State v. Hess

[Cite as State v. Hess, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                            No. 109603
                 v.                             :

TRAVIS HESS,                                    :

                 Defendant-Appellant.           :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 4, 2021


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-19-646311-A


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kevin Bringman, Assistant Prosecuting
                 Attorney, for appellee.

                 Judith M. Kowalski, for appellant.


KATHLEEN ANN KEOUGH, J.:

                Defendant-appellant, Travis Hess, appeals his convictions. Finding no

merit to the appeal, we affirm.

                 In December 2019, Hess was named in a two-count indictment,

charging him with one count of domestic violence, a felony of the fourth degree, and
endangering children, a first-degree misdemeanor. On the day of trial and after

extensive conversation with counsel, Hess pleaded guilty to the indictment. In late

February 2020, the trial court sentenced him to the maximum penalty of 18 months

on the domestic violence charge, and credit for time served on the endangering

children offense.

            Hess now appeals, raising two assignments of error.

I.   Cruel and Unusual Punishment

             Hess raises as his first assignment of error:

      The Coronavirus Pandemic is having a disproportionate and
      catastrophic impact on the prison population and as such denying
      release to [Hess] violates the constitutional prohibition on cruel and
      unusual punishment.

            Hess’s claimed error does not present any issue that was raised in or

contemplated by the trial court. It is well settled that a party cannot raise new

arguments and legal issues for the first time on appeal, and that failure to raise an

issue before the trial court waives that issue for appellate purposes. Miller v.

Cardinal Care Mgmt., 8th Dist. Cuyahoga No. 107730, 

, citing

Cleveland Town Ctr. L.L.C. v. Fin. Exchange Co. of Ohio, Inc., 

, 

 (8th Dist.) (appellate courts “will not consider a question not presented,

considered, or decided by a lower court”); State v. Henderson, 8th Dist. Cuyahoga

No. 95655, 

 (constitutional arguments are generally not

considered for the first time on appeal).

             We recognize that at the time of Hess’s sentencing, the coronavirus

outbreak, now referred to as COVID-19, was not as widespread and had not evolved
into the catastrophic pandemic that it has now become. However, the information

that Hess relies on in support of his assignment of error regarding the coronavirus

pandemic and its impact on the prison population is information contained outside

of the record. It is well settled that appellate courts cannot decide appeals based on

information presented in a brief for the first time on appeal. See, e.g., State v.

Ishmail, 

, 

 (1978), paragraph one of the syllabus.

Accordingly, Hess’s arguments are better suited in a motion for postconviction relief

or for judicial release.1

             Finally, insofar as Hess is challenging the risks imposed with his

continued confinement, “‘state prisoners challenging the conditions of their

confinement have an adequate legal remedy by way of an action under Section 1983,

Title 42, U.S. Code.’” Waites v. Gansheimer, 

, 

,

, ¶ 6, quoting Douglas v. Money, 

, 

 (1999), citing State ex rel. Carter v. Schotten, 

, 

 (1994) (Waites alleged that the warden had failed to provide reasonable

medical care for his various medical conditions and that this deliberate indifference

constituted cruel and unusual punishment).

              Based on the foregoing, Hess’s first assignment of error is overruled.




       1We take judicial notice that during the pendency of this appeal, the trial court has
denied Hess’s motions to mitigate and participate in ODRC’s transitional control
program. The trial court has also denied his motion for reconsideration of these prior
denials. Hess has not appealed any of these orders.
II. Maximum Sentence

             In his second assignment of error, Hess contends that the trial court

“abused its discretion” in imposing the maximum penalty of 18 months’

incarceration for domestic violence, a felony of the fourth degree.

              When reviewing felony sentences, this court no longer applies an

abuse of discretion standard. We review felony sentences under the standard set

forth in R.C. 2953.08(G)(2). State v. Marcum, 

, 

,

, ¶ 1, 21. R.C. 2953.08(G)(2) provides that when reviewing felony

sentences, the appellate “shall review the record, including the findings underlying

the sentence … given by the sentencing court” and that it “may increase, reduce,

or otherwise modify a sentence … or may vacate the sentence and remand the

matter to the sentencing court for resentencing” if it “clearly and convincingly finds”

that (1) “the record does not support the sentencing court’s findings” under

particular statutory provisions that do not apply here or (2) “the sentence is

otherwise contrary to law.”

             If the sentence is within the statutory range for the offense, and the

court considers both the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12, a

trial court’s imposition of a any prison term, even a maximum prison term, for a

felony conviction is not contrary to law. State v. Woodard, 8th Dist. Cuyahoga No.

106300, 

; see also State v. Clay, 8th Dist. Cuyahoga No.
108500, 

, citing State v. Pawlak, 8th Dist. Cuyahoga No.

103444, 

.

              Pursuant to R.C. 2929.11, a sentence imposed for a felony shall be

“reasonably calculated” to achieve “three overriding purposes of felony sentencing”

— (1) to protect the public from future crime by the offender and others, (2) to

punish the offender and (3) to promote the effective rehabilitation of 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) and (B). In addition, the sentence imposed “shall be commensurate

with and not demeaning to 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.” R.C. 2929.11(B).

              The sentencing court must also consider the seriousness and

recidivism factors set forth in R.C. 2929.12 in determining the most effective way to

comply with the purposes and principles of sentencing set forth in R.C. 2929.11.

State v. Hodges, 8th Dist. Cuyahoga No. 99511, 

. R.C. 2929.12

provides a nonexhaustive 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.

              R.C. 2929.11 and 2929.12 are not fact-finding statutes and thus, the

trial court is not required to use particular language or make specific findings on the
record regarding its consideration of those factors. State v. Wilson, 

, 

, 

.

                Applying the foregoing, this court has “refused to find that a sentence

is contrary to law when the sentence is in the permissible range and the court’s

journal entry states that it ‘considered all required factors of the law’ and ‘finds that

prison is consistent with the purposes of R.C. 2929.11.’” State v. Williams, 8th Dist.

Cuyahoga No. 100042, 

, quoting State v. May, 8th Dist.

Cuyahoga No. 99064, 

.

                In this case, Hess concedes that his 18-month maximum sentence is

not contrary to law because it is within the statutory range for a fourth-degree felony.

See R.C. 2929.14(A)(4). Rather, Hess contends that his sentence is excessive, and it

does not comport with the purposes and principles of felony sentencing pursuant to

R.C. 2929.11 and the factors of R.C. 2929.12 because it was imposed for a first-time

felony, he was remorseful, and was seeking help to address his underlying issues

with alcohol.

                Our review of the record demonstrates that the trial court stated

during sentencing that it considered all the relevant seriousness and recidivism

factors, the need to protect the public from future crime, and the need to impose

punishment. The court also stated in its journal entry that “it considered all the

required factors of law [and] that prison is consistent with the purpose of R.C.

2929.11.”   Additionally, the trial court carefully explained its considerations,

including why the maximum sentence was appropriate, by highlighting Hess’s two
prior domestic violence convictions, and that the victim sustained visible injuries

after Hess repeatedly punched her in the face. The court further heard that he

committed the assault while heavily intoxicated and while the victim held their six-

month-old child.

              Based on the foregoing, we find that Hess has failed to demonstrate

that his sentence is clearly and convincingly not supported by the record. His second

assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant 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. The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR