[Cite as State v. Mayle,
2023-Ohio-684.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
TODD D. MAYLE : Case No. CT2022-0034
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2021-0647
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 6, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WALSH HARRY R. REINHART
Prosecuting Attorney Reinhart Law Office
Muskingum County, Ohio One Americana, Suite 301
400 South Fifth Street
By: JOHN CONNOR DEVER Columbus, Ohio 43215
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0034 2
Baldwin, J.
{¶1} Todd Mayle appeals the decision of the Muskingum County Court of
Common Pleas imposing a sentence of seven to ten and one-half years in prison for a
violation of R.C. 4511.19(A)(1)(a), OVI, an unspecified misdemeanor, and R.C.
2903.08(A)(1)(a), Aggravated Vehicular Assault, a felony of the second degree. The State
of Ohio is Appellee.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Mayle entered a no-contest plea to a reduced number of charges and was
sentenced to prison for seven to ten and one-half years. He contends the prosecutor
violated his constitutional rights by making comments at sentencing that were irrelevant,
unverified and focused upon the alleged bad character of his family, but he expressly
concedes that he “does not contend that the punishment is not within the statutory limits
nor does he complain that the trial court did not have the discretion to impose any
sentence permitted under the statutory scheme.” (Appellant’s Brief, page 14).
{¶3} Mayle allegedly caused an automobile accident and serious injury to his
passenger that resulted in his indictment for violation of R.C. 4511.19(A)(l)(a), OVI, and
R.C. 2903.08 as well as charges for driving under suspension. After discussions with
Appellee, he entered a no-contest plea to one count of a violation of R.C. 4511.19(A)(1)(a)
and unclassified misdemeanor with a forfeiture specification under R.C. 2941.1417 and
one count of Aggravated Vehicular Assault, a second degree felony and a violation of
2903.08(A)(1)(a). The trial court noted that it considered “the principles and purposes of
sentencing under Ohio Revised Code § 2929.11 and its balance of seriousness and
recidivism factors under Ohio Revised Code § 2929.12” and found that Mayle “has a prior
Muskingum County, Case No. CT2022-0034 3
felony conviction, a lengthy misdemeanor record, and caused serious harm to the victim
in this matter who still suffers from her injuries.” (Entry, May 11, 2022, p. 2). The trial court
imposed a sentence of six months of local incarceration and a mandatory fine of $850.00
for the OVI and a minimum mandatory prison term of seven years and an indefinite prison
term of ten and one-half years for the Aggravated Vehicular Assault running concurrently.
{¶4} During the sentencing hearing the trial court reviewed Mayle’s criminal
record:
• 2009 felony convictions for carrying a concealed weapon, possession of
cocaine, and possession of Xanax. (Transcript, Sentencing Hearing, p. 10, lines
18-22).
• Misdemeanor falsification in April 2022; an OVI and speeding in November
2021; an OVI, driving under suspension, and an assault in 2019; a fleeing and
alluding, willful and wanton disregard for safety other persons or property and
resisting arrest in 2013; an OVI from 2012; a criminal trespass, aggravated
menacing, disorderly conduct, and falsification in 2010; two counts of aggravated
menacing in 2009; a disorderly conduct by indecent language, leaving the scene
of an accident, and failure to control in 2008. (Transcript, Sentencing Hearing, p.
10, line 23 to p. 11, line 10).
• The injury to the victim of Mayle’s Aggravated Vehicular Assault.
(Transcript, Sentencing Hearing, p. 11, line 23 to p. 12, line 5).
{¶5} Counsel for both parties presented argument to the trial court regarding the
appropriate penalty and, during this argument, counsel for Appellee made remarks that
Mayle interprets as follows:
Muskingum County, Case No. CT2022-0034 4
• Mayle and his brothers "grew up on Baker Street". (Transcript, Sentencing
Hearing, p. 6, line 21).
• Mayle and his brothers were known for "selling drugs, having weapons" and
participating in the "biggest open-air drug mart in Zanesville". (Transcript,
Sentencing Hearing, p. 7, lines 1-7).
• That "there has been at least three shootings in the last three years" at the
Pine Street Dairy Mart; (Transcript, Sentencing Hearing, p. 7, lines 1-7).
• That drug dealers view women as commodities "to be used and discarded"
and that was what happened here. (Transcript, Sentencing Hearing, p. 7, lines 8-
11).
{¶6} Mayle did not object to the comments, but did refute them: “We do dispute
some of the statements that were just put on the record by the prosecutor. Mr. Mayle
indicates that he did not grow up in the area where Mr. Litle indicated and also disputes
the statements regarding narcotics as well as the shooting, actually states that he
rendered assistance to the victim of that shooting.” (Transcript, Sentencing Hearing, p. 8,
lines 13-19).
{¶7} Mayle contends that these comments violated his right to due process as
they were unverified and irrelevant and sought a more serious sentence based upon the
alleged character of Mayle’s family. He argues the statements were inappropriate both
because they were not relevant to the charges before the court, he was not linked to those
events, and the references were designed to impugn his character.
{¶8} Mayle also argues that the reference to “Baker Street” and “Pine Street
Dairy” are code words that “inject language that triggers racial stereotypes and other
Muskingum County, Case No. CT2022-0034 5
negative associations without the stigma of explicit racism.” (Appellant’s Brief, p. 12).
Mayle concludes that “using those same racial stereotypes to obtain a more severe
sentence in front of a judge is just as unacceptable” and that “the prosecutor's improper
argument in this case so infected the sentencing that it denied him due process.”
(Appellant’s Brief, pages 13-14) and that he must be resentenced.
{¶9} Appellee rejects Mayle’s assertions and contends that there was no
reference to race at the sentencing hearing and that the Appellee was expressing
opposition to the drug trade. Appellee’s justification for the reference to Baker Street and
the Pine Street Dairy Mart is not clear, but we interpret it as an attempt to draw some type
of analogy between the injury caused by Mayle and the alleged general disregard of drug
dealers for women. Mayle was not charged or sentenced for an offense that involved
drugs or shooting, but Appellee contends that “his past conduct conforms to the type of
criminal activity the prosecutor was associating to Baker Street, the Pine Street Dairy
Mart, and the world of drug dealing.” (Appellee’s Brief, p. 4).
STANDARD OF REVIEW
{¶10} 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). 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. CT2022-0034 6
{¶11} "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.
{¶12} 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.
ANALYSIS
{¶13} Mayle concedes that the sentence is within the statutory range and we find
that the record reflects that the trial court considered the principles and purposes of R.C.
2929.11, as well as the factors listed in R.C. 2929.12, and properly imposed post release
control, so those issues need not be considered. Our analysis will be restricted to whether
the prosecutor’s comments violated Mayle’s right to due process at sentencing.
{¶14} “It is well-settled that the court may, in the sentencing process, consider
information which would have been inadmissible at trial.” State v. Cassidy (1984), 21 Ohio
App.3d 100, 101,
487 N.E.2d 322, citing State v. Davis (1978),
56 Ohio St.2d 51,
381
N.E.2d 641. Indeed, the trial court not only is permitted, but is “mandated, to consider the
circumstances of the offense.”
Id. at 102,
381 N.E.2d 641.
Muskingum County, Case No. CT2022-0034 7
{¶15} The trial court’s discretion at sentencing is not unlimited and a sentence
within the limits of sentencing laws may violate due process if the sentencing proceedings
are fundamentally unfair. Townsend v. Burke (1948), 334 U.S. 736, 741,
68 S.Ct. 1252,
1255,
92 L.Ed. 1690, 1693; see, also, Gardner v. Florida (1977),
430 U.S. 349, 358,
97
S.Ct. 1197, 1205,
51 L.Ed.2d 393, 402 (“[t]he defendant has a legitimate interest in the
character of the procedure which leads *218 to the imposition of sentence even if he may
have no right to object to a particular result of the sentencing process”), citing
Witherspoon v. Illinois (1968),
391 U.S. 510, 521–523,
88 S.Ct. 1770, 1776–1778,
20
L.Ed.2d 776, 784–786 as quoted in State v. Arnett,
88 Ohio St.3d 208, 217–18,
724
N.E.2d 793, 801 (2000).
{¶16} An Appellate court may vacate sentences as violative of due process when
the record reveals that the trial court imposed or enhanced the offender's sentence
because of improper considerations such as the offender's race or national origin, United
States v. Borrero–Isaza (C.A.9, 1989), 887 F.2d 1349, false or unreliable information,
United States v. Safirstein (C.A.9, 1987),
827 F.2d 1380, or parochialism, United States
v. Diamond (C.A.4, 1977),
561 F.2d 557, 559.
Arnett, supra at 218.
{¶17} In this case we find that the Appellee’s counsel made comments during the
sentencing hearing that included facts that were neither relevant to the offense or to
Mayle’s criminal history. Mayle was charged with an OVI offense and Aggravated
Vehicular Assault. The prosecutor’s attempt to create an analogy between these offenses
and shooting, drug dealing, misogyny or geographical areas that are burdened with crime
that might be associated with race is improper, unjustifiable and objectionable. The
prosecutor had ample material from Mayle’s criminal record and the circumstances
Muskingum County, Case No. CT2022-0034 8
surrounding the offense to convey the state’s position regarding a just sentence of Mayle.
Invoking the specter of race, crime in which Mayle was not involved and allegations of
misogynistic behavior was unnecessary and undermines respect for the justice system.
{¶18} While we find the prosecutor’s comments improper, Mayle has offered no
evidence to demonstrate that those comments had any impact on this sentence. The trial
court did not include the allegations mentioned by the prosecutor in its analysis and
nothing in the record affirmatively demonstrates that the trial court was moved by those
comments. “[T]his court will presume that a trial court considered only the relevant,
material, and competent evidence in arriving at its judgment, unless the contrary
affirmatively appears from the record.” State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-
6658,
780 N.E.2d 186, ¶ 131 as quoted in State v. Ford,
158 Ohio St.3d 139, 2019-Ohio-
4539,
140 N.E.3d 616. We find the trial court had ample evidence in the record to support
its sentence and the record contains nothing that supports a conclusion that the improper
comments of the prosecutor had any impact. Appellant offers only a conclusion that the
comments were improper and does not direct us to any evidence to support that the trial
court relied upon those comments to imposed a sentence.
{¶19} After reviewing the record we find that the sentence imposed by the trial
court is not clearly and convincingly unsupported by the record and neither is it otherwise
contrary to law.
{¶20} Mayle’s assignment of error is overruled.
Muskingum County, Case No. CT2022-0034 9
{¶21} The decision of the Muskingum County Court of Common Pleas is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.
