[Cite as State v. Hicks,
2021-Ohio-2437.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1198
Appellee Trial Court No. CR0202001870
v.
Leonard Hicks, Jr. DECISION AND JUDGMENT
Appellant Decided: July 16, 2021
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Grant Kozy, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
…
PIETRYKOWSKI, J.
{¶ 1} Appellant, Leonard J. Hicks, Jr., appeals the judgment entered by the Lucas
County Court of Common Pleas on November 16, 2020, sentencing him to a term of 24
months in prison.
Statement of the Case and Facts
{¶ 2} On July 29, 2020, appellant was indicted on a charge of domestic violence,
in violation of R.C. 2919.25(A) and (D)(1), a felony of the third degree. According to
Toledo police reports, on April 13, 2020, at approximately 1:30 a.m., Toledo police
responded to a call for menacing. The victim told police that she and appellant, her live-
in boyfriend, were arguing inside of their residence. The verbal argument escalated, and
appellant struck her with a closed fist in her left eye. The victim also told police that
appellant strangled her twice, and that she was unable to breathe and thought she was
going to die. She further reported that appellant took her cell phone and prevented her
from calling 911. Officers observed that the victim’s left eye was swollen, and that she
had bruises on her chin, throat, chest, and arms. Appellant reported that he had been
drinking with friends, and that his drink was spiked with the drug ecstasy. He stated that
he was babysitting the victim’s children, when she came home and an argument ensued
between them. Appellant stated that he destroyed some property in the house, and then
passed out. When he awoke, he found himself choking the victim.
{¶ 3} On August 25, 2020, appellant entered a plea of not guilty, and the trial court
set a trial date for October 19, 2020. On October 19, 2020, the trial court continued the
case for trial on November 2, 2020. During the interim period, the state and appellant
negotiated a plea agreement, and, on October 30, 2020, appellant entered a plea of guilty
to the indictment, with a recommendation by the state for a sentencing cap of eighteen-
months in prison. After explaining to appellant that the court did not have to accept the
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state’s sentencing recommendation and that appellant could face as many as 36 months in
prison on the offense, in addition to a period of three years of post-release control, the
trial court accepted the guilty plea, ordered a pre-sentence investigation, and scheduled
sentencing for November 16, 2020.
{¶ 4} At sentencing, the trial court did not accept the state’s recommended
sentencing cap, and instead sentenced appellant to 24 months in prison. Prior to
sentencing, appellant’s trial attorney offered the following in mitigation:
Mr. Hicks did take responsibility for his actions. … [The
Correctional Treatment Facility] has a domestic violence program that will
benefit him. … He does have a long record, but it’s mainly
misdemeanors and I think this would be his third adult felony.
Appellant stated on his own behalf:
I just want to apologize to [the victim] and her kids, to my family, to
myself. I just wish I could take that night back and I could ask you to just
give me a chance. It’s not who I want to be. I’m not going to be that
person. I ask you to be lenient.
{¶ 5} The trial court stated that it reviewed the presentence investigation report,
noting appellant’s five prior domestic violence convictions, his five prior protection order
convictions, the numerous times he had been placed on probation, and his prior
engagement in domestic violence related programming. The court stated, “It doesn’t
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seem to have worked[;] [t]here is a lifetime of three felonies not including what we have
today and 36 misdemeanors, 35 of which are on the defendant’s adult record.”
{¶ 6} The court relevantly stated that it had considered the principles and purposes
of sentencing under R.C. 2929.11 and had balanced the seriousness, recidivism and other
relevant factors under R.C. 2929.12.
{¶ 7} Appellant timely appealed and presents the following assignment of error:
Appellant’s sentence should be vacated due to the Trial Court’s
failure to comply with the principles and purposes of sentencing pursuant to
R.C. 2929.11 and R.C. 2929.12.
Law and Argument
{¶ 8} In his sole assignment of error, appellant argues that his sentence is contrary
to law because the trial court did not properly consider the purposes of felony sentencing
under R.C. 2929.11 or appropriately weigh the seriousness and recidivism factors under
R.C. 2929.12 when it decided his sentence.
{¶ 9} This court, in State v. Buck, 6th Dist. Wood No. WD-20-03, 2021-Ohio-
1073, recently set forth the law governing this court’s review of felony sentences, as
follows:
We review felony sentences under R.C. 2953.08(G)(2). State v.
Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. In State v.
Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15, we
recognized that a sentence is not clearly and convincingly contrary to law
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for purposes of R.C. 2953.08(G)(2)(b) where the trial court has considered
the purposes and principles of sentencing in R.C. 2929.11 and the
seriousness and recidivism factors listed in R.C. 2929.12, properly applied
postrelease control, and sentenced the defendant within the statutorily-
permissible range. The burden is on the appellant to identify clear and
convincing evidence in the record that their sentence was erroneously
imposed. State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434,
¶ 6.
Importantly, however, the Ohio Supreme Court has made clear that
“neither R.C. 2929.11 nor 2929.12 requires a trial court to make any
specific factual findings on the record.” State v. Jones, ––– N.E.3d ––––,
Slip Opinion No. 2020-Ohio-6729, ¶ 20. In fact, the trial court's
consideration of the factors set forth in R.C. 2929.11 and 2929.12 is
presumed even on a silent record. State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423,
108 N.E.3d 1 (2017); State v. Cyrus,
63 Ohio St.3d 164,
166,
586 N.E.2d 94, 95 (1992). An appellate court may not independently
weigh the evidence and substitute its judgment for that of the trial court
regarding the appropriate sentence under R.C. 2929.11 and 2929.12, nor
may it modify or vacate a sentence under R.C. 2953.08(G)(2)(b) based on
the lack of support in the record for the trial court's findings under those
statutes. Jones at ¶ 39, 41-42.
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Id. at ¶ 6-7.
{¶ 10} Here, appellant argues that he has “shown by clear and convincing
evidence that he is amenable to placement at [the Correctional Treatment Facility] rather
than prison” and that the trial court “failed to comply with the purposes and principles of
sentencing and failed to properly weigh the mitigating factors.” Specifically, he claims
that the trial court failed to consider his expression of remorse and his request that the
trial court “help him get his life together through addiction treatment and mental health
treatment.” Appellant argues that had the trial court properly weighed the seriousness
and recidivism factors in R.C. 2929.12, it would have determined that a term of
community control, with orders to continue his addiction treatment, mental health
treatment, and domestic violence education, was the appropriate sentence. Appellant
further argues that the sentence he proposes would be the “best way to protect the public
from future crime by Appellant, to punish Appellant and to promote effective
rehabilitation,” and would also be “cheaper for state and local resources than a prison
sentence.” Thus, appellant suggests, the sentence that he proposes would better achieve
the purposes and principles of sentencing under R.C. 2929.11 than does the sentence that
was imposed by the trial court.
{¶ 11} In essence, appellant is requesting this court to make an independent
determination as to whether the record supports his sentence under R.C. 2929.11 and
2929.12. But, as the Supreme Court of Ohio made clear in Jones, R.C. 2953.08(G)(2)
does not permit an appellate court to “independently weigh the evidence in the record and
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substitute its judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.” Jones at ¶ 42. Because we cannot second-
guess the trial court’s application of R.C. 2929.11 and 2929.12, appellant’s assignment of
error is found not well-taken.
{¶ 12} Accordingly, we affirm the judgment of the Lucas County Court of
Common pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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