[Cite as State v. Hartness,
2025-Ohio-4584.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114241
v. :
KENNETH HARTNESS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 2, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-689560-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Dominic Neville, Assistant Prosecuting
Attorney, for appellee.
Jonathan N. Garver, for appellant.
SEAN C. GALLAGHER, J.:
Kenneth Hartness appeals his conviction for felonious assault,
abduction, and strangulation of his relative, and the resulting 12.5- to 16.5-year
aggregate term of imprisonment. For the following reasons, we affirm.
According to the victim, Hartness struggles with mental-health
issues and has a history of aggression toward family members that has left them
terrified. On the day of the incident leading to the current conviction, Hartness
attacked and severely beat the victim in their shared home. During the attack,
Hartness posted comments to social media expressing suicidal ideations. When
police officers responded, they found the victim with such extensive injuries that
they believed she had been shot in the head. The victim sustained open wounds
requiring over 100 staples or sutures and surgery.
Hartness pleaded guilty to felonious assault, in violation of
R.C. 2903.11(A)(1); abduction, in violation of R.C. 2905.02(A)(2); strangulation,
in violation of R.C. 2903.18(B)(3); and domestic violence, in violation of
R.C. 2919.25(A). The domestic-violence count merged into the strangulation
conviction. The trial court sentenced Hartness to a stated minimum prison term
of eight years for the felonious assault, a definite three years for the abduction, and
18 months for the strangulation — all of which were imposed to be served
consecutively resulting in the 16.5-year maximum term. The trial court also
imposed a $5,000 fine. At the close of the sentencing hearing, the trial court
denied Hartness’s request for appointed appellate counsel, stating that Hartness
“can hire his own lawyer if he wants” to appeal the conviction.1 Tr. 35:7-18.
1 We cannot condone the deprivation of a defendant’s constitutional right to
appellate counsel. All defendants are entitled to court-appointed counsel once declared
indigent. Nothing in the record demonstrates that Hartness was denied counsel based on
his financial means at the time of sentencing. Nonetheless, any deprivation of
constitutional rights did not prejudice Hartness in this particular case. He timely
Hartness retained appellate counsel to file this appeal. Retained
counsel filed a motion to withdraw, citing Anders v. California, 386 U.S. 738
(1967), and his inability to present any meritorious argument. This panel granted
the motion to withdraw but on different grounds, noting that adherence to the
procedure under Anders was unnecessary because the attorney was retained and
merely stating that arguments would be without merit was insufficient to warrant
dismissal of the appeal. See, e.g., State v. Davis,
2017-Ohio-7713, ¶ 8 (8th Dist.)
(retained counsel was permitted to withdraw without reviewing a brief filed under
Anders); State v. Roberts,
2020-Ohio-3391, ¶ 4 (2d Dist.) (retained counsel may
simply withdraw citing irreconcilable differences, and new counsel may be
appointed upon request). Under Anders, an appeal may be dismissed only if the
appointed counsel demonstrates that any and all potential appellate arguments
would be wholly frivolous if advanced.
Anders at 742-743 (concluding that an
allegation that any appeal would be without merit was not sufficient to satisfy the
frivolity standard); see also State v. Flowers,
2025-Ohio-2071, ¶ 10 (8th Dist.).
Anything less deprives the appellant of his right to counsel. But see State v. Johnson,
2025-Ohio-2592 (8th Dist.) (affirming the convictions based on the arguments
presented by the pro se appellant whose appointed counsel was granted leave to
withdraw based on the claim that no meritorious arguments existed). Although the
preserved his appellate rights, and despite the procedural irregularities, appellate counsel
was ultimately appointed.
retained counsel’s brief under Anders was deficient, this panel granted him leave to
withdraw and new counsel was appointed to represent Hartness in this appeal.
Hartness now advances three assignments of error: that his
maximum consecutive sentences are excessive and unsupported by the record; that
the court erred by imposing the fine despite Hartness’s indigency; and that the trial
court denied him the right of allocution by repeatedly interrupting him and not
permitting him to finish addressing the court. Although the arguments lack merit,
none is wholly frivolous. Each assignment of error will be addressed in turn.
Under his first assignment of error, Hartness claims the trial court’s
imposition of maximum, consecutive sentences is not supported by the record. He
acknowledges, however, that the trial court made the requisite findings for imposing
consecutive sentences under R.C. 2929.14(C)(4).
Appellate review of the imposition of consecutive sentences is narrow.
State v. Rapier, 2020-Ohio-1611, ¶ 12 (8th Dist.). Under R.C. 2953.08(G)(2), an
appellate court “must examine the evidence in the record that supports the trial
court’s findings” and “may modify or vacate the sentence only if it ‘clearly and
convincingly finds’ that the evidence does not support the trial court’s
R.C. 2929.14(C)(4) findings.” State v. Glover,
2024-Ohio-5195, ¶ 45, quoting
R.C. 2953.08(G)(2)(a).
Hartness’s sole argument is that although the victim suffered serious
harm from the protracted assault, that harm was not so great or unusual to justify
the consecutive sentences. According to him, the aggregate term is “overkill.”
Essentially, Hartness is inviting this panel to conduct a de novo review of the factors
considered for sentencing purposes. Appellate courts, however, cannot review the
weight of individual considerations to determine whether a trial court erred in
considering the facts underlying the consecutive-sentence findings. Rapier at ¶ 12,
citing R.C. 2953.08(G)(2) and State v. Marcum,
2016-Ohio-1002; see also State v.
Venes,
2013-Ohio-1891 (8th Dist.); State v. Jones,
2016-Ohio-8145, ¶ 17 (8th Dist.).
The sole question in this appeal is whether it can be clearly and convincingly
demonstrated that the record does not support the R.C. 2929.14(C)(4) findings.
Jones at ¶ 18.
Between the severity and duration of the assault and the victim’s
statements at sentencing regarding Hartness’s propensity for violent episodes, we
cannot conclude that the record clearly and convincingly does not support the
finding that the harm was so great and unusual that consecutive sentences were
necessary. Accord State v. Stiver, 2024-Ohio-65, ¶ 21 (8th Dist.) (noting the severity
of the abuse, the depravity displayed by the defendant during and after the assault,
and repeated criminal behavior were sufficient to support the consecutive-sentence
findings). The first assignment of error is overruled.
In the second assignment of error, Hartness claims the trial court
erred by imposing the $5,000 mandatory fine despite his indigency and without
considering his future ability to pay.
“There are no express factors that must be taken into consideration
nor specific findings that must be made by the court on the record, but there must
be some evidence in the record that the trial court considered the defendant’s
ability to pay.” State v. Schneider, 2012-Ohio-1740, ¶ 10 (8th Dist.), citing State v.
Jacobs,
2010-Ohio-4010, ¶ 11 (8th Dist.). A trial court may satisfy this requirement
when the record shows that the court considered the presentence-investigation
report that contains detailed information regarding the defendant’s age, education,
physical and mental health, finances, and employment history. See State v.
Brown,
2020-Ohio-4474, ¶ 43 (8th Dist.).
Hartness did not object to the court’s imposition of the fines. He
instead argues that the record shows that he is indigent and that it is not likely that
he can afford to pay a $5,000 fine at any time in the foreseeable future. According
to Hartness, at the time of the offense he was living with his mother, was behind
on his child support, and although he was working part-time for a welding
company, he has no assets or career to fall back on when he is released from prison.
He maintains the totality of circumstances demonstrates the court failed to
consider his present and future ability to pay the fine.
“The fact that a defendant is ‘indigent’ or is represented by
appointed counsel does not preclude a trial court from imposing financial
sanctions.” Brown at ¶ 42, citing State v. Nitsche,
2016-Ohio-3170, ¶ 76 (8th
Dist.). Similarly, a lengthy prison sentence does not necessarily preclude a trial
court from imposing financial sanctions.
Brown at ¶ 42, citing
Nitsche at ¶ 76.
Although the trial court did not specifically inquire into his present or future ability
to pay the financial sanction, the court ordered a PSI report, which demonstrated
that Hartness had some type of vocation for the purposes of future employment.
Further, although Hartness was not employed and was behind on his child-support
payments, the record shows he had posted a $10,000 surety bond at the onset of
proceedings. This information was available for the trial court’s consideration in
making an informed decision about Hartness’s future ability to pay the minimal
fine. See, e.g., State v. Rice,
2022-Ohio-1068, ¶ 16 (8th Dist.).
Hartness has not demonstrated error. The second assignment of
error is overruled.
In the third and final assignment of error, Hartness claims that the
trial court’s conduct “effectively denied [him] the right of allocution” because during
the sentencing hearing “the trial court repeatedly interrupted [him], berated him,
scolded him, used sarcasm to intimidate him, and then told him to sit down.”
The law is relatively settled. At sentencing, the trial court must
address the defendant “and ask whether he or she wishes to make a statement or
present information in mitigation of punishment” under Crim.R. 32(A)(1). State v.
Beasley, 2018-Ohio-493, ¶ 200. “If the court imposes sentence without affording
the defendant an opportunity to allocute, then resentencing is required unless the
error was invited or harmless.”
Id., citing State v. Osie,
2014-Ohio-2966, ¶ 179. In
this case, the trial court offered Hartness the opportunity to speak but challenged
his statements minimizing or excusing his conduct.
Although the trial court spoke during Hartness’s allocution, which
could be best described as confrontational, it cannot be concluded that he was
denied his right to speak. The trial court followed the interruptions to the
allocution by expressly permitting Hartness to speak further. The general rule in
Ohio is that “[a] trial court complies with a defendant’s right to allocution when it
personally addresses the defendant and asks whether he or she has anything to
say.” State v. Allison, 2025-Ohio-484, ¶ 12 (2d Dist.), quoting State v. Champeau,
2024-Ohio-4602, ¶ 11, citing State v. Frazier,
2019-Ohio-1546, ¶ 18 (2d Dist.);
Osie
at ¶ 180. Although the trial court conversed with Hartness by challenging his
statements attempting to excuse his conduct, at no point did Hartness cede his
right to speak to the trial court. Although confrontational in tone, the trial court’s
interruptions were conversational in nature, responding to Hartness’s attempt to
downplay his responsibility or excuse his conduct based on vague assertions of
mental-health issues or a rough childhood. Following the interruptions, the trial
court expressly ensured that he was able to further speak. Although uninterrupted
allocution could be considered the best practice, this is not a case where the
defendant was “cowed” into silence by the interruptions.
Allison at ¶ 13.
The third and final assignment of error is overruled.
Having overruled the assignments of error as presented, Hartness’s
convictions and sentences are 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
conviction having been affirmed, any bail pending appeal 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.
______________________
SEAN C. GALLAGHER, JUDGE
LISA B. FORBES, P.J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
