# State v. Spears

> Ohio Court of Appeals · January 23, 2023 · 2023 Ohio 187

URL: https://www.frixlaw.com/law-library/cases/9365735

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** January 23, 2023
- **Citations:** 2023 Ohio 187
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baldwin
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9365735

## Opinion text

[Cite as State v. Spears, 2023-Ohio-187.]

COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
LANDON SPEARS, : Case No. 2021 CA 00030
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
2021CR0152

JUDGMENT: Vacated and Remanded

DATE OF JUDGMENT: January 20, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

R. KYLE WITT BRIAN A. SMITH
Fairfield County Prosecuting Attorney 123 Miller Road
239 West Main Street, Suite 101 Fairlawn, Ohio 44333
Lancaster, Ohio 43130
Fairfield County, Case No. 2021 CA 00030 2

Baldwin, J.

{¶1} Landon Spears appeals the verdict of the Fairfield County Court of Common

Pleas finding him guilty of Involuntary Manslaughter, a first degree felony in violation of

R.C. 2903.04, a three-year firearm specification related to that charge and Aggravated

Robbery, a first degree felony in violation of R.C. 2911.01(A)(1) and the imposition of a

cumulative prison term of 16 to 21 years. The State of Ohio is Appellee.

STATEMENT OF THE FACTS AND THE CASE

{¶2} Landon Spears was alleged to be a delinquent child as the result of

allegedly committing Aggravated Murder (two counts), Murder and Aggravated Burglary

(five counts). Appellee sought an order to transfer the matter to the Fairfield County

Common Pleas Court. Spears was bound over to the Common Pleas Court and indicted

with the same list of charges, but as an adult.

{¶3} The facts underlying the offenses are unnecessary for the resolution of this

appeal and are omitted.

{¶4} Spears and Appellee entered into a negotiated plea agreement where

Spears plead guilty to Count One after it was amended to Involuntary Manslaughter, as

well as Specification One to that charge and Count Eight, Aggravated Burglary, as

charged. The balance of the charges were dismissed. The text of the charges and

specifications before the amendment to Count One is:

COUNT ONE - AGGRAVATED MURDER, UF:

On or about January 26, 2021, at the County of Fairfield, State of Ohio or

venue being properly placed there pursuant to § 2901.12(H), aforesaid,

Landon Allen Spears, unlawfully did purposely cause the death of H.M.T.
Fairfield County, Case No. 2021 CA 00030 3

while committing, or attempting to commit, or while fleeing immediately after

committing or attempting to commit the offense of Aggravated Robbery

and/or Robbery and/or Aggravated Burglary and/or Burglary and/or

Trespass in a Habitation When a Person is Present or Likely to be Present

in violation of § 2903.01(B), 2929.02(A) of the Ohio Revised Code.

SPECIFICATION ONE TO COUNT ONE - § 2941.145(A)

It is further specified that Landon Allen Spears had a firearm on or about his

person or under his control while committing the offense and displayed the

firearm, brandished the firearm, indicated that he possessed the firearm, or

used it to facilitate the offense.

***

COUNT EIGHT - AGGRAVATED ROBBERY, F1:

And the Jurors of the Grand Jury aforesaid, on their oaths aforesaid, do

further present and find, that the said Landon Allen Spears, on or about

January 26, 2021, at the County of Fairfield, State of Ohio or venue being

properly placed there pursuant to § 2901.12(H), aforesaid, unlawfully did, in

attempting or committing a theft offense, as defined in section 2913.01 of

the Revised Code, or in fleeing immediately after the attempt or offense

upon J.A.B. did have a deadly weapon, to wit: a firearm, on or about his

person or under his control and either displayed the weapon, brandished it,

indicated that he possessed it, or used it in violation of § 2911.01(A)(1),

2911.01(C) of the Ohio Revised Code.
Fairfield County, Case No. 2021 CA 00030 4

{¶5} The trial court imposed a sentence of ten to fifteen years on Count One,

and an additional mandatory three years for the specification to Count One, and a prison

term of three years on Count Eight for an aggregate sentence of sixteen to twenty-one

years.

{¶6} Appellant filed a delayed appeal after receiving leave from this court and

submitted three assignments of error:

{¶7} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE’S

SENTENCES FOR FIRST AND SECOND-DEGREE QUALIFYING FELONIES

VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF

OHIO.”

{¶8} “II. THE TRIAL COURT PLAINLY ERRED BY FAILING TO MERGE

SPEARS’S OFFENSE OF INVOLUNTARY MANSLAUGHTER AND AGGRAVATED

ROBBERY.”

{¶9} “III. SPEARS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

{¶10} Spears appellate counsel withdrew from his representation and new

counsel was appointed. Spears requested leave to file a supplemental brief with an

additional assignment of error and this court granted the motion. Spears submitted a

fourth assignment of error:

{¶11} “IV. THE TRIAL COURT’S SENTENCE OF APPELLANT WAS

CONTRARY TO LAW FOR FAILING TO CONSIDER APPELLANT’S YOUTH AS A

FACTOR, AS REQUIRED UNDER R.C. 2929.19(B)(1)(B).”
Fairfield County, Case No. 2021 CA 00030 5

ANALYSIS

I.

{¶12} In his First Assignment of Error, Spears challenges the constitutionality of

the Reagan Tokes Act, specifically R.C. § 2967.271, which codified hybrid indefinite

prison terms for first- and second-degree felonies. Appellant argues that the Act violates

the separation of powers doctrine, the constitutional right to trial by jury, due process and

equal protection.

{¶13} Spears arguments regarding the Reagan Tokes Act were presented to this

court in State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-Ohio-1481, State v.

Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372 and State v. K'marr M.

Cooper, 5th Dist. Coshocton No. 2021 CA 0024, 2022 WL 17169063 and Spears does

not present a persuasive argument that our analysis should be amended.

Violation of Right to Trial by Jury

{¶14} Spears argues that the Department of Rehabilitation and Correction

(“DRC”) unilaterally conducts fact-finding which may extend an inmate's sentence, and

that this violates his right to trial by jury citing Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000).

{¶15} In Apprendi, a jury convicted the defendant of a gun crime that carried a

maximum prison sentence of 10 years. Id. However, a judge imposed a longer sentence

pursuant to a statute providing him authorization. Id. The judge found, by a

preponderance of the evidence, that the defendant had committed the crime with racial
Fairfield County, Case No. 2021 CA 00030 6

bias. Apprendi held this scheme unconstitutional. Id. “[A]ny fact that increases the penalty

for a crime beyond the prescribed statutory maximum,” the Court explained, “must be

submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant.

Id. at 490. A State may not avoid this restraint on judicial power by simply calling the

process of finding new facts and imposing a new punishment a judicial “sentencing

enhancement.” Id., at 495. “[T]he relevant inquiry is one not of form, but of effect—does

the required [judicial] finding expose the defendant to a greater punishment than that

authorized by the jury's guilty verdict?” Id. at 494.

{¶16} In Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), the United States Supreme Court addressed mandatory minimum sentences and

the Sixth Amendment. In Alleyne, the jury relied on victim testimony of an armed robbery

that one of the perpetrators possessed a gun. The trial court relied on the same testimony

to determine that either Alleyne or his accomplice brandished a gun. The testimony was

the same, but the findings were different. The jury found that Alleyne possessed a gun,

but made no finding with regard to whether Alleyne brandished a gun. The court, however

determined that the gun was brandished. The Supreme Court reviewed the statutory

punishment structure, which included a mandatory minimum sentence of five years if a

crime of violence was committed while the offender carried a firearm, seven years if the

firearm was brandished, and ten years if the firearm was discharged during the crime. 18

U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not

exceeding 20 years. 18 U.S.C.1951 (a). The Court held that where facts were not found

by a jury that enhanced the mandatory minimum penalty for a crime, the Sixth

Amendment was violated. Specifically, “[b]ecause mandatory minimum sentences
Fairfield County, Case No. 2021 CA 00030 7

increase the penalty for a crime, any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.” Alleyne at 103. See, State v. Fort, 8th Dist.

Cuyahoga No. 100346, 17 N.E.3d 1172, 2014-Ohio-3412, ¶ 29. However, the majority in

Alleyne held:

In holding that facts that increase mandatory minimum sentences

must be submitted to the jury, we take care to note what our holding does

not entail. Our ruling today does not mean that any fact that influences

judicial discretion must be found by a jury. We have long recognized that

broad sentencing discretion, informed by judicial fact-finding, does not

violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S.

817, 177 L.Ed.2d 271, 130 S.Ct. 2683 “[W]ithin established limits [,]... the

exercise of [sentencing] discretion does not contravene the Sixth

Amendment even if it is informed by judge-found facts” (emphasis deleted

and internal quotation marks omitted)); Apprendi, 530 U.S. at 481, 120 S.Ct.

2348 (“[N]othing in this history suggests that it is impermissible for judges

to exercise discretion—taking into consideration various factors relating

both to offense and offender—in imposing a judgment within the range

prescribed by statute”).

Alleyne, 570 U.S. at 116. See also, State v. Salim, 5th Dist. Guernsey No. 13 CA

28, 2014-Ohio-357, ¶ 19.

{¶17} Under the Reagan Tokes Act the judge imposes both a minimum and a

maximum sentence. No judicial fact-finding is required. In Ohio, “trial courts have full
Fairfield County, Case No. 2021 CA 00030 8

discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124. The Reagan Tokes Act does not permit the DRC to extend a sentence

beyond the maximum sentence imposed by the trial court. Burris at ¶ 86. “Further, the

facts which postpone an inmate’s release date are facts found as a result of prison

disciplinary proceedings, not the underlying crime.” Id.

Violation of Separate Powers

{¶18} “The Ohio Supreme Court has made it clear that when the power to sanction

is delegated to the executive branch, a separation-of-powers problem is avoided if the

sanction is originally imposed by a court and included in its sentence.” Burris at ¶ 78,

quoting Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-

20 quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19.

This is the scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist.

Montgomery No. 28644, 2020-Ohio-4153, ¶ 23. The statute does not permit DRC to act

outside of the maximum prison term imposed by the court. Id. Accordingly, the Reagan

Tokes Act does not violate the separation of powers doctrine.

Violation of Due Process

{¶19} Procedural requirements are minimal in the context of parole. Burris at ¶ 59.

“[P]rison disciplinary proceedings are not part of a criminal prosecution, and the full

panoply of rights due a defendant in such proceedings does not apply. Wolff v. McDonnell,

418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). Courts have
Fairfield County, Case No. 2021 CA 00030 9

found the following procedures should be accorded to prisoners in a disciplinary

proceeding:

1). a prisoner is entitled to a review unaffected by “arbitrary” decision

making. Wolff, 418 U.S. at 557-558, 94 S.Ct. 2963; (See, Ohio Admin. Code

5120-9-08). 2). Advance written notice of the claimed violation. Wolff, 418

U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12). 3). A

written statement of the fact finders as to the evidence relied upon and the

reasons for the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct.

2963. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120: 1-

11(G)(1)). 4). Prison official must have necessary discretion to keep the

hearing within reasonable limits and to refuse to call witnesses that may

create a risk of reprisal or undermine authority, as well as to limit access to

other inmates to collect statements or to compile other documentary

evidence. Wolff, 418 U.S. at 566, 94 S.Ct. 2963 (See, Ohio Adm. Code

5120-0-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). “Where an illiterate

inmate will be able to collect and present the evidence necessary for an

adequate comprehension of the case, he should be free to seek the aid of

a fellow inmate, or if that is forbidden, to have adequate substitute aid in the

form of help from the staff or from a sufficiently competent inmate

designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct. 2963. (See, Ohio

Adm. Code 5120-9-07(H)(1)).

Burris at ¶ 65.
Fairfield County, Case No. 2021 CA 00030 10

{¶20} In the case sub judice, the DRC must conduct a hearing to rebut the

presumptive release date. Id. at ¶ 66. According to R.C. § 2967.271(C) the DRC must

determine the applicability of the following factors:

(1) Regardless of the security level in which the offender is classified at

the time of the hearing, both of the following apply:

(a) During the offender's incarceration, the offender committed institutional

rule infractions that involved compromising the security of a state

correctional institution, compromising the safety of the staff of a state

correctional institution or its inmates, or physical harm or the threat of

physical harm to the staff of a state correctional institution or its inmates, or

committed a violation of law that was not prosecuted, and the infractions or

violations demonstrate that the offender has not been rehabilitated.

(b) The offender's behavior while incarcerated, including, but not limited to

the infractions and violations specified in division (C)(1)(a) of this section,

demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified at the

time of the hearing, the offender has been placed by the department in

extended restrictive housing at any time within the year preceding the date

of the hearing.

(3) At the time of the hearing, the offender is classified by the department

as a security level three, four, or five, or at a higher security level.

{¶21} The Reagan Tokes Act requires DRC to provide notice of the hearing. R.C.

§ 2967.271(E). The Ohio Administrative Code sets forth inmate rules of conduct,
Fairfield County, Case No. 2021 CA 00030 11

disciplinary procedures for violations of the rules, under what circumstances an inmate is

transferred to restrictive housing, and procedure for release consideration hearings. Ohio

Adm. Code 5120-9-06; Ohio Adm. Code 5120-9-08; Ohio Adm. Code 5120-9-10; Ohio

Adm. Code 5120:1-1-11. Therefore, the DRC gives the inmate notice in advance of

behavior which may contribute or result to extending their sentence.

{¶22} The Reagan Tokes Act provides the inmate an opportunity to be heard. The

DRC “shall provide notices of hearings to be conducted under division (C) or (D) of this

section in the same manner, and to the same persons, as specified in section 2967.12

and Chapter 2930 of the Revised Code with respect to hearings to be conducted

regarding the possible release on parole of an inmate.” R.C. § 2967.271(E).

{¶23} Therefore, we find the Reagan Tokes Act does not violate Appellant's right

to due process.

Right to Equal Protection

{¶24} Spears contends that his right to equal protection was violated. However,

we concur with the court in State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,

2021-Ohio-1353, 2021 WL 1530036 at footnote 2, appeal allowed, 2021-Ohio-2742, 164

Ohio St. 3d 1403, 172 N.E.3d 165:

As for the equal protection argument, the fact that prisoners do not

receive the full panoply of rights afforded those accused of crimes is not an

equal protection violation. See State ex rel. Bray v. Russell, 12th Dist.

Warren No. CA98-06-068, 1998 WL 778373, 1998 Ohio App. LEXIS 5377

(Nov. 9, 1998). There is a fundamental difference between normal society
Fairfield County, Case No. 2021 CA 00030 12

and prison society. Id. Rules designed to govern those functioning in a free

society cannot automatically be applied to the very different situation

presented in a prison. Prison disciplinary proceedings are not part of a

criminal prosecution and the full panoply of rights due a defendant in such

proceedings does not apply. Id. Furthermore, an equal protection claim

arises only when similarly situated individuals are treated differently. In

other words, laws are to operate equally upon persons who are identified in

the same class. It is axiomatic that the entire Ohio penal system is based

upon classifying and treating each felony degree differently.

{¶25} We find that Reagan Tokes does not violate Appellant's right to equal

protection.

{¶26} Spear’s First Assignment of Error is overruled.

II.

{¶27} In his second assignment of error, Spears contends that the trial court erred

by failing to merge Spears’s offense of Involuntary Manslaughter and Aggravated

Robbery. Spears did not object to the failure to merge the offenses before the trial court

and therefore seeks to convince this court that the failure to merge the offenses is plain

error.

{¶28} Spears agreed to enter a guilty plea to one count of Involuntary

Manslaughter with a weapon specification and one count of Aggravated Robbery. The

Appellee agreed to dismiss the balance of the charges. The trial court found that “[b]y
Fairfield County, Case No. 2021 CA 00030 13

agreement of the parties and/or based upon an independent inquiry, the Court finds that

none of the counts merge.” Judgment Entry of Sentence, Aug. 6, 2021, p. 4.

{¶29} The indictment makes clear that the offenses involved harm to different

victims. Count One addressed the death of H.M.T. and the Aggravated Burglary was

directed at J.A.B. We need not engage in lengthy analysis as it is clear that these offenses

are separate and do not merge. “When a defendant's conduct victimizes more than one

person, the harm for each person is separate and distinct, and therefore, the defendant

can be convicted of multiple counts.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, ¶ 26. See State v. Merritt, 5th Dist. Richland No. 2020 CA 0063, 2021-

Ohio-2847, ¶ 55 appeal not allowed, 165 Ohio St.3d 1480, 2021-Ohio-4289, 177 N.E.3d

1000, ¶ 55 (Counts one and eight involved different victims from each other and from the

counts arising from the discovery of the weapons under the mattress. Therefore, the harm

for A.M. and for W.W. is separate and distinct, and Appellant can be convicted of multiple

counts.)

{¶30} We find that the record demonstrates that there were separate victims

involved in Count One and Count Eight, that the harm to the victims is separate and

distinct and that the trial court did not commit plain error by failing to merge the offenses.

{¶31} Spears second assignment of error is denied.

III.

{¶32} In his third assignment of error, Spears alleges that he suffered ineffective

assistance of counsel as a result of his trial counsel’s failure to argue that Reagan Tokes

was unconstitutional and to object to the trial court’s failure to merge the Involuntary

Manslaughter and Aggravated Robbery charges. As we have found that the Reagan
Fairfield County, Case No. 2021 CA 00030 14

Tokes Act is not violative of the constitution and that the trial court did not err by failing to

merge the charges, we find that trial counsel’s performance was not deficient and did not

lead to prejudice.

{¶33} Spears third assignment of error is denied.

IV.

{¶34} In his fourth assignment of error, Spears contends the trial court erred by

failing to consider his youth and its characteristics as mitigating factors as required by

R.C. 2929.19(B)(1)(b). Spears acknowledges that the trial court made statements that

acknowledge some of the elements in the statute, but concludes that “the record shows

that the trial court did not consider the remaining factors under R.C. 2929.19(B)(1)(b),

such as Spears’ ‘family and home environment,’ ‘the way familial and peer pressures may

have impacted the offender’s conduct,’ and ‘[e]xamples of the offender’s rehabilitation,

including any subsequent growth or increase in maturity during confinement.’ R.C 2929.

19(B)(1)(b)(ii)-(iii), (v).” Appellant’s Supplemental Brief, p. 7.

{¶35} 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.
Fairfield County, Case No. 2021 CA 00030 15

{¶36} We have not had the opportunity to consider the application of R.C.

2929.19(B)(1)(b) and the parties have not directed us to any reported decisions applying

this Code section. We have not found cases directly on point, but the analysis of the

language of R.C. 2929.11 and R.C. 2929.12 provides guidance in the application of R.C.

2929.19(B)(1)(b).

{¶37} Revised Code Sections 2929.11 and 2929.12 direct the trial court to

consider specific factors when formulating a sentence for a criminal offense. Under R.C.

2929.11(A) “the sentencing court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or both.” Revised Code 2929.12

contains a lengthy list of factors that must be considered “regarding the offender, the

offense, or the victim” to determine whether the offender’s conduct is more serious or less

serious than conduct normally constituting the offense and to determine whether the

offender is more or less likely to commit future crimes. Revised Code 2929.19(B)(1)(b)

applies only when the offender is under the age of eighteen. The trial court must consider

“youth and its characteristics as mitigating factors, and the statute includes a non-

exclusive list of five categories of information to be considered. Unlike R.C. 2929.11 and

2929.12, these factors are less related to the offense or the purposes of the Code and

are more related to the environmental elements that might impact the offender’s behavior

of mitigate his responsibility. Despite the differences, all of the sections of Chapter 2929

we have referenced share the absence of any requirement for the trial court to issue an

express finding or acknowledgment.
Fairfield County, Case No. 2021 CA 00030 16

{¶38} In our review of the language of these R.C. 2929.11 and 2929.12, we have

held that:

While trial courts are required to consider both R.C. 2929.11 and

2929.12 before imposing a prison sentence, they are not required to make

specific findings under any of those considerations. State v. Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88

Ohio St.3d 208, 724 N.E.2d 793 (2000). “Indeed, consideration of the

factors is presumed unless the defendant affirmatively shows otherwise.”

State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 8,

citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.).

State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-3125, ¶ 18.

{¶39} In a separate case, we concluded that “[a]lthough a trial court must consider

the factors in R.C. 2929.11 and 2929.12, there is no requirement that the court state its

reasons for imposing a maximum sentence, or for imposing a particular sentence within

the statutory range. There is no requirement in R.C. 2929.12 that the trial court states on

the record that it has considered the statutory criteria concerning seriousness and

recidivism or even discussed them. (Citations omitted.) State v. Webb, 5th Dist.

Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 17.

{¶40} While precedent does not require the trial court to produce findings, our

holdings with regard to R.C. 2929.11 and R.C. 2929.12 require that the “necessary

findings can be found in the record,” State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-

Ohio-8996, ¶ 27, State v. Webb, 5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-

4195, ¶ 19 or that “the record reflect[ ] that the trial court considered the purposes and
Fairfield County, Case No. 2021 CA 00030 17

principles of sentencing and the seriousness and recidivism factors as required in

Sections 2929.11 and 2929.12 of the Ohio Revised Code.” State v. Hayes, 5th Dist. Knox

No. 18CA10, 2019-Ohio-1629, ¶ 55. See State v. Green, 7th Dist. No. 20 MA 0084, 2021-

Ohio-2412, 173 N.E.3d 876, ¶ 63 and State v. Hughes, 6th Dist. Wood No. WD-05-024,

2005-Ohio-6405, ¶ 10. The mandate of R.C. 2929.19, that the trial court consider specific

factors, is sufficiently similar to the language of R.C. 2929.11 and R.C. 2929.12 to warrant

to the same analysis. Consequently, while the trial court need not specify findings

regarding the factors listed in R.C. 2929.19(B)(1)(b), we must review the record to

determine whether it affirmatively shows the court failed to consider those factors.

{¶41} The present version of R.C. 2929.19(B)(1)(b) was adopted in Sub. S.B.

No. 256 and was effective on April 12, 2021. This section of the Code was entirely new

and not simply an amendment of a prior version. The relevant language is:

(b) If the offense was committed when the offender was under eighteen

years of age, in addition to other factors considered, consider youth and its

characteristics as mitigating factors, including:

(i) The chronological age of the offender at the time of the offense and that

age's hallmark features, including intellectual capacity, immaturity,

impetuosity, and a failure to appreciate risks and consequences;

(ii) The family and home environment of the offender at the time of the

offense, the offender's inability to control the offender's surroundings, a

history of trauma regarding the offender, and the offender's school and

special education history;
Fairfield County, Case No. 2021 CA 00030 18

(iii) The circumstances of the offense, including the extent of the

offender's participation in the conduct and the way familial and peer

pressures may have impacted the offender's conduct;

(iv) Whether the offender might have been charged and convicted of a

lesser offense if not for the incompetencies associated with youth, such as

the offender's inability to deal with police officers and prosecutors during the

offender's interrogation or possible plea agreement or the offender's inability

to assist the offender's own attorney;

(v) Examples of the offender's rehabilitation, including any subsequent

growth or increase in maturity during confinement.

{¶42} The trial court ordered completion of a pre-sentence investigation. Revised

Code 2947.06 authorizes that court to “direct the department of probation of the county

in which the defendant resides, or its own regular probation officer, to make any inquiries

and presentence investigation reports that the court requires concerning the defendant.”

[T]he officer making the report shall inquire into the circumstances of

the offense and the criminal record, social history, and present condition of

the defendant, all information available regarding any prior adjudications of

the defendant as a delinquent child and regarding the dispositions made

relative to those adjudications, and any other matters specified in Criminal

Rule 32.2. Whenever the officer considers it advisable, the officer's

investigation may include a physical and mental examination of the

defendant. A physical examination of the defendant may include a drug test

consisting of a chemical analysis of a blood or urine specimen of the
Fairfield County, Case No. 2021 CA 00030 19

defendant to determine whether the defendant ingested or was injected with

a drug of abuse. If, pursuant to section 2930.13 of the Revised Code, the

victim of the offense of which the defendant has been convicted wishes to

make a statement regarding the impact of the offense for the officer's use

in preparing the presentence investigation report, the officer shall comply

with the requirements of that section.

R.C. 2951.03.

{¶43} Through these sections of the Ohio Revised Code the trial court has broad

authority to gather the necessary information to allow it to consider the factors listed in

R.C. 2929.19(B)(1)(b).

{¶44} We have reviewed the Pre-Sentence Investigation that is part of the record

and find it incomplete. The document contains information identifying Spears, a list of the

charges and the identity of the judge and attorneys involved in the case. The report

contains a reference to a Juvenile Bind Over and a statement that the Criminal History

was completed on June 24, 2021. The report does contain a lengthy section captioned

“Information Summaries” comprised of a thorough review of the alleged facts, the

investigation and a list of items recovered during the investigation.

{¶45} Immediately after the information summary is the caption “Pre-Sentence

Investigation Interview Summary” followed by the comment: “The pre-sentence

investigation interview has not been completed.” Immediately below that comment is the

caption “Victim Information Summary” followed by the comment: “The victim information

has not been obtained.”
Fairfield County, Case No. 2021 CA 00030 20

{¶46} The report contains a list of the people involved in the case, categorized as

defendant, arresting/reporting officer, victim and witnesses followed by a criminal history

which is limited to the charges filed in this case. The following page is captioned

“Application for Community Controls” and beneath that caption is the following:

EDUCATION: No Data

FAMILY HISTORY: No Data

EMPLOYMENT HISTORY: No Data

HEALTH/MEDICAL HISTORY: No Data

COUNSELING/SUBSTANCE ABUSE: No Data

{¶47} Next is a chart that presumably would be used to chart the defendant’s

substance abuse by drug, listing the defendant’s first use, frequency of use, date of last

use and use at the time of the offense. This chart contains no entries. The report ends

with “MISCELLANEOUS INFORMATION: No Data.”

{¶48} We have reviewed the balance of the record in this case and found no

information that could be considered by the trial court to fulfill the obligation imposed by

Revised Code 2929.19(B)(1)(b). While the Pre-Sentence Investigation contains a

comprehensive description of the facts leading to the charges and the investigation, it

does not contain information that could be interpreted as a review of youth and its

characteristics and the specific elements listed in R.C. 2929.19(B)(1)(b). While the trial

court need not make findings regarding these elements, the facts that must be considered

must be in the record for any review to conclude that the trial court considered them.

{¶49} We find that the record affirmatively shows that the trial court did not

consider the factors listed in R.C. 2929.19(B)(1)(b) because the record lacks any
Fairfield County, Case No. 2021 CA 00030 21

evidence that could be reasonably interpreted as related to those factors. We find that the

failure to consider the elements of that section of the Code renders Spears sentence

clearly and convincingly contrary to law and we remand the matter to the trial court for

resentencing.

{¶50} Our opinion should not be interpreted as a finding that the record does not

support the sentence imposed, but only that the record affirmatively shows that the trial

court did not consider all of the factors listed under R.C. 2929.19(B)(1)(b). We express

no opinion regarding the length of the sentence imposed by the trial court.

{¶51} Spears’ fourth assignment of error is well taken.

{¶52} The sentence imposed by the trial court is vacated and the matter remanded

to the trial court for resentencing after consideration of all relevant factors, including those

listed in R.C. 2929.19(B)(1)(b).

By: Baldwin, J.

Wise, Earle, P.J. and

Wise, John, J. concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9365735. Public record. Not legal advice.