State v. Brown

[Cite as State v. Brown, 2019-Ohio-3288.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO :

:

Plaintiff-Appellee : Appellate Case Nos. 28197 and 28198

:

v. : Trial Court Case Nos. 2018-CR-2603

: and 2018-CR-2274

JAMES T. BROWN :

: (Criminal Appeal from

Defendant-Appellant : Common Pleas Court)

:

...........

OPINION

Rendered on the 16th day of August, 2019.

...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio

45422

Attorney for Plaintiff-Appellee

PAMELA L. PINCHOT, Atty. Reg. No. 0071648, 345 North Main Street, Suite 2,

Springboro, Ohio 45066

Attorney for Defendant-Appellant

.............

DONOVAN, J.

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{¶ 1} In Montgomery C.P. No. 2018-CR-2274, James T. Brown appeals from a

judgment entry of conviction following a plea of guilty to one count of aggravated

possession of drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. He was

sentenced to 12 months in prison. In Montgomery C.P. No. 2018-CR-2603, Brown

appeals from a judgment entry of conviction following a plea of guilty to petty theft, in

violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. In Case No. 2018-

CR-2603, Brown was sentenced to 180 days in the Montgomery County Jail, to be served

concurrently with the sentence in Case No. 2018-CR-2274. Brown asserts that his

maximum sentences were not clearly and convincingly supported by the record and/or

were contrary to law. We hereby affirm the judgment of the trial court.

{¶ 2} On August 6, 2018, Brown was indicted for aggravated possession of drugs.

He failed to appear for his arraignment on September 4, 2018. On September 26, 2018,

he was charged by way of a bill of information with petty theft. On September 27, 2018,

Brown pled guilty to both offenses. At the plea hearing, the court indicated that Brown

had “verbally waived the right to grand jury as well as the 24-hour rule,” and that Brown

had signed the appropriate forms to memorialize his waiver in the misdemeanor case.

{¶ 3} Brown was sentenced on October 25, 2018. The court indicated that it had

reviewed Brown’s presentence investigation report and that it considered the purposes

and principles of sentencing and the seriousness and recidivism factors in imposing

sentence for the felony offense. The court advised Brown that, upon his release, he may

be required to serve three years of post-release control under the supervision of the

parole board. The court disapproved placement in programs of shock incarceration and

intensive program prison because of Brown’s criminal history. The court noted in each

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case that Brown was entitled to 36 days of jail time credit.

{¶ 4} Brown asserts the following assignment of error:

THE TRIAL COURT’S IMPOSITION OF SENTENCE, WHICH WAS

THE MAXIMUM SENTENCE OF 12 MONTHS IN PRISON FOR

DEFENDANT-APPELLANT’S CONVICTION OF POSSESSION OF A

CONTROLLED SUBSTANCE, A FELONY OF THE FIFTH DEGREE, AND

SIX (6) MONTHS IN PRISON FOR DEFENDANT-APPELLANT’S

CONVICTION OF THEFT, A MISDEMEANOR OF THE FIRST DEGREE,

IS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD

AND/OR IS CONTRARY TO LAW.

{¶ 5} Brown asserts that, applying the purposes and principles of sentencing

contained in R.C. 2929.11 and the sentencing factors contained in R.C. 2929.12 to his

case, the maximum sentence was not appropriate. He argues that there was no

evidence to support a finding that any factor contained in R.C. 2929.12 existed, which

would support the conclusion that his conduct was more serious than that normally

constituting the offense. Brown argues that there was, however, evidence in the record

to support a finding under R.C. 2929.12(C)(3) that his conduct was less serious than

conduct normally constituting the offense, “in that [the] very nature of the charges –

possession of drugs and petty theft – demonstrate that [Brown] did not expect to cause

physical harm to any person or property.” Brown argues that there was also evidence

that he was not likely to commit future crimes, as set forth in R.C. 2929.12(E)(3) and (5),

insofar as he had “lived a law-abiding life for a significant number of years prior to

committing the offense[s] and he exhibited genuine remorse.”

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{¶ 6} The State notes that this appeal may be moot as it relates only to the

imposition of the maximum sentences; it also argues that Brown’s sentence was not

contrary to law, and that the sentence was supported by the record.

{¶ 7} The Ohio Department of Rehabilitation and Correction’s website indicates

that Brown was placed on transitional control with supervision by the Adult Parole

Authority on March 22, 2019, for a period of six months. In other words, he is serving the

last six months of his felony sentence on transitional control. A violation of transitional

control could result in Brown’s return to the institution to serve the balance of his felony

sentence. R. C. 2967.26(F). Because he has not completed his sentence, his appeal

is not moot.

{¶ 8} As this Court has noted:

When reviewing felony sentences, appellate courts apply the

standard of review found in R.C. 2953.08(G)(2), not an abuse of discretion

standard. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may

increase, reduce, or modify a sentence, or it may vacate the sentence and

remand for resentencing, only if it “clearly and convincingly” finds either (1)

that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law.

“The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum * * * sentences.” State

v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial

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court must consider the statutory criteria that apply to every felony offense,

including those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard,

194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.),

citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶

38. * * * R.C. 2929.12(B) sets forth nine factors indicating that an offender's

conduct is more serious than conduct normally constituting the offense,

whereas R.C. 2929.12(C) sets forth four factors indicating that an offender's

conduct is less serious than conduct normally constituting the offense.

Similarly, R.C. 2929.12(D) and (E) each lists five factors that trial courts are

to consider regarding an offender being more or less likely to commit future

crimes.

Although statutory maximum sentences do not require any of the

findings specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found

it appropriate “for appellate courts to review those sentences that are

imposed solely after consideration of the factors in R.C. 2929.11 and

2929.12 under a standard that is equally deferential to the sentencing court.

That is, an appellate court may vacate or modify any sentence that is not

clearly and convincingly contrary to law only if the appellate court finds by

clear and convincing evidence that the record does not support the

sentence.” Marcum at ¶ 23.

State v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 6-8.

{¶ 9} Brown’s felony sentence is not contrary to law; pursuant to R.C.

2929.14(A)(5), the maximum sentence for a felony of the fifth degree is 12 months. As

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noted above, the trial court indicated to Brown at sentencing that it considered the R.C.

2929.11 and R.C. 2929.12 factors, and the trial court was not required to discuss the

individual factors contained within the statutes. Roberts at ¶ 13, citing State v. Sparks,

2d Dist. Montgomery No. 2017-CA-95, 2018-Ohio-3298, ¶ 8. That being so, an appellate

court cannot infer from a trial court’s failure to discuss the specific statutory factors that it

did not consider them. Id.

{¶ 10} Further, Brown’s felony sentence is not clearly and convincingly

unsupported by the record. His presentence investigation report, which the court

considered, reflects that he had 25 prior adult misdemeanor offenses dating back to 1994,

including drug and theft offenses. Brown’s adult felony record included convictions for

possession of drugs (2002), forgery (2006), burglary (2006), receiving stolen property

(2007), robbery (2010), and breaking and entering (2012). His felony record further

reflected that he had previously been granted intervention in lieu of conviction, placed in

the Stop and the MonDay programs, and placed on community control supervision. At

sentencing, after Brown asked the court for “an opportunity to get into treatment and get

help again,” the court responded that “the difficulty with our present situation is your

criminal history with this constituting your seventh felony and 26th misdemeanor and your

past efforts at supervision having a record of not being successful.” Based on our review

of the record, including the presentence investigation report, we do not find that Brown’s

felony sentence was clearly and convincingly unsupported by the evidence.

{¶ 11} Finally, Brown’s appeal of his misdemeanor conviction is moot because, in

light of his time spent in prison and his jail time credit, Brown has completed his 180 day

sentence, and there is no relief we can afford. State v. Wright, 2d Dist. Montgomery No.

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26471, 2015-Ohio-3919, ¶ 14, 27.

{¶ 12} Brown’s assignment of error is overruled, and the judgment of the trial court

is affirmed.

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HALL, J. and TUCKER, J., concur.

Copies sent to:

Mathias H. Heck, Jr.

Lisa M. Light

Pamela L. Pinchot

Hon. Mary Lynn Wiseman