State v. Johnson

[Cite as State v. Johnson, 

.]
                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :

                 v.                                 :        No. 113151

MYRON JOHNSON,                                      :

                 Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 15, 2024


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-23-677883-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Maalaea Newell, Assistant Prosecuting
                 Attorney, for appellee.

                 Joseph V. Pagano, for appellant.


ANITA LASTER MAYS, J.:

        {¶1} Defendant-appellant Myron Johnson (“Johnson”) appeals his sentence

and asks this court to vacate his sentence and remand to the trial court for

resentencing. We affirm Johnson’s sentence.
      {¶2} Johnson pleaded guilty, in an amended indictment, to two counts of

felonious assault, second-degree felonies, in violation of R.C. 2903.11(A)(2). The

trial court sentenced Johnson to two years’ imprisonment for each count to be

served concurrently to each other for a total of two years in prison. In accordance

with the Reagan Tokes Law, the trial court advised Johnson that if the Ohio

Department of Rehabilitation and Correction, after a hearing, makes

determinations regarding Johnson’s conduct in prison, he could serve up to an

additional year in prison.

I.    Facts and Procedural History

      {¶3} On November 9, 2022, Johnson arrived at a tire shop and demanded

that an employee provide Johnson with the name and address of a previous

employee. When the employee did not comply, Johnson pulled out a gun and

pointed it at her and threatened to shoot. Another employee asked Johnson to

leave the tire shop, and Johnson pointed the gun at him. Surveillance footage

captured the incident. The police were called. Johnson was charged with two

counts of felonious assault with 0ne- and three-year firearm specifications.

      {¶4} At the time of the incident, Johnson suffered from schizophrenia,

diagnosed in 2017 and was not taking his medication. However, after Johnson’s

sanity was evaluated by the court’s psychiatric clinic, he was found to be sane at

the time of the incident. In accordance with a plea agreement with the State,
Johnson pleaded to the two counts of felonious assault and the gun specifications

were nolled.

      {¶5} On August 22, 2023, Johnson’s case proceeded to sentencing.

According to the journal entry, “the court considered all required factors of the

law” and found “that prison is consistent with the purpose of R.C. 2929.11.”

Journal Entry No. 156112967 (Aug. 22, 2023). The trial court imposed a prison

sentence of two years. Johnson appealed his sentence, assigning one error for

our review:

      Appellant’s prison sentence is contrary to law under Ohio’s sentencing
      statutes and violates his rights to due process and to a fair sentence
      because it failed to properly weigh and consider mitigating factors and
      the statutory factors set forth in R.C. 2929.11 and 2929.12 and
      improperly imposed indefinite sentences on both felony convictions.


II.   Standard of Review

      {¶6} We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 

. Under R.C.

2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and

remand a challenged felony sentence if the court clearly and convincingly finds

either that the record does not support the sentencing court’s findings as required

by relevant sentencing statutes or the sentence is otherwise contrary to law. A

sentence is contrary to law if it falls outside the statutory range for the offense or if

the sentencing court failed to consider the purposes and principles of sentencing
set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v.

Pawlak, 

 (8th Dist.). Conversely, if the sentence is within

the statutory range for the offense and the trial court considered both the purposes

and principles of felony sentencing in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12, the court’s imposition of any prison term for a

felony conviction is not contrary to law. State v. Woodard, 

(8th Dist.); see also State v. Clay, 

 (8th Dist.), citing 

.

III.   Law and Analysis

       {¶7} In Johnson’s sole assignment of error he argues that his sentence is

contrary to law because (1) the trial court did not consider the statutory sentencing

factors pursuant to R.C. 2929.12(B)(4), (2) it imposes a sentence greater than

necessary to accomplish the overriding purposes of sentencing pursuant to R.C.

2929.11, and (3) it imposes indefinite sentences on each conviction when the trial

court found both convictions were qualifying felonies.

       A.    R.C. 2929.11 and 2929.12

       {¶8} R.C. 2929.12(B)(4) states:

       The sentencing court shall consider all of the following that apply
       regarding the offender, the offense, or the victim, and any other
       relevant factors, as indicating that the offender’s conduct is more
       serious than conduct normally constituting the offense: The offender’s
       occupation, elected office, or profession obliged the offender to
       prevent the offense or bring others committing it to justice.
[Cite as State v. Johnson, 

.]
        {¶9} In the appellant’s brief, he does not provide an argument in support of

this issue. However, the appellant does argue that R.C. 2929.12(B)(2) is the only

factor that applies in this case. The appellant argues that because of his mental

illness, he did not intend to harm anyone, and the trial court should consider his

mental illness for the purposes of imposing an appropriate sentence.

        {¶10} “R.C. 2929.11 addresses the purposes of felony sentencing while R.C.

2929.12 addresses the factors that a trial court should take into account when

imposing a sentence pursuant to R.C. 2929.11.” State v. Pettigrew, 2023-Ohio-

3877, ¶ 11 (8th Dist.), citing State v. Jones, 

. “Neither of

these sections require a trial court to make any specific factual findings on the

record.” 

 citing id. at ¶ 20, citing State v. Wilson, 

. “The

court’s consideration of the factors is presumed unless the defendant affirmatively

shows otherwise.” 

 citing State v. Wright, 

 (8th Dist.).

“The ‘court’s statement in its sentencing journal entry that it considered the

required statutory factors is alone sufficient to fulfill its obligations under R.C.

2929.11 and 2929.12.’” 

 quoting 

        {¶11} The trial court’s journal entry indicates that it “considered all required

factors of the law” and found that prison was “consistent with the purpose of R.C.

2929.11.” Further, during sentencing, the trial court advised:

        So I want you to know, Mr. Johnson, that in imposing the following
        sentences, first of all, I’m taking into account everything that the
        prosecutor said, that your lawyer said, and that you said. . . . Second,
        obviously, I’ve watched the video. I’m taking that into account. Third,
      the following written information: the presentence report dated
      August 17 and completed by Investigator Dorothy Davis. I’ve reviewed
      the June 26th three-page reintegration plan completed by the social
      worker, Ariel Irwin-Peel, of Ms. Dobroshi’s office. I’ve considered the
      August 14, 2022 seven-page report of Michael Aronoff of the court
      clinic. And I’ve rereviewed the April 17 competency report and the
      July 6th sanity evaluation. Additionally, I’m taking into account the
      sentencing guidelines in Chapter 2929 of the Ohio Revised Code.

Tr. 44-45.

      {¶12} Based on the trial court’s statements and the record before us, we are

persuaded that the trial court was aware of all the mitigation evidence presented

at the sentencing hearing. Further, the court’s statements during the sentencing

hearing and in the journal entry demonstrate that the court considered the

required factors. See Pettigrew at ¶ 17.

      {¶13} Pursuant to the Supreme Court’s guidance concerning appellate

review of R.C. 2929.11 and 2929.12 in Jones, 

, we

cannot say that Johnson has clearly and convincingly demonstrated that his

sentence was contrary to law. Johnson’s sentence is within the statutory range

permitted for the offenses that he pled guilty to, and the trial court considered the

principles and purposes of felony sentencing under R.C. 2929.

      B.     Indefinite Sentences

      {¶14} Further, Johnson argued that the trial court’s imposition of an

indefinite sentence was invalid and not properly done. R.C. 2929.144(B)(3) states:

      The court imposing a prison term on an offender under division
      (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a
      qualifying felony of the first or second degree shall determine the
      maximum prison term that is part of the sentence in accordance with
      the following: If the offender is being sentenced for more than one
      felony, if one or more of the felonies is a qualifying felony of the first
      or second degree, and if the court orders that all of the prison terms
      imposed are to run concurrently, the maximum term shall be equal to
      the longest of the minimum terms imposed on the offender under
      division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for
      a qualifying felony of the first or second degree for which the sentence
      is being imposed plus fifty per cent of the longest minimum term for
      the most serious qualifying felony being sentenced.

      {¶15} Johnson argues that the trial court imposed the one-year indefinite

sentence on both qualifying felonies. However, his argument is misplaced.

According to the journal entry, the trial court sentenced Johnson to two years on

both counts of felonious assault. The trial court ran the sentences concurrently to

each other and imposed an indefinite term of one year. As stated above, R.C.

2929.144(B)(3) requires the trial court to sentence the appellants to the maximum

term, which should be equal to the longest of the minimum terms imposed on the

offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code

for a qualifying felony of one-half of the longest minimum term for the most

serious qualifying felony being sentenced, which in this case is one year. See State

v. McLoyd, 

 (8th Dist.).

      {¶16} Therefore, Johnson’s sole assignment of error is overruled.

      {¶17} 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



___________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR