104294, 2016-
Ohio-7053, ¶ 27.
However, Ohio courts have held that a judicial bias claim may be
interpreted “as an argument that [the defendant’s] sentence is contrary to law based
on a due process violation.” See, e.g., State v. Frazier, 8th Dist. Cuyahoga No.
104264, 2017-Ohio-8307, ¶ 15. Furthermore, “[t]he law presumes that a judge is
unbiased and unprejudiced in the matters over which he or she presides, and the
appearance of bias or prejudice must be compelling in order to overcome the
presumption.” State v. Filous, 8th Dist. Cuyahoga No. 104287,
2016-Ohio-8312,
¶ 14.
“If the trial judge forms an opinion based on facts introduced or
events occurring during the course of the current or prior proceedings, this does not
rise to the level of judicial bias ….” State v. Hough, 8th Dist. Cuyahoga Nos. 98480
and 98482, 2013-Ohio-1543, ¶ 11. However, an exception to this rule occurs if the
judge’s opinions “display a deep-seated favoritism or antagonism that would make
fair judgment impossible.” Liteky v. United States,
510 U.S. 540, 555,
114 S.Ct. 1147,
127 L.Ed.2d 474 (1994).
It appears from the sentencing hearing transcript in the case at hand
that the court did not like the way Johnson presented himself throughout these
proceedings, and it did not like Johnson’s mother’s remarks. The court referred to
Johnson as a “monster.” The court found the manner in which Johnson was
standing to be “inappropriate.” The court stated, “[I]f I had any doubts as to whether
you should ever walk free among organized society again, it was clearly a mistake.”
The court told Johnson that if he interrupted, “[I]t’s not going to go well for you.”
Additionally, the court was brusque with Johnson’s mother, telling
her that she was “not helping your son’s case now. I see why he’s been enabled to
continue the criminal type behavior.” The court asked Johnson’s mother if she
wanted to retry his juvenile cases and told Johnson not to bring his mother to the
upcoming sentencing hearing for the violation of his community control sanctions.
While we cannot condone the court’s extraneous comments, they do
not rise to the level of a due process violation nor do they render Johnson’s sentence
contrary to law. Accordingly, Johnson’s third assigned error is overruled.
VI. Felony Sentencing Under R.C. 2929.11 and 2929.12
In his second assigned error, Johnson argues that his “sentence is
contrary to law because the trial court failed to properly consider and weigh the
relevant statutory principles and factors.”
This lead opinion and the second separate opinion agree that a trial
court may review the record to determine if it clearly and convincingly supports the
given sentence under R.C. Chapter 2929. This is the current law in Ohio regarding
felony sentencing. See Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d
1231, at ¶ 23 (“an appellate court may vacate or modify any sentence that is not
clearly and convincingly contrary to law only if the appellate court finds by clear and
convincing evidence that the record does not support the sentence”); State v. Jones,
2018-Ohio-498,
105 N.E.3d 702 (8th Dist.), ¶ 20, (concluding in an en banc decision
that appellate review of felony sentences “includes the considerations under R.C.
2929.11 and the findings under 2929.12”).
We are aware that the trial court does not have to make findings on
the record regarding the R.C. 2929.11 and 2929.12 sentencing factors. We are also
aware that appellate courts may not substitute their judgment for the trial court’s
judgment nor may they independently weigh the sentencing factors. That is not to
say, however, that appellate courts have no authority to review an individual felony
sentence based on whether it is excessive given the evidence in the record.4 As the
Ohio Supreme Court noted in Marcum,
it is fully consistent for appellate courts to review those sentences that
are imposed solely after consideration of the factors in R.C. 2929.11 and
2929.12 under a standard that is equally deferential to the sentencing
court. That is, an appellate court may vacate or modify any sentence
that is not clearly and convincingly contrary to law only if the appellate
court finds by clear and convincing evidence that the record does not
support the sentence.
Marcum at ¶ 23.
Meaningful appellate review allows this court to consider the parties’
arguments “through the lens of the law.” Jones at ¶ 19. Felony sentencing law in
Ohio grants trial courts substantial, but not unfettered, discretion to impose a
sentence within the statutory range. In like manner, the law grants appellate courts
4 A similar proposition of law is pending review in State v. Gwynne, Ohio Supreme
Court No. 2017-1506. The proposition of law is: “Does R.C. 2953.08(G)(2) allow a Court
of Appeals to review the trial court’s findings made pursuant to R.C. 2929.11 and 2929.12.”
This court’s en banc decision in Jones has been accepted for review by the Ohio Supreme
Court and is being held for the decision in Gwynne. See 9/12/2018 Case Announcements,
153 Ohio St.3d 1474,
2018-Ohio-3637,
106 N.E.3d 1260.
the authority to review felony sentences with substantial, but not unfettered,
deference to the trial court’s judgment.
The first separate opinion reaches a different conclusion regarding
the law and would find that “this court has no basis to reverse a prison sentence
imposed within the applicable statutory range for the felony offense unless there is
objective information in the record that the trial court (1) failed to consider R.C.
2929.11 and 2929.12 in formulating the sentence, or (2) relied on demonstrably false
or inaccurate information when making said considerations.”
Respectfully, the first separate opinion’s reasoning loses sight of the
purposes and principles of Ohio’s felony sentencing statutes. Under this view, a
court could properly impose the maximum sentence for every felony on its docket if
it states on the record that it considered the proper sentencing statutes. The unique
facts of each case would be meaningless, the seriousness of each offense would be
diluted, and the difference between depraved criminals and offenders who may be
rehabilitated would be eradicated.
Although this lead opinion and the second separate opinion agree on
the law, the panel members disagree on the disposition of the second assigned error
after applying the facts of this case to the law.
It is my opinion that in the case at hand the record does not clearly
and convincingly support the court’s decision to sentence Johnson to maximum
consecutive prison terms. Although the court stated that it “considered” the proper
factors, Johnson’s sentence is objectively unreasonable and unsupported by the
evidence in the record.
The record does not support that the maximum consecutive sentence
was needed to protect the public from Johnson or to punish Johnson for the crimes
committed. Furthermore, the record does not support the notion that courts should
“promote the effective rehabilitation of the offender using the minimum sanctions
that the court determines accomplish” the purposes and principles of felony
sentencing. Particularly in light of the victim’s statement to the court, this sentence
is not commensurate to the seriousness of Johnson’s conduct nor its impact on the
victims.
Additionally, the only evidence in the record concerning Johnson’s
recidivism risk is in his presentence investigation report, which lists his level as
“moderate.” Furthermore, there is no evidence to support that Johnson’s sentence
was “consistent with sentences imposed for similar crimes committed by similar
offenders,” pursuant to R.C. 2929.11(B).
Accordingly, I would sustain Johnson’s second assigned error.
However, the first and second separate opinions agree to overrule Johnson’s second
assigned error, albeit for different reasons.
In summary, Johnson’s first assigned error is sustained, and his
second and third assigned errors are overruled. We vacate the trial court’s
sentencing order only as it relates to consecutive sentences and remand this matter
to the trial court for the limited purpose of considering whether consecutive
sentences are appropriate under R.C. 2929.14(C) and, if so, entering the required
findings on the record
Sentence vacated. Case remanded for limited resentencing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___
PATRICIA ANN BLACKMON, JUDGE
EILEEN T. GALLAGHER, P.J., CONCURS IN PART
AND DISSENTS IN PART WITH SEPARATE
OPINION;
MARY J. BOYLE, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE OPINION
EILEEN T. GALLAGHER, P.J., CONCURRING IN PART AND DISSENTING IN
PART:
I concur with the majority’s resolution of the first assignment of error.
After careful review of the sentencing transcript, I agree with Johnson that the trial
court failed to make the necessary findings for imposing consecutive sentences
under R.C. 2929.14(C)(4). In addition, I concur with the majority’s resolution of the
third assignment of error, because Johnson failed to set forth a meritorious judicial
bias claim. However, I respectfully disagree with the lead opinion’s position that the
record does not support the sentence. I further disagree with the lead and second
separate opinion’s subjective approach to appellate review of felony sentences.
To begin, I note that Johnson’s second assignment of error challenges
the adequacy of the trial court’s sentencing considerations under R.C. 2929.11 and
2929.12. Johnson argues the trial court did not “properly” consider the relevant
recidivism factors under R.C. 2929.12 and, therefore, imposed an aggregate prison
term that “is contrary to law.” While Johnson references the aggregate prison term
he received, appellate review of a trial court’s consideration of the applicable
sentencing criteria under R.C. 2929.11 and 2929.12 does not implicate the
consecutive nature of the sentences. Rather, our review of the court’s compliance
with R.C 2929.11 and 2929.12 concerns the individual sentence imposed on each
felony offense. Thus, the majority’s determination that the record does not support
the relevant R.C. 2929.14(C)(4) consecutive sentence findings concerns an issue that
is distinct from whether the record supports the prison term imposed on each
offense.
A sentence is contrary to law if it falls outside the statutory range for
the particular degree of offense or if the trial court fails to consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors
set forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-
Ohio-5926, ¶ 58. Although the trial court must consider the purposes and principles
of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.
2929.12, the court is not required to make findings or give reasons for imposing
more than the minimum sentence. State v. Pavlina, 8th Dist. Cuyahoga No. 99207,
2013-Ohio-3620, ¶ 15, citing State v. Foster,
109 Ohio St.3d 1,
2006-Ohio-856,
845
N.E.2d 470. A trial court’s general statement that it considered the required
statutory factors, without more, is sufficient to fulfill its obligations under the
sentencing statutes.
Id., citing State v. Wright, 8th Dist. Cuyahoga No. 95096, 2011-
Ohio-733, ¶ 4. And because courts have full discretion to impose sentences within
the statutory range, a sentence imposed within the statutory range is “presumptively
valid” if the court considered the applicable sentencing factors.
Id., citing State v.
Collier, 8th Dist. Cuyahoga No. 95572,
2011-Ohio-2791, ¶ 15.
As stated by the lead opinion, when a sentence is imposed solely after
consideration of the factors in R.C. 2929.11 and 2929.12, “[a]n appellate court may
vacate or modify any sentence that is not clearly and convincingly contrary to law
only if the appellate court finds 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.
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the
syllabus.
Significantly, an “‘appellate court’s standard for review is not whether
the sentencing court abused its discretion.’ As a practical consideration, this means
that appellate courts are prohibited from substituting their judgment for that of the
trial judge.” State v. Venes, 2013-Ohio-1891,
992 N.E.2d 453, ¶ 20 (8th Dist.). “This
is an extremely deferential standard of review.” Id. at ¶ 21.
In this case, the record reflects that in formulating Johnson’s
sentence, the trial court stated that it “considered the seriousness and recidivism
factors and the purposes and principles of our sentencing statutes.” Despite this
unambiguous statement, however, the lead opinion concludes that “Johnson’s
sentence is objectively unreasonable and unsupported by the evidence in the
record.” Without specifying how the record is objectively inadequate, the lead
opinion finds that the record does not support the court’s considerations under R.C.
2929.11 and 2929.12. After careful consideration, I am unable to join this
assessment of the record.
In my view, the lead opinion’s conclusion impermissibly discounts
the discretion afforded to sentencing courts and imposes a fact-finding obligation
on the trial court when no such requirement is mandated by the Ohio Revised Code.
Contrary to the implications of the lead opinion’s holding, the trial court was not
required to verbally analyze, weigh, or make findings on the record regarding the
relevant mitigating factors. By failing to accept the trial court’s statement that it
made the necessary statutory considerations, the lead opinion is merely substituting
its judgment for that of the trial court, which appellate courts are not permitted to
do. State v. McCoy, 8th Dist. Cuyahoga No. 107029, 2019-Ohio-868, ¶ 19 (“We
cannot substitute our judgment for that of the sentencing judge.”). Moreover, by
contemplating the seriousness of Johnson’s conduct in light of the relevant
mitigating factors, I believe the lead opinion is independently weighing the
sentencing factors, which appellate courts are also not permitted to do. State v.
Ongert, 8th Dist. Cuyahoga No. 103208,
2016-Ohio-1543, ¶ 14; State v. Price, 8th
Dist. Cuyahoga No. 104341,
2017-Ohio-533, ¶ 20; State v. Bailey, 8th Dist.
Cuyahoga No. 107216,
2019-Ohio-1242, ¶ 15; State v. Rahab,
150 Ohio St.3d 152,
2017-Ohio-1401,
80 N.E.3d 431, ¶ 10; and State v. Anderson, 8th Dist. Cuyahoga
No. 103490,
2016-Ohio-3323, ¶ 9. While the lead opinion uses the phrase
“objectively unreasonable,” the lead opinion’s analysis demonstrates that it finds the
sentences imposed on each offense to be excessive under the facts and
circumstances of this case. Respectfully, this is a subjective conclusion that usurps
the discretion of the sentencing court. Because appellate courts are not sentencing
courts, I believe this decision goes against the clear standard of review set forth in
R.C. 2952.08(G) and is contrary to well-established precedent of this court.
Upon review, I believe the record demonstrates that the trial court
imposed individual prison terms within the applicable statutory ranges, and
carefully considered the relevant factors set forth under R.C. 2929.11 and 2929.12.
The trial court stated that it considered the relevant recidivism factors and
extensively discussed the relevant seriousness factors, including Johnson’s use of a
firearm, the breadth of his juvenile record, and the harm caused to the victims.
Regarding the relevant mitigating factors, I would also note that while several
individuals stated during the sentencing hearing that Johnson had apologized and
demonstrated remorse, the record reflects that when given the opportunity to make
such statements himself during the sentencing hearing, Johnson stated, “I don’t got
nothing to say.” Under these circumstances, I am unable to conclude that Johnson’s
individual sentences were clearly and convincingly unsupported by the record.
Accordingly, I would overrule the second assignment of error, but
would vacate Johnson’s consecutive sentences and remand the case for resentencing
for the trial court to again consider whether consecutive sentences are appropriate
under R.C. 2929.14(C)(4) and, if so, to make the required findings on the record and
incorporate those findings in the sentencing journal entry in accordance with
Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, at syllabus. A de novo
resentencing hearing is not appropriate.
In many regards, this case perfectly illustrates the appellate dilemma
created by the Ohio Supreme Court’s apparent extension of the clear and convincing
standard set forth under R.C. 2953.08 to appellate review of a trial court’s
compliance with R.C. 2929.11 and 2929.12. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002,
59 N.E.3d 1231, at ¶ 23.
In this court’s en banc decision in State v. Jones, 2018-Ohio-498,
105
N.E.3d 702 (8th Dist.),5 I agreed with the majority’s determination that:
under State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59
N.E.3d 1231, the Ohio Supreme Court read R.C. 2929.11 and 2929.12
5 Jones has been accepted by the Ohio Supreme Court for review and held for
review of State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio-7570.
9/12/2019 Case Announcements,
153 Ohio St.3d 1474,
2018-Ohio-3637,
106 N.E.3d
1260. The issue in these two cases is whether R.C. 2953.08(G)(2) allows a court of appeals
to review the trial court’s findings made pursuant to R.C. 2929.11 and 2929.12.
into R.C. 2953.08(G)(2)(a), allowing an appellate court to increase,
reduce, or otherwise modify a sentence or vacate the sentence and
remand the matter to the sentencing court for re-sentencing if the
record does not support the sentencing court’s findings under R.C.
2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C), R.C. 2929.20(I), as
well as R.C. 2929.11 and 2929.12.
Id. at ¶ 5, 21. However, while I joined the majority based upon the clear language
used in Marcum at ¶ 23, I found portions of the dissent to be persuasive. In relevant
part, I agree that the more pressing issue is:
whether Marcum altered the appellate standard of review under R.C.
2953.08(G) to permit a more expansive appellate review process that
permits an appellate court to independently consider the sentencing
factors and independently determine the most effective way to comply
with R.C. 2929.11.
Jones at ¶ 44 (S. Gallagher, J., dissenting). At this time, it is my belief that Marcum
did not intend to disrupt the well-settled position of Ohio appellate courts that
reviewing courts are not entitled to substitute their judgment for that of the trial
court, nor are they entitled to independently weigh the sentencing factors set forth
under R.C. 2929.11 and 2929.12. It is therefore my position that, following
Marcum, this court has no basis to reverse a prison sentence imposed within the
applicable statutory range for the felony offense unless there is objective
information in the record that the trial court (1) failed to consider R.C. 2929.11 and
2929.12 in formulating the sentence, or (2) relied on demonstrably false or
inaccurate information when making said considerations. See State v. Whitaker,
8th Dist. Cuyahoga Nos. 107584 and 107967, 2019-Ohio-2823, ¶ 18 (finding by
clear and convincing evidence that the record did not support the imposed prison
term where the record indicated the trial court relied exclusively on the defendant’s
“prior convictions” in its consideration of the sentencing factors, but the record
objectively showed the defendant had no prior criminal convictions at the time of
the offenses or at the time of sentencing).
Nevertheless, without further guidance on this issue from the Ohio
Supreme Court, it is not surprising that appellate courts, including the lead opinion
and second separate opinion in this case, have adopted a more comprehensive
interpretation of Marcum in an effort to reverse felony sentences deemed by the
reviewing court to be excessive.
Following the release of Marcum, criminal appellants have routinely
argued on appeal that the prison term imposed by the trial court is not supported by
the record or is otherwise contrary to law. In resolving this issue, many appellate
courts have begun to independently scour the record in search of information that
clearly and convincingly does or does not support the trial court’s presumed R.C.
2929.11 and 2929.12 considerations. Unlike the objective application of the clearly
and convincing standard to the fact-finding statutes specifically referenced in R.C.
2953.08(G)(2)(a), the application of this standard of review to R.C. 2929.11 and
2929.12 is more ambiguous and empowers more subjective appellate review of
individual sentences. This is because trial courts are not required to make findings
or state the specific statutory factors in R.C. 2929.11 and 2929.12 on which the court
relied. Thus, the record is often silent on this issue and appellate courts are left to
review felony sentences without a complete understanding of how the trial court
balanced the competing sentencing factors. In my view, it necessarily follows that
in determining whether “by clear and convincing evidence the record does not
support the sentence,” appellate courts have begun to independently review the
entire record, while simultaneously assessing the presumed weight given, or as in
this case — not given, by the trial court to certain felony sentencing factors. As
previously discussed, however, this subjective and quasi-de novo approach has been
expressly forbidden by clear precedent of this court. Yet, the lead opinion and
second separate opinion apply an undoubtedly subjective approach in this case
anyway.
Inevitably, the contradictions involved in Marcum’s expansion of
R.C. 2953.08(G)(2)(a) will lead to inconsistent appellate decisions and, most
importantly, the inappropriate substitution of a trial court’s sentencing discretion.
Absent clear statutory instruction, or further judicial guidance, appellate courts will
continue to apply their best judgment when reviewing sentences imposed upon
consideration of R.C. 2929.11 and 2929.12. Unfortunately, I believe paragraph 23
of Marcum has merely created a standard of review that seemingly imitates the
famous “I know it when I see it” standard expressed by United States Supreme Court
Justice Potter Stewart. Jacobellis v. Ohio, 378 U.S. 184, 197,
84 S.Ct. 1676,
12
L.Ed.2d 793 (1964) (Stewart, J., concurring). I do not believe this is the standard
contemplated by R.C. 2953.08(G).
My comments are not intended to suggest that I always agree with the
sentencing discretion exercised by trial courts in this county, or that I necessarily
agree with the length of the prison terms imposed in this case. In some instances,
this court is presented with individual or aggregate sentences that could reasonably
be characterized as excessive. As stated, however, Ohio courts have routinely
characterized appellate review of felony sentencing is “extremely deferential” to the
sentencing court. See State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-
1529, ¶ 22; State v. Boyd, 2d Dist. Clark No. 2018-CA-68, 2019-Ohio-1902, ¶ 26;
State v. Robinson, 4th Dist. Meigs Nos. 18CA10 and 18CA17,
2019-Ohio-2155, ¶ 31;
State v. Payton, 5th Dist. Muskingum Nos. CT2017-0095 and CT2017-0096, 2018-
Ohio-3864, ¶ 22; State v. Thompson, 9th Dist. Wayne No. 15AP0016, 2016-Ohio-
4689, ¶ 45; State v. McKnight, 10th Dist. Franklin Nos. 17AP-778 and 17AP-780,
2018-Ohio-1916, ¶ 15; State v. Hurd, 11th Dist. Geauga No. 2018-G-0157, 2019-
Ohio-327, ¶ 18; State v. Blevings, 12th Dist. Warren No. CA2017-12-175, 2018-Ohio-
4382, ¶ 16. Thus, the purpose of our review is to ensure that the trial court has
complied with all applicable sentencing statutes, not to review the discretion utilized
by the court during its implementation of these statutes. The appellate division is
not a sentencing court.
It is my hope, however, that moving forward the trial court will
carefully consider and give equal weight to the new sentencing purpose of promoting
“effective rehabilitation.” It is evident that S.B. 66 was formulated in an effort to
reduce mass incarceration by rehabilitating individuals, expanding prison
alternative programs, and reducing aggregate prison terms. The amendment to R.C.
2929.11 is not inconsequential and sentences should start reflecting the legislature’s
comprehensive goals.
MARY J. BOYLE, J., CONCURRING IN PART AND DISSENTING IN PART:
Respectfully, I am compelled to write separately from both the lead
and concurring in part and dissenting in part opinions (“separate opinion”). I agree
with the lead and separate opinions on Johnson’s first and third assignments of
error. That is, I agree that the trial court failed to make the consecutive sentence
findings on the record at the sentencing hearing and failed to place those findings in
the judgment entry. I also agree that there is no evidence of judicial bias in this case.
But with respect to Johnson’s second assignment of error involving the principles
and purposes of felony sentencing in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12, I disagree with the lead opinion that the record
does not support the sentence; it is my view that it does. And although the separate
opinion would also overrule Johnson’s second assignment of error, I cannot agree
with the law or reasoning set forth in the separate opinion, and thus, I concur in
judgment only with the separate opinion.6
I. R.C. 2929.11 and 2929.12.
In his second assignment of error, Johnson argues that the trial
court failed to properly consider R.C. 2929.11 and 2929.12 when imposing his
6 This writer’s separate opinion will be referred to as the “third opinion.”
sentence. He argues that his 15-year sentence “went well beyond what was necessary
to protect the public and to punish and rehabilitate him.”
I agree with the lead opinion that an appellate court may review the
record to determine if it supports the trial court’s sentence under R.C. 2929.11 and
2929.12. I simply disagree with the lead opinion’s conclusion on this issue, however,
because it is my view that the record in this case clearly and convincingly supports
the sentence. While the separate opinion would also overrule Johnson’s second
assignment of error, I cannot agree with the law or reasoning set forth in the
separate opinion.
A. En Banc Proceedings
In Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2018-Ohio-
498, 105 N.E.3d 702, a majority of this court held en banc that we may review a
sentence that is within the statutory range for the offenses where the trial court
stated it considered R.C. 2929.11 and 2929.12. The en banc Jones decision further
explained our obligation under R.C. 2953.08(G)(2), stating:
[W]e are required to “review the record, including the findings
underlying the sentence or modification given by the sentencing court.”
And for the reasons discussed, our review includes the considerations
under R.C 2929.11 and the findings under 2929.12. Then, if after
reviewing those findings, we find that the sentence is contrary to law or
not supported by the record, we may take action.
Jones at ¶ 19.
I recognize that the Ohio Supreme Court has accepted Jones for
discretionary appeal and held it for its decision in Gwynne, 5th Dist. Delaware No.
16CAA120056, 2017-Ohio-7570, on the question of whether an appellate court may
review a trial court's findings under R.C. 2929.11 and 2929.12. But until the
Supreme Court overrules Jones, it is the settled law in this district that we are
required to follow. App.R. 26(A)(2)(b) (“The decision of the en banc court shall
become the decision of the court.”); see also In re J.J.,
111 Ohio St.3d 205, 2006-
Ohio-5484,
855 N.E.2d 851, 18 (“The Eighth District's conflicting rulings on the
same legal issue create confusion for lawyers and litigants and do not promote public
confidence in the judiciary. Appellate courts are duty-bound to resolve conflicts
within the district through en banc proceedings.”); McFadden v. Cleveland State
Univ.,
120 Ohio St.3d 54,
2008-Ohio-4914,
896 N.E.2d 672, 15 (“The issuance of
conflicting decisions from a court of appeals does not serve the fundamental purpose
for the operation of courts - the resolution of legal disputes.”).
The Ohio Supreme Court further explained in McFadden at ¶ 16:
“‘The principal utility of determinations by the courts of appeals in banc
is to enable the court to maintain its integrity as an institution by
making it possible for a majority of its judges always to control and
thereby to secure uniformity and continuity in its decisions, while
enabling the court at the same time to follow the efficient and timesaving procedure of having panels of three judges hear and decide the
vast majority of cases as to which no division exists within the court.’”
United States v. American-Foreign Steamship Corp. (1960), 363 U.S.
685, 689-690,
80 S.Ct. 1336,
4 L.Ed.2d 1491, quoting Maris, Hearing
and Rehearing Cases en banc (1954), 14 F.R.D. 91, 96. This form of
review promotes finality and predictability of the law within appellate
districts, which is especially important considering that the court of
appeals is the final stop in the legal process for many cases. See Textile
Mills [Sec. v. Commr. of Internal Revenue], 314 U.S. [326], 335, 62
S.Ct. 272,
86 L.Ed. 249 [1941].
Despite these well-settled en banc principles, the separate opinion
cites to Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543 (and others that
followed it), in support of its statement that the lead opinion was not permitted to
“contemplate[] the seriousness of Johnson’s conduct in light of the mitigating
factors” because appellate courts are not permitted to independently weigh
sentencing factors under R.C. 2929.11 and 2929.12. Ongert, however, was the
certified intradistrict conflict case in Jones and was therefore overruled by Jones.
See Jones at ¶ 1.
B. Sentencing Review Under R.C. 2953.08(G)(2)
Regarding our review of felony sentences, the separate opinion states:
Significantly, an “‘appellate court’s standard for review is not whether
the sentencing court abused its discretion.’ As a practical
consideration, this means that appellate courts are prohibited from
substituting their judgment for that of the trial judge.” State v. Venes,
2013-Ohio-1891,
992 N.E.2d 453, ¶ 20 (8th Dist.). “This is an
extremely deferential standard of review.” Id. at ¶ 21.
This writer has previously pointed out the deeply troubling
contradictions in this paragraph and in Venes. See State v. Roberts, 8th Dist.
Cuyahoga No. 104474, 2017-Ohio-9014, ¶ 34 - 41 (Boyle, J., dissenting). Indeed,
one would be hard pressed to find a more established legal principle in the state of
Ohio (or country for that matter) than that of the abuse-of-discretion review — that
it is an extremely deferential standard of review. When appellate courts are
reviewing for abuse of discretion, we are prohibited from substituting our judgment
for that of the trial judge. This writer does not need to cite cases for this well-
established black letter law.
R.C. 2953.08(G)(2) was enacted as part of Am.Sub.S.B. No. 2 in 1996.
The General Assembly amended R.C. 2953.08(G)(2) four years after it originally
enacted it to expressly add that our standard of review for felony sentences “is not
whether the sentencing court abused its discretion.” See Am.Sub.H.B. No. 331,
effective Oct. 10, 2000. When it did so, it unequivocally intended to make clear to
appellate judges across the state that our review is not extremely deferential.
Otherwise, the legislature would have mandated just the opposite — that our
standard for review is “whether the sentencing court abused its discretion.”
Before the legislature made wide-sweeping changes to Ohio’s felony
sentencing laws in S.B. 2, “sentencing decisions were generally subjected to an
abuse[-]of[-]discretion standard, and appellate courts rarely disturbed a sentence
imposed within statutory limits.” State v. Shryock, 1st Dist. Hamilton No. C-961111,
1997 Ohio App. LEXIS 3494, 5-6 (Aug. 1, 1997). A hallmark of S.B. 2, however,
was “meaningful appellate review” of felony sentencing as enacted in R.C.
2953.08(G)(2). State v. Comer,
99 Ohio St.3d 463,
2003-Ohio-4165,
793 N.E.2d
473, ¶ 10. The Ohio Supreme Court explained that “meaningful review” meant that
a reviewing court “hearing an appeal of a felony sentence may modify or vacate the
sentence and remand the matter to the trial court for resentencing if the court clearly
and convincingly finds that the record does not support the sentence or that the
sentence is otherwise contrary to law.”
Id., citing R.C. 2953.08; Griffin & Katz, Ohio
Felony Sentencing Law, Sections 9.19-9.20, at 791-796 (2002). As one
commentator explained it, “[T]he most significant aspect of the new sentencing law
was that trial courts no longer had unfettered discretion when sentencing
offenders.” Painter, Appellate Review Under the New Felony Sentencing
Guidelines: Where Do We Stand?, 47 Cleve.St.L.Rev. 533, 537-538 (1999)
(“Painter”).
Thus, I cannot agree with the separate opinion, referring to R.C.
2929.11 and 2929.12, that “[a] trial court’s general statement that it considered the
required statutory factors, without more, is sufficient to fulfill its obligations under
the sentencing statutes.” A trial court’s obligation under these statutes is more than
to just mechanically say that it considered them. Although a trial court does not
have to make findings under R.C. 2929.11 and 2929.12, the trial court must actually
consider these statutes and apply them to the facts of each case.
Further, I disagree with the separate opinion that Marcum, 146 Ohio
St.3d 516,
2016-Ohio-1002,
59 N.E.2d 1231, altered or expanded the appellate
standard of review under R.C. 2953.08(G)(2) when it said at ¶ 23:
We note that some sentences do not require the findings that R.C.
2953.08(G) specifically addresses. Nevertheless, it is fully consistent
for appellate courts to review those sentences that are imposed solely
after consideration of the factors in R.C. 2929.11 and 2929.12 under a
standard that is equally deferential to the sentencing court. That is, an
appellate court may vacate or modify any sentence that is not clearly
and convincingly contrary to law only if the appellate court finds by
clear and convincing evidence that the record does not support the
sentence.
Instead, it is my view that the Ohio Supreme Court in Marcum was
once again trying to remind appellate courts that when reviewing felony sentences,
we have an obligation to ensure that a sentence is not clearly and convincingly
contrary to law under R.C. 2929.11 and 2929.12 as well as the statutes that require
explicit findings of fact. That means that appellate courts must independently
review the record to determine if the trial court, after considering the seriousness
and recidivism factors in R.C. 2929.12, imposed a sentence that is (1) “reasonably
calculated to achieve” the three overriding purposes of felony sentencing, (2)
“commensurate with and not demeaning to the seriousness of the offender’s conduct
and its impact upon the victim,” and (3) “consistent with sentences imposed for
similar crimes committed by similar offenders.” R.C. 2929.11. If an appellate court
cannot look at the record to determine whether the sentence satisfies these
parameters, can we ever meaningfully review a sentence?
The separate opinion also states that “Marcum’s expansion of R.C.
2953.08(G)(2)(a) will lead to inconsistent appellate decisions.” First, as I stated,
Marcum did not expand sentencing review. But also, it is my view that if appellate
courts diligently performed their duty when reviewing felony sentences, then
offenders in Ohio would not have to hold their breath at arraignment while waiting
to see if they drew the “judicial short straw.”
S.B. 2 was enacted, in part, because “there was a notion that offenders
received disparate sentences for the same crime in different sections of the state.”
Painter at 537. We know that is certainly true in Cuyahoga County. Under S.B. 2,
however, appellate review was “intended to ensure that offenders [were] sentenced
consistently.” Painter at 538. Thus, if we actively reviewed felony sentences, there
would be more consistency in sentencing, not less. As I previously stated:
I believe that there is a troubling trend occurring throughout appellate
courts in this state that will, if not [reined] in by the Ohio Supreme
Court, essentially eliminate meaningful review of felony sentences. As
one appellate judge stated, “‘appellate review of sentencing is under
assault.’” State v. Beverly, 2d Dist. Clark No. 2015-CA-71, 2016-Ohio-
8078, ¶ 42, 75 N.E.3d 847 (Donovan, J., dissenting), quoting More
Than a Formality: The Case for Meaningful Substantive Reasonable
Review, 127 Harv.L.Rev. 951, 951 (2014). I could not agree more with
the dissenting judge in Beverly that “[t]his assault is unjustified and
contrary to legislative intent when we look at the legislative history of
S.B. 2 and H.B. 86.” Id.
Roberts, 8th Dist. Cuyahoga No. 104474,
2017-Ohio-9014, at ¶ 22.7
If all an appellate court is required to do is make sure that a sentence
is within the statutory limits set by the legislature and make sure that the trial court
states that it considered R.C. 2929.11 and 2929.12, then we effectively have no
review at all. R.C. 2953.08(G)(2) mandates that appellate courts consider the
record. But if appellate courts cannot consider whether the record comports with
R.C. 2929.11 and 2929.12, then the record — and our review — is meaningless.
7 This does not mean, however, that Johnson’s argument that his sentence was
contrary to law because his codefendant received a lesser sentence has merit. See State
v. Blackley, 8th Dist. Cuyahoga No. 100574, 2014-Ohio-3140, ¶ 15 (“There is a statutory
mandate for consistency in sentencing, however, consistency does not require that
identical sentences be imposed for co-defendants.”). This is because “‘[a]lthough the
offenses may be similar, distinguishing factors may justify dissimilar treatment.’” State
v. Torres, 8th Dist. Cuyahoga No. 99595,
2013-Ohio-5030, ¶ 82, quoting State v.
Dawson, 8th Dist. Cuyahoga No. 86417,
2006-Ohio-1083.
With this review in mind and looking at the record in this case, I do
not agree with the lead opinion that it does not support the sentence. Johnson and
two codefendants went to Johnson’s aunt’s home to retrieve a gun that they believed
they were “entitled to.” Johnson and the codefendants robbed Johnson’s aunt and
her son at gunpoint. Johnson’s aunt and her son were home. The aunt spoke at the
sentencing hearing. She explained that it was “the worst thing” she ever
experienced. She stated that she “had to step in front of [her] son” because she did
not want him to get shot. She grabbed her son, held him, and prayed. She could not
imagine “burying one of [her] kids.” The aunt further explained that she was
thankful that her daughter was not home when it happened. At the time of the
offense, Johnson was on probation for felonious assault.
In mitigation, Johnson’s attorney explained that Johnson was only
20 years old and that he turned himself in to police. Johnson also sent text messages
to the victims after he robbed them to apologize, telling them “it wasn’t supposed to
happen like that.” Johnson’s defense counsel also explained that Johnson witnessed
his father abuse his mother for many years. Johnson told the court that he did not
have anything to say.
The trial court explained that Johnson had “violent criminal history,”
including riot, disorderly conduct, assault, attempted assault, breaking and
entering, resisting, aggravated menacing, and several counts of criminal trespass.
According to the presentence investigation report, Johnson was a
“moderate” risk to reoffend. The trial court informed Johnson that it
intended to “remove [him] from society for as long as [it] could.” The
trial court stated that Johnson was “a monster” and told Johnson, “You
frankly scare me. Your behavior is inappropriate throughout this case.”
The judge further stated that this was a “serious felony of the first
degree offense that was committed while [Johnson was] on community
control” for felonious assault in another case.
Therefore, it is my view that this record support the trial court’s
sentence under R.C. 2929.11 and 2929.12, and I would overrule Johnson’s second
assignment of error.
