State v. West

1

2022-Ohio-4069

STATE OF OHIO, PLAINTIFF-APPELLEE, v. ALYSSA D. WEST, DEFENDANT-APPELLANT.

No. 13-22-07

Court of Appeals of Ohio, Third District, Seneca

November 14, 2022

Appeal from Seneca County Common Pleas Court Trial Court No. 21 CR 0140

Judgment Affirmed

James J. Whitfield for Appellant

Angela M. Boes for Appellee

OPINION

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Alyssa D. West ("West") appeals the April 22, 2022 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm.

{¶2} On August 26, 2021, the Seneca County Grand Jury indicted West on Count One of felonious assault in violation of R.C 2903.11(A)(2), (D)(1)(a), a second-degree felony, and Count Two of tampering with evidence in violation of R.C 2921.12(A)(1), (B), a third-degree felony. On August 30, 2021, West appeared for arraignment and entered pleas of not guilty to the counts alleged in the indictment.

{¶3} On March 15, 2022, West withdrew her pleas of not guilty and entered guilty pleas, under a negotiated-plea agreement, to the counts alleged in the indictment. In exchange for her change of pleas, the State agreed to a sentencing recommendation. The trial court accepted West's guilty pleas, found her guilty, and ordered a pre-sentence investigation.

{¶4} On April 21, 2022, the trial court sentenced West to a minimum term of four years in prison to a maximum term of six years in prison on Count One and to 18 months in prison on Count Two. (Doc. Nos. 48-49).^[1] The trial court ordered West to serve the prison terms concurrently. The trial court further ordered that West pay the costs of prosecution and $4,619.90 in restitution. Importantly, the trial court ordered West to begin making payments toward her restitution within 30 days from the date of the judgment entry of sentence and to pay the costs of prosecution within one year.

{¶5} On May 13, 2022, West filed her notice of appeal. She raises two assignments of error for our review, which we will discuss together.

Assignment of Error No. I

The Sentence Imposed By the Trial Court is Inconsistent With the Principles and Purposes of Sentencing Under the Ohio Revised Code and Therefore is Contrary to Law.

Assignment of Error No. II

The Trial Court Erred by Assessing Restitution and Costs Without Conducting an Ability to Pay Hearing.

{¶6} In her first assignment of error, West argues the record does not support the trial court's sentence. Specifically, West contends that her sentence is contrary to law because the trial court failed to consider the purposes and principles of felony sentencing when imposing her sentence. In her second assignment of error, West argues that it was error for the trial court to impose the costs of prosecution and restitution without considering her ability to pay.

Standard of Review

{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence "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." State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that "'which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.'" Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶8} Furthermore, we review the imposition of costs and restitution under R.C. 2953.08(G)(2). State v. Jordan, 6th Dist. Lucas No. L-19-1165, 2021-Ohio-333, ¶ 7 (asserting that "'the proper standard of review for analyzing the imposition of restitution as part of a felony sentence is whether the sentence complies with R.C. 2953.08(G)(2)(b)'"), quoting State v. Young, 6th Dist. Lucas No. L-19-1189, 2020-Ohio-4943, ¶ 11; State v. Long, 11th Dist. Geauga No. 2020-G-0260, 2021-Ohio-1059, ¶ 15 ("Since the enactment of H.B. 86, however, we review felony sentences, which include restitution orders, pursuant to R.C. 2953.08(G)(2)."), citing State v. Ciresi, 11th Dist. Geauga No, 2020-G-0249, 2020-Ohio-5305, ¶ 5 (overruling previous cases holding that restitution orders are reviewed for an abuse of discretion) and State v. Mazzola, 11th Dist. Trumbull No. 2018-T-0029, 2019-Ohio-845, ¶ 19, fn. 1.

Analysis

{¶9} First, we will address West's argument challenging the prison sentence imposed by the trial court for her felonious-assault and tampering-with-evidence convictions.

{¶10} "It is well-established that the statutes governing felony sentencing no longer require the trial court to make certain findings before imposing a maximum sentence." State v. Maggette, 3d Dist. Seneca No. 13-16-06 2016-Ohio-5554, ¶ 29, citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14 ("Unlike consecutive sentences, the trial court was not required to make any particular 'findings' to justify maximum prison sentences.") and State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 9 ("The law no longer requires the trial court to make certain findings before imposing a maximum sentence."). Rather, "'trial courts have full discretion to impose any sentence within the statutory range.'" State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 10, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20.

{¶11} In this case, as a second-degree felony, felonious assault carries a non-mandatory, indefinite sanction of two-years to eight-years of imprisonment. R.C. 2903.11(A)(2), (D)(1)(a), 2929.14(A)(2)(a), and 2929.144(B)(1). See also R.C. 2929.13(F). Further, as a third-degree felony, tampering with evidence carries a non-mandatory, definite sanction of 9-months to 36-months imprisonment. R.C. 2921.12(A)(1), (B), and 2929.14(3)(a). See also R.C. 2929.13(F).

{¶12} "[A] sentence imposed within the statutory range is 'presumptively valid' if the [trial] court considered applicable sentencing factors." Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15. Because the trial court sentenced West to a minimum term of four years in prison to a maximum term of six years in prison as to her felonious-assault conviction, the trial court's sentence as to that conviction is within the statutory range and is appropriately calculated. Likewise, because the trial court sentenced West to 18 months in prison as to her tampering-with-evidence conviction, the trial court's sentence as to that conviction falls within the statutory range.

{¶13} R.C. 2929.11 provides, in in pertinent part, that the

overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and 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). "In advancing these purposes, sentencing courts are instructed to '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.'" Smith, 2015-Ohio-4225, at ¶ 10, quoting R.C. 2929.11(A). "Meanwhile, R.C. 2929.11(B) states that felony sentences must be 'commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim' and also be consistent with sentences imposed in similar cases." Id., quoting R.C. 2929.11(B). "In accordance with these principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender's conduct and the likelihood of the offender's recidivism." Id., citing R.C. 2929.12(A). "'A sentencing court has broad discretion to determine the relative weight to assign the sentencing factors in R.C. 2929.12." Id. at ¶ 15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).

{¶14} "Although the trial court must consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C. 2929.12, the sentencing court is not required to 'state on the record that it considered the statutory criteria or discuss[ed] them.'" Maggette at ¶ 32, quoting State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995). "A trial court's statement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes." Id., citing State v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18.

{¶15} At West's sentencing hearing and in its sentencing entry, the trial court considered the R.C. 2929.11 and 2929.12 factors. (Apr. 21, 2022 Tr. at 89); (Doc. Nos. 48-49). Nevertheless, West contends that the trial court abused its discretion by imposing a four-year prison sentence because "many of the recidivism and seriousness of the crime factors that the statute provides to guide the courts lend themselves to the notion that Ms. West does not require a minimum of four years to effectuate the purposes of sentencing." (Appellant's Brief at 4). Specifically, West contends that her sentence is contrary to law because it "is clearly more of a hindrance than a promotion of rehabilitation" and because it is "excessive in terms of punishment and to the extent that it was necessary to protect the public from future crime." (Id. at 5).

{¶16} West's argument is...