State v. Stotts , 2023 Ohio 1411 ( 2023 )

[Cite as State v. Stotts, 2023-Ohio-1411.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
WILLIAM STOTTS, : Case No. CT2022-0064
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2022-0212
JUDGMENT: Affirmed in part; Reversed in part
DATE OF JUDGMENT: April 27, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH CHRIS BRIGDON
Prosecuting Attorney 8138 Somerset Rd.
Muskingum County, Ohio Thornville, Ohio 43076
By: JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0064 2
Baldwin, J.
{¶1} Appellant William M Stotts appeals the order of the Muskingum County
Court of Common Pleas sentencing him to an aggregate prison term of seventy-two
months for the crimes of Trafficking in Drugs in violation of R.C. 2925.03(A)(2) a felony of
the third degree; Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C.
2923.16 (B); and Having a Weapon While under a Disability, a violation of R.C. 2923.13
(A) (3), a felony of the third degree. The State of Ohio is appellee.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Stotts was released from prison on post release control on December 24,
2021. On April 30, 2022, at approximately 3:00 a.m., Stotts was stopped by the
Muskingum County Sheriff’s office for a traffic violation. The officer noticed that Mr. Stotts
was wearing a handgun holster and asked whether he had a firearm in the vehicle. Stotts
admitted that he had a loaded gun and, when asked if there was anything illegal in the
vehicle, he admitted possessing methamphetamine. After searching the vehicle, the
deputy found a nine-millimeter handgun in a plastic bag with a substance that was later
determined to be methamphetamine. Scott also had $564.00 on his person. He admitted
possession of the methamphetamine and the hand gun and confessed that he sells drugs
to his friends and that he uses methamphetamine daily.
{¶3} Stotts was charged with seven offenses arising from his arrest. After plea
negotiations, the State agreed to dismiss four of the counts in exchange for a plea of
guilty to Trafficking in Drugs, a violation of R.C. 2925.03(A)(2), and a felony of the third
degree; Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C.
2923.16(B), a felony of the fourth degree and Having a Weapon under a Disability in
Muskingum County, Case No. CT2022-0064 3
violation of R.C.2923.13(A)(3) a felony of the third degree. The State and Stotts also
agreed to a joint recommendation of thirty-six months in prison.
{¶4} Stotts appeared before the court on August 14, 2022 for sentencing. After
reviewing the facts, the trial court rejected the joint recommendation and imposed an
aggregate sentence of seventy-two months, a fine of $5000 and ordered forfeiture of the
firearm and the vehicle that Stotts was driving at the time of the offense.
{¶5} Stotts filed a timely appeal and submitted two assignments of error:
{¶6} “I. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH O.R.C. § 2929.11 AND FACTORS TO BE
CONSIDRED(sic) IN O.R.C. § 2929.12.”
{¶7} “II. SHOULD THIS HONORABLE COURT SHOULD VACATE THE TRIAL
COURT'S DECISION TO IMPOSE CONSECUTIVE SENTENCES ON COUNTS 2-3
AND 5 BECAUSE THE CONSECUTIVE SENTENCES ARE IN CONTRAVENTION OF
THE SENTENCING STATUTES.”
STANDARD OF REVIEW
{¶8} 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. Revised Code 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.
Muskingum County, Case No. CT2022-0064 4
{¶9} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶10} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-
03-026, 2019-Ohio-4209, ¶ 36.
{¶11} The trial court must consider the purposes and factors contained in R.C.
2929.11 and 2929.12 but this Court has held that when the transcript of “the sentencing
hearing is silent as to whether the trial court considered the factors in R.C. 2929.11 and
2929.12” a presumption arises “that a trial court considered the factors contained in R.C.
2929.12.” State v. Hannah, 5th Dist. Richland No. 15-CA-1, 2015-Ohio-4438,
¶ 13. Accord State v. Tenney, 11th Dist. Ashtabula No. 2009-A-0015, 2010-Ohio-6248,
2010 WL 5289110, ¶ 14 and State v. Crawford, 5th Dist. Muskingum No. CT2021-0059,
2022-Ohio-3125, ¶ 18.
Muskingum County, Case No. CT2022-0064 5
ANALYSIS
I.
{¶12} In his first assignment of error, Stotts argues “the contrast between the joint
recommendation, which certainly was reasonably calculated by the parties to achieve the
principles of R.C. § 2929.11, is so great that the sentence was not "minimum sanctions"
in an effort to "accomplish those purposes of R.C. § 2929.11.” (Appellant’s brief, page 9).
He asked that we vacate the sentence and remand for resentencing.
{¶13} This court may modify Stotts’ sentence only if it “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.” Stotts does not argue that R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or
(C)(4), or 2929.20(I) apply, so we are restricted to consideration of whether the sentence
is otherwise contrary to law.
{¶14} The sentence imposed by the trial court for each charge is within the
statutory guidelines and Stotts does not assert a position to the contrary. Instead, he
contends that the trial court’s rejection of the jointly recommended sentence and
imposition of a significantly longer sentence is not supported by the record and shocks
the conscience. The Supreme Court of Ohio has made clear that R.C. 2953.08(G)(2) does
not permit “an appellate court to modify or vacate a sentence based on its view that the
sentence is not supported by the record under R.C. 2929.11 and 2929.12.” State v. Jones,
163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. For that reason, our authority to
modify the sentence would arise only if Stotts demonstrates by clear and convincing
evidence that the sentence is “otherwise contrary to law.”
Muskingum County, Case No. CT2022-0064 6
{¶15} Stotts relies on the Supreme Court of Ohio’s decision in State v. Hairston,
118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073 in which the defendant was
subject to an aggregate sentence of 134 years and complained that the sentence was “is
shocking to a reasonable person and to the community's sense of justice and thus is
grossly disproportionate to the totality of his crimes.” Id. at ¶ 15. The Court found that
“[b]ecause the individual sentences imposed by the court are within the range of penalties
authorized by the legislature, they are not grossly disproportionate or shocking to a
reasonable person or to the community's sense of justice * * *.” Id., at ⁋ 23.
{¶16} We reach the same conclusion in the case before us as each of Stotts’ terms
was within the statutory range and thus cannot be found to be grossly disproportionate or
shocking to a reasonable person or to the community's sense of justice. We also find that
the sentence is not otherwise contrary to law.
{¶17} Stotts also argues that the trial court neglected to consider R.C. 2929.12
during sentencing because there is “no indication that the trial court considered any
factors prescribed in R.C. § 2929.12(B)” and “no record that the factors in R.C.
§ 2929.12(C) were discussed.” (Appellant’s Brief, p. 11). Stotts does concede that his
presentence investigation report was considered by the court and that his counsel argued
that he showed “genuine remorse for the offense.” (R.C. 2929.12(E)(5)).
{¶18} In our review of the language of 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
Muskingum County, Case No. CT2022-0064 7
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, 2021
WL 3560891, ¶ 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, 2022 WL
4092532, ¶ 18.
{¶19} 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, 2019 WL 5092631, ¶ 17.
{¶20} The trial court was not obligated to describe its rational for the sentence on
the record or that it had considered the factors listed in R.C. 2929.12 and Stotts has
neither affirmatively shown that the factors were not considered.
{¶21} For those reasons, Stotts’ first assignment of error is denied.
II.
{¶22} In his second assignment of error, Stotts contends that the consecutive
sentences imposed upon him were contrary to law.
Muskingum County, Case No. CT2022-0064 8
{¶23} Revised Code Section 2929.14(C)(4) authorizes the trial court to impose
consecutive sentences but only if the court makes specific findings regarding the
offender’s conduct, the need to punish the offender, or the need to protect the public. “In
order to impose consecutive terms of imprisonment, a trial court is required to make the
findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry, but it has no obligation to state reasons to support its
findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
“[A] word-for-word recitation of the language of the statute is not required, and as long as
the reviewing court can discern that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶ 29.
{¶24} We have reviewed the sentencing transcript and the sentencing entry and
neither contain language that can reasonably be interpreted as language that would
satisfy the requirements of R.C. 2929.14(C)(4). The state contends that the record
contains facts that would support finding that the trial court “engaged in analysis of
required R.C. 2929.14(C)(4) findings” sufficient to support consecutive sentences
(Appellee’s brief, p. 3), but the Supreme Court of Ohio has made clear that the trial court
must make the findings on the record and in the judgment entry Bonnell, supra syllabus.
Neither the transcript of the sentencing hearing nor the sentencing entry contain findings
by the court that “* * * 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 * * *.” (R.C. 2929.14(C) (4)).
Muskingum County, Case No. CT2022-0064 9
{¶25} Because trial court did not make the necessary findings during the
sentencing hearing and incorporate them into its sentencing entry, we find the imposition
of consecutive sentences for Trafficking in Drugs in violation of R.C. 2925.03(A)(2)
Improper Handling of a Firearm in a Motor Vehicle in violation of R.C. 2923.16(B) was
error.
{¶26} The second assignment of error is well taken.
{¶27} The decision of the Muskingum County Court of Common Pleas is affirmed
in part and reversed in part. The trial court’s order that the sentences for Trafficking in
Drugs in violation of R.C. 2925.03(A)(2) Improper Handling of a Firearm in a Motor Vehicle
in violation of R.C. 2923.16(B) be served consecutively is reversed and this matter is
remanded for further proceedings consistent with this opinion.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.