[Cite as State v. Smith,
2022-Ohio-4428.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1122
Appellee Trial Court No. CR0202001931
v.
Robert Witcher Smith DECISION AND JUDGMENT
Appellant Decided: December 9, 2022
…
Julia R. Bates, Lucas Count Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
…
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, convicting appellant, Robert Witcher Smith, following a guilty plea to one count of
attempt to commit felonious assault in violation of R.C. 2923.02 and 2903.11(A)(1) and
(D), a felony of the third degree, and one count of aggravated riot in violation of R.C.
2917.02(A)(2) and (C), a felony of the fourth degree, and sentencing him to a 30-month
prison term. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On August 12, 2020, the Lucas County Grand Jury returned a three-count
indictment against appellant, charging him with one count of attempt to commit felonious
assault in violation of R.C. 2923.02 and 2903.11(A)(1) and (D), a felony of the third
degree, one count of abduction in violation of R.C. 2905.02(A)(2) and (C), a felony of the
third degree, and one count of aggravated riot in violation of R.C. 2917.02(A)(2) and (C),
a felony of the fourth degree. The charges stemmed from appellant’s involvement in a
group that beat and assaulted the victim. After watching the assault for a moment,
appellant attempted to kick the victim in the head, but narrowly missed. A few moments
later, after several members of the group had left, another individual approached and then
shot and killed the victim while appellant was present.
{¶ 3} On April 6, 2021, appellant withdrew his initial plea of not guilty, and
pleaded guilty to the counts of attempted felonious assault and aggravated riot. The
sentencing hearing was held on May 20, 2021. At the sentencing hearing, appellant’s
trial counsel stated that appellant had substance abuse issues and was high at the time of
the attempted assault. Counsel also offered that appellant got caught up in the “mob
2.
mentality” and made a tragic decision in the heat of the moment. But, counsel
emphasized that appellant had no part in the shooting of the victim.
{¶ 4} Prior to imposing the sentence, the trial court confirmed that appellant had
13 prior misdemeanor convictions and one felony conviction as an adult. On the felony
conviction for carrying a concealed weapon, appellant was sentenced to community
control, which was then extended for one year, and ultimately terminated unsuccessfully.
Turning to the present charges, the court noted that no motivation was given for why the
group assaulted the victim. The court then commented that perhaps if appellant and the
group had not assaulted the victim, then the victim would not have been shot. The court
told appellant that it was “more than legally plausible that you could have been indicted
as a codefendant in the homicide.” Thereafter, the trial court ordered the counts of
attempted felonious assault and aggravated riot to merge, and the state elected to proceed
to sentencing on the count of attempted felonious assault. The trial court ordered
appellant to serve a 30-month prison term, to be served consecutively to a 17-month
prison term arising from a separate, unrelated case.
II. Assignment of Error
{¶ 5} Appellant has timely appealed his judgment of conviction,1 and now asserts
one assignment of error for our review:
1
On July 28, 2021, this court remanded the matter to the trial court, finding that the
judgment of conviction was not a final, appealable order because it failed to specify the
recipient of a $6,000 restitution award. On April 21, 2022, the trial court entered a
corrected judgment entry. The issue of restitution is not raised by the parties on appeal.
3.
1. The Trial Court abused its discretion when it sentenced Appellant
as though he was a participant in the homicide rather than sentencing him
based upon what Appellant entered a plea to.
III. Analysis
{¶ 6} We review the imposition of a felony sentence in accordance with R.C.
2953.08. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 16.
R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise
modify a sentence 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.
{¶ 7} In this case, appellant argues that his sentence is contrary to law under R.C.
2953.08(G)(2)(b) because the trial court improperly considered appellant’s presence at
the scene when the victim was shot, and thus his potential culpability in the victim’s
death. Appellant argues that the trial court should have only considered appellant’s
conduct in attempting to kick the victim in the head, which appellant argues weighs in
favor of mitigation under R.C. 2929.12(C)(4) (“The sentencing court shall consider all of
the following that apply regarding the offender, the offense, or the victim, and any other
4.
relevant factors, as indicating that the offender’s conduct is less serious than conduct
normally constituting the offense: … (4) There are substantial grounds to mitigate the
offender’s conduct, although the grounds are not enough to constitute a defense.”).
Notably, appellant did not allege any facts outside of the trial court’s consideration of
R.C. 2929.11 and 2929.12 as the basis for his assigned error.
{¶ 8} Appellant’s argument amounts to a contention that the trial court did not
properly consider and weigh the seriousness and recidivism factors in R.C. 2929.12, and
thus the trial court’s imposition of a 30-month prison sentence was contrary to law under
R.C. 2953.08(G)(2)(b). In State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169
N.E.3d 649, ¶ 39, 42, the Ohio Supreme Court foreclosed this argument, holding that
“R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an appellate court to
modify or vacate a sentence based on its view that the sentence is not supported by the
record under R.C. 2929.11 and 2929.12,” and “Nothing in R.C. 2953.08(G)(2) permits an
appellate court to independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best reflects compliance
with R.C. 2929.11 and 2929.12.” We subsequently recognized that appeals based solely
on an alleged error in the trial court’s consideration of R.C. 2929.11 and 2929.12 are
“subject to summary resolution as a matter of law.” State v. Bowles,
2021-Ohio-4401,
5.
181 N.E.3d 1226, ¶ 9 (6th Dist.), citing State v. Toles,
166 Ohio St.3d 397, 2021-Ohio-
3531,
186 N.E.3d 784.2
{¶ 9} Here, appellant argues that the trial court improperly weighed his presence at
the time of the shooting as warranting a more serious sentence under R.C. 2929.12(B)(2).
Whether the court’s finding under R.C. 2929.12(B)(2) is supported by the record is not
subject to appellate review pursuant to R.C. 2953.08(G)(2). Jones at ¶ 42. Therefore, we
find appellant’s assignment of error not well-taken.
IV. Conclusion
{¶ 10} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Lucas County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
2
In State v. Bryant, Slip Opinion No. 2020-0599, 2022-Ohio-1878, the Ohio Supreme
Court held that felony sentences remain subject to review if the appellant alleges that the
trial court considered factors outside of those enumerated in R.C. 2929.11 and 2929.12
when determining his or her sentence. Bryant is inapplicable in light of appellant’s
argument here.
6.
State of Ohio
v. Robert Witcher Smith
L-21-1122
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
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, 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/.
7.
