[Cite as State v. White,
2021-Ohio-154.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
MICHAEL WHITE : Case No. 20 CAA 04 0022
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
19CRI090636
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 21, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL WILLIAM T. CRAMER
Delaware County Prosecutor 470 Olde Worthington Road, Suite 200
Westerville, Ohio 43082
By: JOEL C. WALKER
Assistant Prosecuting Attorney
145 N. Union Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 20 CAA 04 0022 2
Baldwin, J.
{¶1} Defendant-appellant Michael White appeals the sentence imposed by the
Delaware County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In July of 2019, a trooper attempted to make a traffic stop after observing a
vehicle that had no rear license plate make an illegal turn. The vehicle, which was driven
by appellant, failed to stop for a stop sign and ran a red light. The vehicle began
speeding, reaching speeds up to 112 miles per hour, and failed to stop at a red light and
drove through a yard to turn around before entering back onto a state route. The vehicle
then drove into a soybean field where the driver turned off the lights and escaped.
{¶3} The Delaware County Grand Jury, on September 19, 2019, indicted
appellant on one count of failure to comply with order or signal of police officer in violation
of R.C. 2921.331(B), a felony of the third degree. At his arraignment on September 27,
2019, appellant entered a plea of not guilty.
{¶4} Subsequently, appellant withdrew his not guilty plea and entered a plea of
guilty to the indictment. The parties jointly recommended a nine month prison sentence.
As memorialized in a Judgment Entry filed on March 30, 2020, appellant was sentenced
to thirty-six (36) 36 months in prison and his driver’s license was suspended for a period
of seven (7) years. The trial court ordered that the prison term be served consecutively to
any other prison term.
{¶5} Appellant now appeals, raising the following assignment of error on appeal:
{¶6} “I. BY CLEAR AND CONVINCING EVIDENCE, THE RECORD DOES NOT
SUPPORT THE IMPOSITION OF A MAXIMUM TERM OF IMPRISONMENT.”
Delaware County, Case No. 20 CAA 04 0022 3
I
{¶7} Appellant, in his sole assignment of error, challenges his maximum
sentence. He argues that by clear and convincing evidence, the record does not support
a maximum sentence. We disagree.
{¶8} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002,
59 N.E.3d 1231, ¶
22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015–Ohio–4049,
2015 WL
5722820, ¶ 31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly find
either the record does not support the sentencing court's findings under R.C. 2929.13(B)
or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to
law. 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 the record does not support the sentence.
Marcum, supra, at ¶ 23.
{¶9} Clear and convincing evidence is that evidence “which will provide 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. “Where the degree of proof required to sustain an issue must be clear
and convincing, a reviewing court will examine the record to determine whether the trier
of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at
477,
120 N.E.2d 118.
{¶10} R.C. 2929.11(A) governs the purposes and principles of felony sentencing
and provides a sentence imposed for a felony shall be reasonably calculated to achieve
Delaware County, Case No. 20 CAA 04 0022 4
the two overriding purposes of felony sentencing, which are (1) to protect the public from
future crime by the offender and others, and (2) to punish the offender using the minimum
sanctions that the court determines will accomplish those purposes. Further, 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 by similar offenders.” R.C. 2929.11(B).
{¶11} R.C. 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a
non-exhaustive list of factors a trial court must consider when determining the
seriousness of the offense and the likelihood that the offender will commit future offenses.
{¶12} Appellant, in the case sub judice, was convicted of one count of failure to
comply with order or signal of police officer in violation of R.C. 2921.331(B), a felony of
the third degree. Appellant was sentenced within the statutory range for a felony of the
third degree.
{¶13} Appellant specifically argues that the record does not support the imposition
of a maximum term of imprisonment. Appellant contends that he did not cause any
discernable harm, accepted responsibility for his actions, pled guilty to the indictment,
and that the parties jointly recommended a nine-month sentence.
{¶14} We note that a trial court is not bound to follow a sentence that has been
jointly recommended by the parties. See State, ex rel. Duran v. Kelsey, 106 Ohio St.3d
58,
2005-Ohio-3674,
831 N.E.2d 430, ¶6. Clearly, in the case at bar the trial court
acknowledged the joint recommendation and chose not to follow it.
Delaware County, Case No. 20 CAA 04 0022 5
{¶15} At the sentencing hearing, there was evidence that appellant had an
extensive history of criminal convictions and had pending felony charges in federal court.
The trial court noted that the pre-sentence investigation report indicated that appellant
had several active warrants from other places including Pennsylvania, Alabama, Georgia,
Summit County, Ohio, Virginia and North Carolina. At the hearing, appellant admitted that
he did not stop for the police. The trial court also noted that appellant had a juvenile arrest
at age 14 for stealing a car. The trial court further stated, in relevant part, as follows:
{¶16} “On his adult criminal record, I see a felony theft charge in Summit County
with a warrant issued. I see a misdemeanor conviction for grand larceny in New York
State in 2007. I see a felony grand larceny conviction in that state too. I see another
grand larceny conviction in New York with a prison term imposed. I see also from New
York a misdemeanor false report of a crime and leaving the scene of an accident. Again
in New York I see a theft misdemeanor conviction. From Indiana I see a felony burglary
conviction with a prison term imposed. I see a New Jersey prison term imposed for a
felony criminal mischief offense, that involved a foot pursuit with officers. I see in Alabama
a prison term imposed for a felony burglary offense. I see in Georgia a felony burglary
conviction. I see an unresolved burglary charge in Pennsylvania from 2018. I see an
unresolved burglary charge in Wisconsin. I see an unresolved burglary charge, another
one from Pennsylvania. I see another one from Pennsylvania with a warrant issued, that
one involved fleeing too and driving away causing a high speed chase. And the report
notes that similar investigations are underway in New Hampshire, Connecticut too for
burglary offenses”.
{¶17} Transcript of March 27, 2020 hearing at 8-9.
Delaware County, Case No. 20 CAA 04 0022 6
{¶18} The trial court also noted that appellant had no previous employment during
his life. The trial court, in sentencing appellant, stated, in relevant part, as follows:
“I’ve looked at the recidivism and seriousness factors that apply in a
felony case. Factors that suggest recidivism is more likely include the past
history of criminal convictions and a failure to respond favorably in the past
to some earlier sanctions.
“The computerized risk assessment tool put Mr. White in the
moderate risk category for likelihood of reoffending.”
Transcript of March 27, 2020 hearing at 10.
{¶19} In its Judgment Entry, the trial court found that appellant had a history of
criminal convictions and had served prior prison terms.
{¶20} We find that the trial court considered the recidivism and seriousness
factors in sentencing appellant. Appellant had an extensive criminal history and failed to
respond in the past to earlier sanctions. At the time of the sentencing, appellant was
wanted in numerous jurisdictions and was under active federal prosecution. We find that
the imposition of the maximum sentence on appellant was supported by clear and
convincing evidence
{¶21} Appellant’s sole assignment of error is, therefore, overruled.
Delaware County, Case No. 20 CAA 04 0022 7
{¶22} Accordingly, the judgment of the Delaware County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.
