State v. Browning

[Cite as State v. Browning, 2022-Ohio-127.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110555

v. :

ANTHONY BROWNING, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: January 20, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-650969-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Amanda Hall, Assistant Prosecuting

Attorney, for appellee.

Margaret M. Keenan, for appellant.

EMANUELLA D. GROVES, J.:

Defendant-appellant, Anthony Browning (“Browning”), appeals from

his judgment of conviction, challenging the trial court’s imposition of a two-year

prison sentence. For the reasons set forth below, we affirm Browning’s conviction.

Procedural and Factual History

In September 2020, a grand jury indicted Browning, along with

codefendant Milton Sherrod (“Sherrod”), for sexual battery and complicity for

offenses committed in 2004. The record reveals that Browning was 22 years old and

the victim was 15 years old at the time of the incident. It was alleged that Browning

and Sherrod took turns raping the victim, without the use of prophylactics, in a

motor vehicle and that Sherrod choked the victim during the incident.

In March 2021, pursuant to a plea agreement, Browning pleaded

guilty to an amended count of sexual battery, a felony of the third degree. The state

of Ohio dismissed the remaining count.

In April 2021, the trial court held a sentencing hearing. The victim

appeared at the hearing via Zoom, but the assistant prosecuting attorney (“APA”)

advised the trial court that he had spoken with the victim, who did not want to say

anything on the record at that moment. The APA continued that

[w]hen we spoke with [victim] this morning, she’s very eager to move

past this case. She’s very close to finishing up her own sentence in

prison. And one of the poignant things that she discussed is even

though she doesn’t like prison, she thinks it is awful, she really does

want to see this individual punished for what he did.

The trial court then sentenced Browning to a two-year prison term, imposed a

mandatory term of five years postrelease control, and designated him a sexually

oriented offender.

In June 2021, Browning filed a motion for leave, with this court, to

file a delayed appeal. Two weeks later, we granted Browning’s motion for leave to

file the delayed appeal. In this delayed appeal, Browning now raises the following

three assignments of error for our review:

Assignment of Error No. 1

The two-year prison sentence issued by the trial court was contrary [to]

law because it failed to conform with the overriding purposes of felony

sentencing identified in R.C. §2929.11 and failed to consider the

seriousness and recidivism factors identified in R.C. §2929.12.

Assignment of Error No. 2

The two-year prison sentence issued by the trial court was contrary to

law because the trial judge did not consider community control as a

sanction as required by R.C. §2929.13.

Assignment of Error No. 3

The two-year prison sentence issued by the trial court was contrary to

law because it failed to comport with Ohio Crim.R. 32(B)(2) and (3)

and the appellant was not advised of his right to appeal the sentence

and was resultingly harmed.

Law and Analysis

In the first assignment of error, Browning argues the trial court’s

imposition of a two-year prison sentence was contrary to law. We disagree.

We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 1, 21. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the

appellate court “shall review the record, including the findings underlying the

sentence * * * given by the sentencing court” and that it “may increase, reduce, or

otherwise modify a sentence * * * or may vacate the sentence and remand the matter

to the sentencing court for resentencing” if it “clearly and convincingly finds” that

(1) “the record does not support the sentencing court’s findings” under particular

statutory provisions that do not apply here or (2) “the sentence is otherwise contrary

to law.”

In the instant matter, Browning contends the imposed sentence was

contrary to law because it failed to comport with the overriding purposes of felony

sentencing set forth in R.C. 2929.11. According to Browning, the trial court failed to

consider the need to incapacitate, deter, and rehabilitate him, as well as the need for

him to make restitution to the victim and society.

At the outset, we note, if the sentence is within the statutory range for

the offense and the court considers both the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set

forth in R.C. 2929.12, a trial court’s imposition of a prison term for a felony

conviction is not contrary to law. State v. Woodard, 8th Dist. Cuyahoga No. 106300,

2018-Ohio-2402, ¶ 35; see also State v. Clay, 8th Dist. Cuyahoga No. 108500, 2020-

Ohio-1499, ¶ 26, citing State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-

5926, ¶ 58.

Under R.C. 2929.11, a sentence imposed for a felony shall be

“reasonably calculated” to achieve “three overriding purposes of felony sentencing”

— (1) to protect the public from future crime by the offender and others, (2) to

punish the offender, and (3) to promote the effective rehabilitation of the offender

— “using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A) and (B). Additionally, the sentence imposed “shall be

commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim” and “consistent with sentences imposed for similar

crimes committed by similar offenders.” R.C. 2929.11(B).

The sentencing court must also consider the seriousness and

recidivism factors set forth in R.C. 2929.12 in determining the most effective way to

comply with the purposes and principles of sentencing set forth in R.C. 2929.11.

State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 9. R.C. 2929.12

provides a nonexhaustive list of factors a trial court must consider when

determining the seriousness of the offense and the likelihood that the offender will

commit future offenses. State v. Samuels, 8th Dist. Cuyahoga No. 88610, 2007-

Ohio-3904, ¶ 14. R.C. 2929.11 and 2929.12 are not fact-finding statutes and, thus,

the trial court is not required to use particular language or make specific findings on

the record regarding its consideration of those factors. State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Wenmoth, 8th Dist.

Cuyahoga No. 103520, 2016-Ohio-5135, ¶ 16.

In keeping with the above principles, this court has “refused to find

that a sentence is contrary to law when the sentence is in the permissible range and

the court’s journal entry states that it ‘considered all required factors of the law’ and

‘finds that prison is consistent with the purposes of R.C. 2929.11.’” State v. Williams,

8th Dist. Cuyahoga No. 100042, 2014-Ohio-1618, ¶ 17, quoting State v. May, 8th

Dist. Cuyahoga No. 99064, 2013-Ohio-2697, ¶ 16.

Here, the two-year sentence for Browning’s conviction, a third-

degree felony, was within the permissible range.1 Further, the court’s judgment of

conviction states that “[t]he court considered all required factors of the law. The

court finds that prison is consistent with the purpose of R.C. 2929.11.” Moreover,

although the trial court was not required to make findings on the record under R.C.

2929.11 and 2929.12, the trial court discussed its reasoning at the sentencing

hearing.

Specifically, the trial court noted the seriousness of the crime and

that the victim was a 15-year-old “hostage” in the car with Browning and Sherrod.

Browning contends that the trial court’s use of the word “hostage” was misplaced,

because he was not convicted of kidnapping. However, because the record

demonstrates that the battery occurred while the victim was in a car with Browning

and Sherrod, we are not troubled by the trial court’s characterization of the victim

as a “hostage.”

Nonetheless, Browning cites to his young age — 22 years old — at the

time of the crime, which occurred in 2004. However, the trial court aptly focused

on the young age of the victim — 15 years old — which is a factor under R.C.

2929.12(B)(1), indicating that Browning’s conduct was more serious than conduct

normally constituting the offense. On the record before us, Browning has failed to

demonstrate that his sentence was contrary to law.

1See R.C. 2929.14(A)(3)(a), which provides for a sentencing range of 12 to 60

months for a third-degree felony sexual battery conviction.

Accordingly, we overrule the first assignment of error.

In his second assignment of error, Browning argues that his two-year

prison sentence was contrary to law because the trial court failed to consider

community-control sanctions under R.C. 2929.13. We disagree.

“[T]hird degree felonies carry no presumption for either prison or

community control.” State v. Robinson, 8th Dist. Cuyahoga No. 99080, 2013-Ohio-

2698, ¶ 10. “[T]he decision whether to impose prison or community control

sanctions lies squarely within the discretion of the trial court.” State v. Stewart, 8th

Dist. Cuyahoga No. 104402, 2017-Ohio-740, ¶ 10, citing Robinson at id. Rather,

R.C. 2929.13(C) “allows the trial court to impose a sentence that furthers the

purposes and principles of felony sentencing set forth in R.C. 2929.11 after

considering all the seriousness and recidivism factors listed in R.C. 2929.12.”

Robinson at id.

As discussed in our resolution of the first assignment of error, the trial

court properly considered R.C. 2929.11 and 2929.12. As previously indicated, the

APA informed the trial court that it was the victim’s wish that Browning would serve

some prison time for the crime. In relaying the victim’s wishes to the trial court, the

APA stated:

This was, of course, a violent offense against a young lady who at the

time was 15 years old. Did not use any sort of protection so put her at

risk for STD’s, emotional trauma, and you know, it really sets up this

young lady to live with this trauma for the rest of her life. You can see

as she’s quietly sitting there, this is something that remains with her

many years later. Your Honor, with this in mind, I would ask this Court

to impose a prison sentence.

I don’t believe community control is appropriate in this situation based

on the facts, the history, and the wishes of the victim, and the court

noted the seriousness of the offense committed against the victim when

she was just 15 years old.

The above excerpt, and elsewhere in the record, belies Browning’s

assertion that the trial court failed to consider community control sanctions under

R.C. 2929.13. The record demonstrates that the trial court properly exercised its

discretion in imposing a prison term rather than community-control sanctions.

Accordingly, we overrule the second assignment of error.

In the third assignment of error, Browning argues that his two-year

prison sentence was contrary to law because the trial court failed to advise him of

his appellate rights.

Crim.R. 32(B) requires a trial court to advise a defendant of his or her

appellate rights. Indeed, a review of the transcript reveals that the trial court did not

so advise Browning. As previously mentioned, the judgment of conviction was

issued in April 2021. In June 2021, Browning filed a motion for delayed appeal,

which was granted approximately two weeks later. This court has consistently held

that when a motion for delayed appeal is granted, an appellant is not prejudiced and

any error under Crim.R. 32(B) is harmless. State v. Hunter, 8th Dist. Cuyahoga No.

99472, 2013-Ohio-5022, ¶ 24.

Nonetheless, Browning contends he was prejudiced by the trial

court’s failure to advise him of his appellate rights because he was physically abused

while in prison, he was not available for his 19-year-old son who was assaulted while

Browning was in prison, and he was separated from his other children, one of whom

was an infant.

However, we are not persuaded that these circumstances, even if

true, rise to level of legal prejudice. As previously indicated, Browning sought and

was granted leave to appeal. As such, Browning did not suffer any prejudice in terms

of his legal rights by the trial court’s failure to advise him of his appellate rights.

Accordingly, we overrule the third assignment of error.

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. The defendant’s

conviction having been affirmed, any bail pending is terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

MICHELLE J. SHEEHAN, P.J., and

LISA B. FORBES, J., CONCUR