[Cite as State v. Williams,
2023-Ohio-1883.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. CT2022-0060
KURT E. WILLIAMS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2022-0206
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 7, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
RONALD L. WELCH RICHARD D. HIXON
Prosecuting Attorney 3808 James Court, Suite 2
Muskingum County, Ohio Zanesville, OH 43701
By:
JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0060 2
Gwin, P.J.
{¶1} Defendant-appellant Kurt E. Williams [“Williams”] appeals his sentence after
a negotiated plea of guilty in the Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶2} Williams was indicted on one count of receiving stolen property, a motor
vehicle identification license plate as listed in R.C. 2913.71(A), a felony of the fifth degree
in violation of R.C. 2913.51(A).
{¶3} The trial court held a plea hearing on July 11, 2022. The Criminal Rule 11(C)
and (F) plea form signed by Williams was filed on that same date. During the plea
hearing, Williams admitted that he was currently on post-release control. Plea T. at 5.
Williams pled guilty to the sole count of the Indictment. The trial court deferred sentencing
pending the completion of a pre-sentence investigation report.
{¶4} The trial court conducted a sentencing hearing on August 15, 2022. The
trial court noted that at the time of the offense in this case, Williams was on post-release
control in Washington County for Escape, a felony of the third degree. Sent. T. at 5. The
trial court further noted that Williams had been incarcerated in the past for Aggravated
Burglary. Id. Williams further had been convicted of felony drug possession and OVI.
The trial court noted that Williams has a lengthy misdemeanor record which includes “six
or seven” OVI offenses and domestic violence.
Id. The trial court sentenced Williams to
eleven months.
Assignments of Error
{¶5} Williams raises two Assignments of Error,
Muskingum County, Case No. CT2022-0060 3
{¶6} “I. THE TRIAL COURT'S SENTENCE WAS CONTRARY TO LAW, AS IT
WAS IMPOSED WITHOUT ADEQUATELY CONSIDERING THE PURPOSES OF
FELONY SENTENCING UNDER OHIO REVISED CODE SECTION 2929.11 OR THE
SERIOUSNESS OF CRIME AND RECIDIVISM FACTORS UNDER OHIO REVISED
CODE SECTION 2929.12.
{¶7} “II. THE TRIAL COURT'S SENTENCE WAS IN VIOLATION OF
DEFENDANT/APPELLANT'S EIGHTH AMENDMENT RIGHTS.”
I.
{¶8} In his First Assignment of Error, Williams argues that the trial judge’s
sentence fails to consider the factors contained in R.C. 2929.11 and R.C. 2929.12.
Standard of Appellate Review
{¶9} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to
review the entire trial-court record, including any oral or written statements and
presentence-investigation reports. R.C. 2953.08(F)(1) through (4).
{¶10} 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, ¶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 that 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.
See, also, State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.2d 659, ¶28.
Muskingum County, Case No. CT2022-0060 4
Our standard of review is de novo. State v. Gwynne,
158 Ohio St.3d 279, 2019-Ohio-
4761,
141 N.E.3d 169, ¶ 27.
{¶11} Although a court imposing a felony sentence must consider the purposes of
felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,
“neither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual
findings on the record.” State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d
649, at ¶ 20, citing State v. Wilson,
129 Ohio St.3d 214,
2011-Ohio-2669,
951 N.E.2d
381, ¶ 31, and State v. Arnett,
88 Ohio St.3d 208, 215,
724 N.E.2d 793 (2000). R.C.
2953.08(G)(2)(b) 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. State v. Jones,
163 Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d
649, ¶39. The Ohio Supreme Court further elucidated in State v. Toles,
166 Ohio St.3d
397,
2021-Ohio-3531,
186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended, precludes
second-guessing a sentence imposed by the trial court based on its weighing of the
considerations in R.C. 2929.11 and 2929.12.”
Issue for Appellate Review: Whether Williams’s sentence was imposed based
on impermissible considerations—i.e., considerations that fall outside those that are
contained in R.C. 2929.11 and 2929.12
R.C. 2929.13(B)
{¶12} R.C. 2929.13(B) applies to one convicted of a fourth-or fifth-degree felony.
Williams pled guilty to a felony of the fifth degree. In relevant part the statute provides,
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth or fifth
Muskingum County, Case No. CT2022-0060 5
degree that is not an offense of violence or that is a qualifying assault
offense, the court shall sentence the offender to a community control
sanction or combination of community control sanctions if all of the following
apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the court
with the names of, contact information for, and program details of one or
more community control sanctions that are available for persons sentenced
by the court.
{¶13} R.C. 2929.13(B)(1) further provides,
(b) The court has discretion to impose a prison term upon an offender
who is convicted of or pleads guilty to a felony of the fourth or fifth degree
that is not an offense of violence or that is a qualifying assault offense if any
of the following apply:
(i) The offender committed the offense while having a firearm on or
about the offender’s person or under the offender’s control.
(ii) If the offense is a qualifying assault offense, the offender caused
serious physical harm to another person while committing the offense, and,
Muskingum County, Case No. CT2022-0060 6
if the offense is not a qualifying assault offense, the offender caused
physical harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by
the court.
(iv) The court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, and the department,
within the forty-five-day period specified in that division, did not provide the
court with the name of, contact information for, and program details of any
community control sanction that is available for persons sentenced by the
court.
(v) The offense is a sex offense that is a fourth- or fifth-degree felony
violation of any provision of Chapter 2907. of the Revised Code.
(vi) In committing the offense, the offender attempted to cause or
made an actual threat of physical harm to a person with a deadly weapon.
(vii) In committing the offense, the offender attempted to cause or
made an actual threat of physical harm to a person, and the offender
previously was convicted of an offense that caused physical harm to a
person.
(viii) The offender held a public office or position of trust, and the
offense related to that office or position; the offender’s position obliged the
offender to prevent the offense or to bring those committing it to justice; or
the offender’s professional reputation or position facilitated the offense or
was likely to influence the future conduct of others.
Muskingum County, Case No. CT2022-0060 7
(ix) The offender committed the offense for hire or as part of an
organized criminal activity.
(x) The offender at the time of the offense was serving, or the
offender previously had served, a prison term.
(xi) The offender committed the offense while under a community
control sanction, while on probation, or while released from custody on a
bond or personal recognizance.
{¶14} In the case at bar, the trial court found that Williams was on post-release
control for Escape, a felony of the third degree at the time of the present offense. The
trial court further found that Williams had previously served a prison sentence for
aggravated burglary. In addition, the record reveals that the trial court found that Williams
had violated Condition #8 of his bond by testing positive for drugs on July 11, 2022. See,
Judgment Entry Revoking Bond, filed July 12, 2022. [Docket Entry No. 21].
{¶15} Accordingly, the court had discretion to impose a prison term for the fifth-
degree felony. An abuse of discretion can be found where the reasons given by the court
for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or
where the judgment reaches an end or purpose not justified by reason and the evidence.
Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship
of S.H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,
5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54. The trial court’s reasoning is
not legally incorrect or untenable and the decision does not reach an end or purpose not
justified by reason and the evidence. The decision to impose a prison sentence does not
amount to a denial of justice.
Muskingum County, Case No. CT2022-0060 8
R.C. 2929.11
{¶16} R.C. 2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve 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. In
order to achieve these purposes and principles, the trial court must consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both. R.C. 2929.11(A). Additionally, the sentence must be commensurate with, and
not demeaning to, the seriousness of the offender’s conduct and its impact on the victims
and consistent with sentences imposed for similar crimes by similar offenders.” R.C.
2929.11(B).
R.C. 2929.12
{¶17} R.C. 2929.12 is a guidance statute that sets forth the seriousness and
recidivism criteria that a trial court “shall consider” in fashioning a felony sentence.
Subsections (B) and (C) establish the factors indicating whether the offender’s conduct is
more serious or less serious than conduct normally constituting the offense. These
factors include the physical or mental injury suffered by the victim due to the age of the
victim; the physical, psychological, or economic harm suffered by the victim; whether the
offender’s relationship with the victim facilitated the offense; the defendant’s prior criminal
record; whether the defendant was under a court sanction at the time of the offense;
whether the defendant shows any remorse; and any other relevant factors. R.C.
Muskingum County, Case No. CT2022-0060 9
2929.12(B). The court must also consider any factors indicating the offender’s conduct
is less serious than conduct normally constituting the offense, including any mitigating
factors. R.C. 2929.12(C). Subsections (D) and (E) contain the factors bearing on whether
the offender is likely or not likely to commit future crimes.
{¶18} In State v. Bowser the Court observed,
[I]t is well established in Ohio law that the court may consider
information beyond that strictly related to the conviction offense. For
example, the statute governing the contents of a PSI report simply says,
“[T]he officer making the report shall inquire into the circumstances of the
offense and the criminal record, social history, and present condition of the
defendant.” R.C. 2951.03(A). The statutory directive no doubt results in the
sentencing court considering evidence that would be inadmissible at trial,
State v. Davis (1978), 56 Ohio St.2d 51,
10 O.O.3d 87, 381 N.E.2d 641—
like hearsay—and results in the court considering evidence entirely
unrelated to the conviction offense. See Gregg v. United States (1969), 394
U.S. 489, 492,
89 S.Ct. 1134,
22 L.Ed.2d 442. So, the court may consider
the offender’s prior arrests, even if none yields prosecution. Burton at 23,
6 O.O.3d 84,
368 N.E.2d 297 (“it is well-established that a sentencing court
may weigh such factors as arrests for other crimes”). The court may also
consider facts that support a charge of which the offender is ultimately
acquitted. State v. Wiles (1991), 59 Ohio St.3d 71, 78,
571 N.E.2d 97,
quoting United States v. Donelson (C.A.D.C.1982), 695 F.2d 583, 590 (“‘It
is well established that a sentencing judge may take into account facts
Muskingum County, Case No. CT2022-0060 10
introduced at trial relating to other charges, even ones of which the
defendant has been acquitted’”).
The court may even consider mere allegations of crimes for which
the offender is never prosecuted. State v. Cooey (1989), 46 Ohio St.3d 20,
35,
544 N.E.2d 895 (allegations of uncharged criminal conduct found in a
PSI report may be considered as part of the offender’s social history).
186 Ohio App.3d 162, 2010–Ohio–951,
926 N.E.2d 714(2nd Dist.), ¶ 15. Accord, State
v. Riggleman, 5th Dist. Licking No. 14-CA-17,
2014-Ohio-5369, ¶16-17.
{¶19} We conclude that the trial court did not commit error when it sentenced
Williams. Upon review, we find that the trial court’s sentencing on the charge complies
with applicable rules and sentencing statutes. While Williams may disagree with the
weight given to these factors by the trial judge, Williams’s sentence was within the
applicable statutory range and therefore, we have no basis for concluding that it is
contrary to law. R.C. 2953.08(G)(2)(b) 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. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729,
169 N.E.3d 649, ¶39. Williams has not shown that the trial court imposed the
sentence based on impermissible considerations—i.e., considerations that fall outside
those that are contained in R.C. 2929.11 and R.C. 2929.12.
{¶20} Williams’s First Assignment of Error is overruled.
II.
{¶21} In his Second Assignment of Error, Williams argues the imposition of a
prison sentence rather than a community control sanction violates the constitutional
Muskingum County, Case No. CT2022-0060 11
prohibitions against cruel and unusual punishment set forth in the United States and Ohio
Constitutions. Specifically, Williams claims the sentence is grossly disproportionate to
the crime of receiving a stolen license plate.
Cruel and Unusual Punishment
{¶22} The Eighth Amendment to the United States Constitution prohibits
excessive sanctions by the government. It provides as follows: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
See, also, Section 9, Article I of the Ohio Constitution.
{¶23} It is well-established that sentences do not violate these constitutional
provisions against cruel and unusual punishment unless the sentences are so grossly
disproportionate to the offenses as to shock the sense of justice in the community. See
State v. Chaffin, 30 Ohio St.2d 13,
282 N.E.2d 46 (1972). As a general rule, a sentence
that falls within the terms of a valid statute cannot amount to a cruel and unusual
punishment. State v. Stevens, 5th Dist. Stark No. 2017CA00024,
2017-Ohio-8692, ¶ 10,
quoting McDougle v. Maxwell,
1 Ohio St.2d 68, 69,
203 N.E.2d 334 (1964).
{¶24} Proportionality analysis under the Eighth Amendment should be guided by
objective criteria, including (i) the gravity of the offense and the harshness of the penalty;
(ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the
sentences imposed for commission of the same crime in other jurisdictions. State v.
Morin, 5th Dist. Fairfield No. 2008-CA-10, 2008-Ohio-6707, ¶ 69, citing Solem v. Helm,
463 U.S. 277, 290–292,
103 S.Ct. 3001,
77 L.Ed.2d 637 (1983).
{¶25} “[P]unishments which are prohibited by the Eighth Amendment are limited
to torture or other barbarous punishments, degrading punishments unknown at common
Muskingum County, Case No. CT2022-0060 12
law, and punishments which are so disproportionate to the offense as to shock the moral
sense of the community.” McDougle v. Maxwell, 1 Ohio St.2d 68, 69,
203 N.E.2d 334
(1964).
{¶26} Williams has not contrasted his individual sentence or his prison term with
any Ohio, out-of-state, or federal cases. Given that the trial court is not obligated to refer
to every factor listed in R.C. 2929.12 as part of its sentencing analysis, “the defendant
has the burden to affirmatively show that the court did not consider the applicable
sentencing criteria or that the sentence imposed is ‘strikingly inconsistent’ with the
applicable sentencing factors.” State v. Hull, 11th Dist. Lake No. 2016-L-035, 77 N.E.3d
484,
2017-Ohio-157, ¶8. As we noted in our disposition of Williams’s First Assignment of
Error, the trial court was authorized by R.C. 2929.13(B)(1) to impose a prison sentence
in this case.
{¶27} Williams has failed in his burden to show the eleven-month sentence
imposed on him is grossly disproportionate to the respective offense so as to shock the
moral sense of the community. We find Williams has not demonstrated his sentence
constitutes cruel and unusual punishment under the United States and Ohio
Constitutions.
{¶28} Williams’s Second Assignment of Error is overruled.
Muskingum County, Case No. CT2022-0060 13
{¶29} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Wise, J., and
King, J., concur
[Cite as State v. Williams, 2023-Ohio-1883.]
