State v. Johnson

2018 Ohio 4232

STATE OF OHIO Plaintiff-Appellee v. ELIJIAH JOHNSON Defendant-Appellant

Appellate Case No. 2018-CA-9

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

October 19, 2018

Trial Court Case Nos. 2016-CR-489 2017-CR-589

(Criminal Appeal from Common Pleas Court)

OPINION

ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

BRYAN K. PENICK, Atty. Reg. No. 0071489 and PATRICK E. O'SHAUGHNESSY, Atty. Reg. No. 0084777, 1900 Kettering Tower, 40 N. Main Street, Dayton, Ohio 45423 Attorneys for Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the January 12, 2018 Notices of Appeal of Elijiah Johnson. Johnson appeals from his December 14, 2017 judgment entries of conviction, issued following pleas of guilty in two cases in the Clark County Court of Common Pleas. In Case No. 2017-CR-589, Johnson pled guilty to one count of possession of cocaine, in violation of R.C. 2925.11(A), as set forth in count two of the indictment, and one count of failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331(B) and (C)(5), as set forth in count three of the indictment.¹ In exchange for his pleas, one count of trafficking in cocaine was dismissed. In Case No. 2016-CR-489, Johnson pled guilty to one count of possession of heroin, in violation of R.C. 2925.11(A), as set forth in count four of the indictment. In exchange for his plea, count three of the indictment, possession of cocaine, was dismissed. Counts one and two of the indictment applied only to a co-defendant. The court sentenced Johnson to three years for failure to comply with an order or signal of a police officer, and to one year each for possession of cocaine and possession of heroin. The sentences for possession were to be served concurrently. The court found that, pursuant to R.C. 2921.331(D), the sentence for failure to comply must be served consecutively to the other sentences, for an aggregate term of four years. We hereby affirm the judgment of the trial court.

{¶ 2} Johnson was indicted on October 12, 2017, in Case No. 2017-CR-589, andon October 3, 2016, in Case No. 2016-CR-489. He entered his guilty pleas in both cases on November 21, 2017. At the plea hearing, the following exchange occurred:

THE COURT: The possession of heroin offense is a felony of the fourth degree. The sentencing range for that offense is anywhere from probation up to and including a maximum penalty of eighteen months in the Ohio State Penitentiary and a $5,000 fine.

The possession of cocaine offense is a felony of the fifth degree. The sentencing range for that offense is anywhere from probation up to and including a maximum penalty of one year in the Ohio State Penitentiary and a $2,500 fine.

There is also the possibility on each of those possession cases that you could receive a driver's license suspension of anywhere from six months up to five years.

The failure to comply offense is a felony of the third degree. The sentencing range for that offense is anywhere from probation up to and including a maximum sentence of three years in the Ohio State Penitentiary, a $10,000 fine and a lifetime driver's license suspension.

Do you understand that these are the sentencing ranges for these three offenses?

THE DEFENDANT: Yes, sir.

THE COURT: If you were sentenced to prison, it would be mandatory that the prison sentence for the failure to comply be run consecutively to the sentence on the other two offenses. Do you understand that?

THE DEFENDANT: Yes, sir.

{¶ 3} At sentencing, the court indicated as follows:

THE COURT: The Court finds the defendant was adjudicated delinquent for robbery, a felony of the second degree, back in 2013, and aggravated riot, a felony of the third degree in 2013.

He was given a sentence at DYS that was suspended and he was placed on probation; and then approximately a year later in 2014 the defendant violated his probation and the Court imposed the DYS sentence.

The Court would note for the record that of these three offenses, the most serious is a felony of the third degree and because of that, the mandatory community control provisions with respect to the fourth and fifth degree felonies, the felony possession offenses, is inapplicable.²

In case #16-CR-489, possession of heroin, a felony of the fourth degree, I think it should be noted for the record that the defendant was in a vehicle that got pulled over with a total of four occupants; and when that vehicle was searched, a semi-automatic handgun was found and while that weapon cannot be attributed to the defendant beyond a reasonable doubt, it could have been possessed by anyone or all or some combination of the four occupants.

The Court is still taking that into consideration that there was afirearm in that vehicle at the time of the offense.

{¶ 4} Johnson's presentence investigation report ("PSI") reflects that his Ohio Risk Assessment System score was high. Johnson's version of events as reflected in the PSI was as follows:

The defendant relayed the following concerning the instant offense: "I was driving and the police got behind me. I was a little drunk so I fled in the car, then hopped out on foot. I got away and ended up passing out at a friend's house. When I woke up I felt bad but didn't want to turn myself in so I ran until they finally caught up with me."

When questioned regarding case 16 CR 489B, the defendant relayed that he thought he had purchased ecstasy but later found that it was actually heroin and cocaine. He reported he was involved in a traffic stop in a car he was not the driver of and during the pat down they found the drugs on him. He reported that after he was charged with this offense he moved to Florida for approximately one year in an attempt to avoid consequences for his case.

The defendant reported he was finally served with arrest warrants for both cases in September at his mother's house.

{¶ 5} Each of Johnson's judgment entries of conviction provides that the court "considered the record, oral statements of counsel, the defendant's statement, and the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and then balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12." Johnson's judgment entry of conviction in Case No. 2017-CR-589 provides that the sentence for failure to comply with an order or signal of a police officer "must run consecutively to any other prison term imposed upon" Johnson, pursuant to R.C. 2929.331(D).

{¶ 6} Johnson asserts two assignments of error herein, which we will consider together. They are as follows:

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE PRISON TERMS

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO MAXIMUM PRISON TERMS.

{¶ 7} Johnson asserts that the trial court did not set forth any R.C. 2929.14(C)(4) analysis on the record during Johnson's disposition, but imposed a consecutive sentence nonetheless. "Further, the Trial Court imposed the maximum terms allowable for the possession of cocaine and failure to comply offenses."

{¶ 8} As this Court has previously noted:

A trial court has full authority to impose any authorized sentence, and the sentencing court is not required to articulate its findings or set forth its reasons for imposing a particular sentence. State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, the sentencing court must consider the R.C. 2929.11 and 2929.12 sentencing factors. 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.

Felony sentences are reviewed in accordance with R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 516. Based upon the plain language of R.C. 2953.08(G)(2) "an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Marcum at ¶ 1. "This is a very deferential standard of review, as the question is not whether the trial court had clear and convincing evidence to support its findings, but whether [the appellate court] clearly and convincingly find[s] that the record fails to support the trial court's findings. State v. Cochran, 2d Dist. Clark No. 2016-CA-33, 2017-Oho-217, ¶ 17.

State v. Skapik, 2d Dist. Champaign No. 2017-CA-16, 2018-Ohio-2661, ¶ 8-9.

{¶ 9} R.C. 2929.14(C)(4), to which Johnson directs our attention, provides:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 10} The court did not impose consecutive...