[Cite as State v. Allison,
2021-Ohio-3024.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 20 CAA 10 0044
:
LINWOOD E. ALLISON, JR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Case No. 19CR-I-05-
0366
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 1, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MELISSA A. SCHIFFEL EMMA M. MIRLES-JONES
Delaware County Prosecutor Mirles-Jones Law Office
175 S. Sandusky St. #375
HAWKEN FLANAGAN Delaware, OH 43015
Assistant Prosecuting Attorney
145 N. Union St., 3rd Floor
Delaware, OH 43015
[Cite as State v. Allison, 2021-Ohio-3024.]
Delaney, J.
{¶1} Defendant-Appellant Linwood E. Allison, Jr. appeals the September 22,
2020 judgment entry of the Delaware County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
Conviction for Theft, a Fifth-Degree Felony
{¶2} On May 31, 2019, the Delaware County Grand Jury indicted Defendant-
Appellant Linwood E. Allison, Jr. on one count of Theft, a fifth-degree felony in violation
of R.C. 2913.02(A)(1). He originally entered a plea of not guilty to the charge, but on
August 4, 2020, Allison changed his plea to guilty. At the change of plea hearing, Allison
stated that on November 7, 2018, he walked into Wireless Vision, a T-Mobile retail
location, and took a new iPhone without permission. The trial court accepted his plea,
ordered a presentence investigation, and scheduled a sentencing hearing for September
21, 2020.
Sentencing Hearing
{¶3} At the commencement of the sentencing hearing held on September 21,
2020, the State informed the trial court that pursuant to the plea agreement, the parties
stipulated to restitution as determined in the presentence investigation report to be
$1,200. The State also agreed to not make any specific recommendations and deferred
to the trial court for sentencing.
{¶4} Allison requested the trial court impose community control. He
acknowledged his long criminal history but indicated most of his crimes were nonviolent.
He informed the trial court that he was heading into a better place in his personal life
because two months prior to the sentencing hearing, he started a mental health treatment
[Cite as State v. Allison, 2021-Ohio-3024.]
program. The Community for New Direction diagnosed Allison with PTSD and depression
and prescribed medication. The program assisted Allison getting his Social Security card
and enrolling in barber school. He had family support as well, including his fiancé and
their infant, and Allison’s sister.
{¶5} The trial court reviewed Allison’s criminal history as stated in the
presentence investigation report. Allison had juvenile delinquency adjudications,
including disorderly conduct, trespassing, and receiving stolen property. The trial court
next reviewed his adult criminal record:
I see convictions for felonious assault with a prison term imposed, that
involved firing several shots and hitting the victim in some internal organs.
I see carrying concealed weapons; possessing marijuana; disorderly
conduct; domestic violence; theft; a felony theft with a prison term imposed;
falsification; possession of drug paraphernalia; theft; aggravated theft
involving stealing cell phones; theft with a prison term imposed involving
stealing some electronic devices; theft involving taking an Apple MacBook
from an Apple store; possession of marijuana; theft; larceny with a warrant
issued for taking a watch from a display case; theft; aggravated menacing;
aggravated menacing; obstructing official business; and then unresolved
charges for theft in Franklin County, and for domestic violence and
menacing in Franklin County. Plus these reported convictions for larceny in
Michigan and for theft in Tennessee; some of these offenses committed
when Mr. Allison was out on bail in this case. I see on the traffic record
[Cite as State v. Allison, 2021-Ohio-3024.]
seven convictions for driving under suspension. I see some unsuccessful
terminations from past community control periods.
(T. 19-20).
{¶6} The trial court considered the recidivism and seriousness factors. “Factors
that suggest recidivism is more likely to include the fact that Mr. Allison was under felony
court supervision when this offense was committed, and there’s a history of juvenile
delinquency and adult criminal activity, and there’s been some failure in the past to
respond favorably to earlier sanctions.” (T. 20-21). Allison’s act of theft was more serious
because it caused serious economic harm, but it was also less serious because there
was no physical harm to another person. (T. 21). The computerized risk assessment tool
put Allison in the high-risk category for likelihood of reoffending. (T. 21).
{¶7} The trial court then sentenced Allison to a prison term of ten months with
19 days of jail time credit. The trial court found Allison was prison eligible because he
served prior prison terms before committing the theft offense. (T. 21). The trial court
authorized Allison for a risk reduction sentence pursuant to R.C. 5120.036.
{¶8} The trial court memorialized its judgment via a Sentencing Entry filed on
September 22, 2020.
{¶9} It is from this judgment that Allison now appeals.
ASSIGNMENT OF ERROR
{¶10} Allison raises one Assignment of Error:
{¶11} “THE COURT ABUSED ITS DISCRETION IN SENTENCING THE
DEFENDANT TO A TERM OF 10 MONTHS IN PRISON WHICH IS A LONGER THAN
[Cite as State v. Allison, 2021-Ohio-3024.]
NECESSARY SENTENCE UNDER R.C. 2953.08 WHERE A TERM OF COMMUNITY
CONTROL WAS AN OPTION FOR A NON-VIOLENT CRIME.”
ANALYSIS
{¶12} Allison seeks appellate review of his sentence to ten months in prison
pursuant to R.C. 2953.08(G)(2). He argues the trial court erred when it sentenced him to
prison rather than community control, when the State did not oppose community control
and he showed his was actively addressing the issues that contributed to his propensity
to criminal behavior.
{¶13} The theft offense in this case was a felony of the fifth degree and not an
offense of violence. The trial court, however, was not required to sentence Allison to a
term of community control pursuant to R.C. 2929.13(B)(1) because Allison had previously
served a prison term. R.C. 2929.13(B)(1)(b)(ix).
{¶14} R.C. 2953.08 governs appeals based on felony sentencing guidelines.
Subsection (G)(2) sets forth this Court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
[Cite as State v. Allison, 2021-Ohio-3024.]
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶15} “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.
{¶16} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-
03-026, 2019-Ohio-4209, ¶ 36.
{¶17} Here, Allison does not argue that his sentence is contrary to law, and we
find that his sentence is within the statutory range for a fifth-degree felony. R.C.
2929.14(A)(5). This Court is therefore without authority to disturb Allison’s sentence
[Cite as State v. Allison, 2021-Ohio-3024.]
absent a finding by clear and convincing evidence that the record does not support the
trial court’s findings under R.C. 2929.11 and 2929.12.
{¶18} In the instant case, the trial court was not required to sentence Allison to
community control and the trial court was within its discretion to impose a prison term.
The trial court heard arguments from Allison’s counsel and considered the presentence
investigation report. A review of the record shows the clear and convincing evidence
supports the trial court’s findings under R.C. 2929.11 and 2929.12.
{¶19} Allison’s sole Assignment of Error is overruled.
CONCLUSION
{¶20} The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, John, J., concur.
