State v. Miller , 2018 Ohio 3713 ( 2018 )

[Cite as State v. Miller, 2018-Ohio-3713.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-18-07
v.
KEITH L. MILLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 17-CRM-067
Judgment Affirmed
Date of Decision: September 17, 2018
APPEARANCES:
Bryan Scott Hicks for Appellant
Matthew K. Fox and Joshua A. Huhlenkamp for Appellee
Case No. 10-18-07
ZIMMERMAN, J.
{¶1} Defendant-Appellant Keith L. Miller (herein referred to as “Appellant”)
appeals the judgment of the Mercer County Common Pleas Court convicting him of
one count of Aggravated Possession of Drugs, in violation of R.C. 2925.11(A),
2929.11(C)(1)(a), and sentencing him to twelve (12) months of incarceration at the
Ohio Department of Rehabilitation and Corrections. On appeal, Appellant argues
that the trial court: 1) failed to give post release control warnings before accepting
Appellant’s plea; 2) failed to give adequate post release control warnings at
sentencing; 3) improperly considered the severity factors of the offense; 4) was
indecipherable on its recidivism analysis; and 5) stated that prison was not
appropriate but sentenced Appellant to prison. For the reasons that follow, we
overrule Appellant’s assignments of error and affirm the judgment of the Mercer
County Common Pleas Court.
Background
{¶2} On July 14, 2017, Appellant was indicted by the Mercer County Grand
Jury on one count of aggravated possession of drugs, a felony of the fifth degree, in
violation of R.C. 2925.11(A); 2929.11(C)(1)(a). (Doc. No. 1). On July 25, 2017,
Appellant was released by the trial court on an OR bond. (Doc. No. 7). As part of
his OR bond, Appellant was subject to the following conditions: 1) Do not consume
alcohol/drugs; 2) be subject to random testing; 3) do not violate any federal, state,
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or local laws; and 4) do not be in any establishment that serves alcohol by the drink.
(Doc. No. 7).
{¶3} On November 15, 2017, Appellant submitted to a drug test pursuant to
the terms of his bond and tested positive for Amphetamines, methamphetamines,
THC, and alcohol. (Doc. No. 32). As a result of failing his drug screen, Appellant’s
OR bond was revoked. (Id.). However, on December 13, 2017, the trial court
granted Appellant another OR bond, and added the following additional conditions
to its prior bond: 1) maintain residence at 900 South Elm Street, Celina, Ohio 45822;
and 2) obtain/maintain employment. (Doc. No. 40).
{¶4} On January 2, 2018, the State of Ohio filed a second request to revoke
Appellant’s bond, alleging that Appellant was arrested for domestic violence and
refused to submit to a drug/alcohol test at the time of that arrest. (Doc. No. 45).
Acting on the motion (to revoke Appellant’s bond), the trial court issued a bench
warrant for his arrest. (Doc. Nos. 46, 50). Appellant was arrested on January 5,
2018. (Doc. No. 50).
{¶5} On January 10, 2018, Appellant appeared before the trial court for a
change of plea hearing, changing his previous plea of “not guilty” to “guilty” to the
one count of aggravated possession of drugs. (Id.). At that hearing, a negotiated
plea agreement was submitted to the trial court. (Doc. No. 56). In the plea
agreement Appellant was informed that by pleading guilty he faced the potential of
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twelve (12) months in prison, a fine of $2,500, and a driver’s license suspension of
five (5) years. (Id.). The plea agreement also contained a paragraph advising
Appellant of the potential for post-release control (also known as “PRC”).
{¶6} The Appellant signed the plea agreement and a waiver of his
constitutional rights prior to entering his plea of guilty. (Doc. Nos. 55, 56). The
Appellant also represented to the trial court, in open court, that he understood the
waiver of his constitutional rights and the terms of the plea agreement. (Change of
Plea Hearing, 01/10/2018 Tr. at 11-12). Upon accepting the plea agreement and
waiver, the trial court found Appellant guilty of one count of aggravated possession
of drugs and continued the matter for sentencing. (Id. at 12; Doc. No. 60).
{¶7} On February 14, 2018, Appellant appeared for sentencing and was
sentenced by the trial court to twelve (12) months in prison and be subject to post
release control for a period of three years. (Doc. No. 65). Appellant timely
appealed, and presents the following assignments of error for review:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT FAILED TO GIVE POST RELEASE
CONTROL WARNINGS BEFORE ACCEPTING A PLEA.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT FAILED TO GIVE ADEQUATE POST
RELEASE CONTROL WARNINGS AT SENTENCING.
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ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT IMPROPERLY CONSIDERED THE
SEVERITY FACTORS OF THE OFFENSE.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT IS INDECIPHERABLE ON ITS
RECIDIVISM ANALYSIS.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT STATES THAT PRISON IS NOT
APPROPRIATE BUT THEN SENTENCES TO PRISON.
{¶8} For ease of analysis, we elect to discuss interrelated assignments of
error together.
Appellant’s First Assignment of Error
{¶9} In his first assignment of error, Appellant argues that the trial court did
not provide him with any post release control warnings before accepting his plea.
Specifically, Appellant argues that the trial court failed to substantially comply with
sentencing guidelines, rendering his plea invalid. For the reasons that follow, we
disagree.
Standard of Review
{¶10} Pursuant to Crim.R. 11(C), a guilty or no contest plea must be entered
knowingly, voluntarily, and intelligently. State v. Billenstein, 3rd Dist. Mercer No.
10-13-10, 2014-Ohio-255, ¶ 48. “Crim.R. 11(C) requires the trial judge, before
accepting a guilty or no contest plea in a felony case, to inform the defendant of
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several rights enumerated under the rule, making sure the defendant understands the
nature of those rights.” Id. citing State v. Stewart, 51 Ohio St. 2d, 86, 88, 364 N.E.2d
1163 (1977). A trial court’s failure to ensure that a plea has been entered knowingly,
voluntarily, and intelligently renders the plea unconstitutional. Id. citing State v.
Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450.
{¶11} “In determining whether the trial court has correctly followed the
requirements of Crim.R. 11(C), the reviewing court must find substantial
compliance.” State v. Moll, 3rd Dist. Defiance No. 4-14-17, 2015-Ohio-926, ¶ 10.
“‘Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving.’” Id. quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474(1990). “In order to prevail on a claim that a plea was not made knowingly,
voluntarily, and intelligently, the defendant must demonstrate a prejudicial effect.”
Id. “In order to demonstrate prejudice, the defendant must show that the plea would
not have been otherwise made.” Id.Analysis
{¶12} In our review of the transcript (of Appellant’s change of plea hearing),
we agree with Appellant that the trial court failed to advise him of post release
control. (See, Change of Plea Hearing, 01/10/2018 Tr.). Appellant argues that
because of such failure, his plea must be vacated. In support of this argument,
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Appellant directs us to the Ohio Supreme Court’s decision in State v. Sarkozy. In
Sarkozy, the trial court did not inform the defendant: 1) that post release control
would be part of the sentence imposed; 2) of the length of post release control; and
3) of the consequences for violating post release control. State v. Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 4. Sarkozy argued that his plea was
invalid because it was not made knowingly, voluntarily, and intelligently. Id. at ¶
6. Even though the appellate court found that the trial court substantially complied
with Crim.R. 11 in accepting the defendant’s plea, the Ohio Supreme Court
reversed, holding that the complete failure to advise a defendant that his sentence
will include a mandatory term of post release control requires that the reviewing
court must vacate the plea and remand the cause to the trial court. (Emphasis
added). Id. at ¶ 21; 25.
{¶13} The case before us is distinguishable from Sarkozy. Specifically, in
Sarkozy the defendant faced a mandatory period of post release control by pleading
guilty to three first-degree felony offenses. Id. at ¶ 11. However, in the case sub
judice, Appellant was facing a non-mandatory period of post release control by
pleading guilty to just one fifth-degree felony offense. (See, Doc. Nos. 1; 56). In
Sarkozy there was no mention of a plea colloquy or written plea agreement involving
the defendant. Here, the Appellant executed a “Waiver of Constitutional Rights
Prior to Entering a Plea of Guilty” (the “Waiver”) and a “Negotiated Plea
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Agreement” (the “Plea Agreement”) which contained the following notifications
regarding post release control:
Further, the undersigned Defendant in the above-captioned case,
being represented by counsel, by signing below certifies that he has
read this document and further does acknowledge notification,
knowledge, and understanding of the following components of
sentencing which shall apply if the Court determines at the sentencing
hearing that a prison term is necessary or required:
1. That the Court shall impose a state prison term;
2. That the Parole Board may extend the stated prison terms if the
Defendant commits any criminal offense under the law of this
State or the United States while serving the prison term, that the
extension will be done administratively as part of the
Defendant’s sentence in accordance with Section 2967.11 of the
Ohio Revised Code and may be for fifteen, thirty, sixty or ninety
days for each violation, that all extensions of any stated prison
term for all violations during the course of the term may not
exceed one-half of the term’s duration, and that the sentence so
imposed automatically includes any extension of the stated
prison term by the Parole Board;
3. That if the Defendant is being sentenced for a felony of the first
degree, or a felony of the second degree, for a felony sex offense,
as defined in Section 2967.28 of the Revised Code, or for a
felony of the third degree that is not a felony sex offense and in
the commission of which the Defendant caused or threated to
cause physical harm to a person, that a period of post-release
control pursuant to Section 2967.28 of the Revised Code will be
imposed following the Defendant’s release from prison;
4. That if the Defendant is being sentenced for a felony of the third,
fourth, or fifth degree that is not subject to Paragraph 3 above,
that a period of post-release control pursuant to Section 2967.28
of the Revised Code may be imposed following the Defendant’s
release from prison;
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5. That if a period of post-release control is imposed following the
Defendant’s release from prison as described above and if the
Defendant violates a post-release control sanction imposed as a
component of the post-release control including the mandatory
notice to the prosecuting attorney of pending release of prisoners
serving sentences for committing felonies of the first, second, or
third degree as described in the Ohio Revised Code Section
2967.121(A), all of the following apply:
a. The Adult Parole Authority or the Parole Board may
impose a more restrictive post-release control
sanction.
b. The Parole Board may increase the duration of the
post-release control subject to the specified
maximum.
c. The more restrictive sanction that the Parole Board
may impose may consist of a prison term, provided
that the prison term cannot exceed nine months for
each violation and the maximum cumulative prison
term so imposed for all violations during the period
of post-release control cannot exceed one-half of the
stated prison term originally imposed by the Trial
Court upon the Defendant.
d. If the violation of the sanction is a felony, the
Defendant may be prosecuted for the felony and in
addition to any sentence it imposes on the Defendant
for the new felony, the Court may impose a prison
term, subject to a specified maximum for the
violation.
(Doc. No. 55). At the end of the document, the final clause stated:
I further state that I understand the information given to me by the
Court, and with such knowledge and understanding I respectfully
request the Court to accept my plea of guilty to the above-described
charge(s).
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(Id.). Appellant’s signature is found below this paragraph at the end of the
document. (Id.).
{¶14} Furthermore, the Plea Agreement executed by Appellant in open court
contains the following post release control notification:
POST RELEASE CONTROL. In addition, a period of supervision
by the Adult Parole Authority after release from prison may be
mandatory in this case. If I am sentenced to prison for a felony 1 or
felony sex offense, after my prison release I will have a mandatory 5
years of post release control under conditions determined by the
Parole Board. If I am sentenced to prison for a felony 2 or 3 which
involved causing or threatening physical harm, I will have mandatory
post release control of 3 years. If I received prison for any other
felony 3, felony 4, or felony 5, I may be given up to 3 years of post
release control. A violation of post release control, rule or condition
can result in a more restrictive sanction while I am under post release
control AND/OR increased duration of supervision or control, up to
the maximum term, OR re-imbursement even though I have served
the entire state prison term imposed upon me by this Court for all
offenses. If I violate conditions of supervision while under post-
release control, the Parole Board could return me to prison for up to
nine months for each violation, for a total of ½ of my originally stated
prison term. If the violation is a new felony, I could receive a prison
term of greater of one year or the time remaining on post release
control, in addition to any other prison term imposed for the offense.
(Emphasis sic). (Doc. No. 56). Appellant’s signature also appears at the end of this
document. (Id.).
{¶15} At Appellant’s plea hearing, the trial court discussed the terms of the
Waiver and the Plea Agreement with Appellant. Specifically, the trial court
conducted the following inquiry with Appellant regarding the terms of the Plea
Agreement at the change of plea hearing:
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The Court: Mr. Miller, do you understand the terms of the
proposed plea agreement?
Appellant: Yes, Your Honor.
The Court: Is that your agreement as to how you want the Court
to proceed in your case?
Appellant: Yes, Your Honor.
(Change of Plea Hearing, 01/10/2018 Tr. at 4).
{¶16} Later in that hearing, the following discussion occurred in regards to
Appellant’s Waiver and Plea Agreement:
The Court: You have there at counsel table a written waiver of
constitutional rights. You’ve told me you want to waive those
rights. To memorialize that and make a record of it, if you’ll
review that with Mr. Luth [Appellant’s trial counsel], he will
indicate when you’ve signed it, so the Court may proceed.
Q. (Questioning by Mr. Luth) Mr. Miller, do you understand all
the rights explained to you by Judge Ingraham today?
A. Yes.
***
Q. Is it your decision then to waive the constitutional rights and
go forward?
A. Yes.
Q. If that’s true, sign the paper. And then also we have what is
known as a waiver of constitutional rights that you signed,
correct?
A. Yes.
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Q. Any questions about that waiver?
A. No, sir.
Q. Then we have also the negotiated plea agreement. You
understand all the terms of the plea agreement?
A. Yes.
(Id. at 11-12).
{¶17} Given the foregoing, we find that the case before us is distinguishable
from Sarkozy because the Appellant not only indicated in writing that he understood
the terms of post release control (as set forth in the Waiver and the Plea Agreement)
but also because he told the trial court that he understood all of his rights and all of
the terms in the plea agreement. Thus, under the totality of the circumstances, we
find that the trial court substantially complied with Crim.R. 11(C) and that
Appellant’s plea was made knowingly, voluntarily, and intelligently.
{¶18} Moreover, we note that this decision is consistent with the Second
District Court of Appeal’s recent decision in State v. Camp. State v. Camp, 2nd Dist.
Clark No. 2017-CA-73, 2018-Ohio-2964. Akin to the case sub judice, Camp was
not orally advised of post release control during his change of plea hearing. Id. at ¶
3. Unlike Appellant, Camp faced a mandatory period of post release control for his
first and third degree felony convictions. Id. Nevertheless, the Second District
Court of Appeals found that the trial court substantially complied with Crim.R.
11(C), given the signed plea form (containing post release control warnings) and
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Camp’s representation to the trial court that he understood the terms in the plea
agreement. Id. at ¶ 3-4, 16.
{¶19} Finally, we are cognizant of the fact that Appellant does not argue that
he would not have entered his guilty plea if he had been orally advised regarding
the terms of post-release control of the consequences for violating post release
control. Thus, Appellant cannot demonstrate a prejudicial effect. As the record
reveals substantial compliance with Crim.R. 11(C), Appellant’s first assignment of
error is overruled.
Appellant’s Second Assignment of Error
{¶20} In his second assignment of error, Appellant argues that the trial court
failed to give adequate post release control warnings at sentencing. Further,
Appellant argues that because the trial court gave “inaccurate” and “incomplete”
post release control warnings, his sentence is void and a new sentencing hearing is
required. For the reasons that follow, we disagree.
Standard of Review
{¶21} “Post[]release control is a period of supervision that occurs after a
prisoner has served his or her prison sentence and is released from incarceration,
during which the individual is subject to specific sanctions with which he or she
must comply.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d
462, ¶ 35. “‘A trial court has a statutory duty to provide notice of post[]release
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control at the sentencing hearing.’” State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 8 quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-
6085, 817 N.E.2d 864, ¶ 23, superseded by statute as stated in State v. Singleton,
124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶¶ 22-23. A sentence
imposed without post release control notifications is contrary to law. Id. As a trial
court speaks through its journal entry, it is required to incorporate notice into its
journal entry imposing sentence. Id. When a judge fails to impose statutorily
mandated post-release control as part of a defendant’s sentence, that part of the
sentence is void and must be set aside. State v. Leugers, 3rd Dist. Allen No. 1-18-
10, 2018-Ohio-2808, ¶ 6.
Analysis
{¶22} Pursuant to R.C. 2929.19(B)(2)(d), an offender must be notified at
sentencing that he “may” be supervised under R.C. 2967.28 after he leaves prison
if the offender is being sentenced for a felony. Grimes at ¶ 9. An offender “may”
be supervised if he or she has been convicted of a less serious felony for which the
Adult Parole Authority has discretion to impose post release control. Id.; see also
R.C. 2929.19(B)(2)(d) and 2967.28(C). Additionally, the trial court must notify the
offender at the sentencing hearing that if he or she violates the supervision, the
parole board may impose a prison term of up to one-half of the stated prison term
originally imposed upon the offender as part of his or her sentence. Id.-14-
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{¶23} Our review of the record reveals that the trial court issued the
following advisement to the Appellant at the sentencing hearing:
The Court: Then the Court is going to impose a prison term of 12
months, * * * with notice that you could be placed under
community – post-release control when you finish that prison
term. And, if you are and violate post-release control, you could
be returned to prison for up to one half of that 12-month sentence
or an additional six months.
(Sentencing, 02/14/2018 Tr. at 6). And, when the State asked the trial court (at the
hearing) what the length of post release control would be, the trial court declared
that the period of post release control could be up to three (3) years. (Id. at 7).
{¶24} The trial court incorporated this warning into Appellant’s sentencing
entry, which provided as follows:
The Court informed the offender that upon release from prison, the
offender may be required to serve a discretionary Three (3) year
period of post-release control pursuant to R.C. 2967.28 under the
supervision of the parole board. For violation of post release control
conditions, the Adult Parole Authority or Parole Board could under
R.C. 2967.28(F)(3) impose a more restrictive or longer control
sanction up to the maximum post-release control sanction authorized
for such offense, or return defendant to prison for up to Six 6 months
(50% of the sentence imposed by the Court). If the violation is a
felony, it may also be prosecuted. In addition to any sentence the
Court imposed for a new felony, the Court may also impose a prison
term, subject to a specified maximum, for the violation.
(Emphasis sic). (Doc. No. 65).
{¶25} Appellant argues that the trial court failed to orally advise him, at the
sentencing hearing, that if he were to be placed on post release control and if he
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committed a new felony, he could be subject to a sanction of up to twelve (12)
months or whatever time was remaining of the three years, whichever was greater,
and that any time imposed would be mandatorily consecutive to any prison time on
the new felony.
{¶26} The record before us demonstrates that the Appellant was notified at
sentencing: 1) that he could be placed on post release control when he completed
his prison sentence; and 2) that if he violated post release control, he could be
returned to prison for six months, or one half of his original prison sentence. And,
consistent with Grimes, Appellant received the requisite notifications when he was
sentenced and such notifications were incorporated into the trial court’s sentencing
entry. As stated in Grimes, the “preeminent purpose of R.C. 2967.28” is to notify
“offenders subject to post release control [***] at sentencing that their liberty could
continue to be restrained after serving their initial sentence,” and we conclude that
the trial court accomplished this primary purpose of notice in Appellant’s case. See
generally, Grimes at ¶ 14 citing Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-
5082, 857 N.E.2d 78, ¶ 52. Thus, we overrule Appellant’s second assignment of
error.
Appellant’s Third & Fifth Assignment of Error
{¶27} In his third assignment of error, Appellant argues that the trial court
improperly considered the severity factors of the offense. Specifically, Appellant
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argues that trial court committed reversible error in finding that his conviction for
aggravated possession of drugs was part of an organized criminal activity. In his
fifth assignment of error, Appellant argues that his sentence is contrary to law
because the trial court found that a prison term was not consistent with the principles
and purposes of sentencing and then imposed the maximum prison sentence. For
the reasons that follow, we disagree.
Standard of Review
{¶28} “In reviewing the sentencing decision of a trial court, an appellate
court must ‘review the factual findings of the trial court under R.C. 2953.08(G)’s
‘clear and convincing’ standard, and that the appellate record is not complete until
such findings have been made.’” (Emphasis sic). State v. Woodruff, 3rd Dist. Union
No. 14-04-07, 2004-Ohio-3547, ¶ 4 quoting State v. Martin, 136 Ohio App.3d 355,
361, 1999-Ohio-814, 736 N.E.2d 907. A sentence will not be disturbed on appeal
“absent a showing by clear and convincing evidence that the trial court committed
one of the errors described by R.C. 2953.08(G): the sentence is unsupported by the
record; the procedure of the sentencing statutes was not followed or there was not a
sufficient basis for the imposition of a prison term; or that the sentence is contrary
to law.” Id.{¶29} “In determining what sentence to impose upon a defendant, a trial
court is ‘granted broad discretion in determining the most effective way to uphold’
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the two overriding purposes of felony sentencing: ‘to protect the public from future
crime and to punish the offender.’” Id. at ¶ 5 quoting State v. Avery, 126 Ohio
App.3d 36, 50, 709 N.E.2d 875 (3rd Dist.1998). “However, although the Revised
Code provides discretion to a trial court in determining the most effective way to
comply with the purposes and principles of sentencing, in exercising that discretion,
a trial court must comply with the various sentencing statutes.” Id. “In accordance
with these statutes, trial courts are required ‘to make various findings before
properly imposing a felony sentence.’” Id. quoting State v. Alberty, 3rd Dist. Allen
No. 1-99-84, 2000-Ohio-1671, * 2. “[T]he trial court’s findings under R.C.
2929.03, 2929.04, 2929.11, 2929.12, 2929.14, and 2929.19, in effect, determine a
particular sentence, and a sentence unsupported by these findings is both incomplete
and invalid.” Id.Severity Factors Analysis
{¶30} At the outset, we note that “[t]he defendant bears the burden of
showing by clear and convincing evidence that the trial court’s sentencing is not
supported by the record or is contrary to law.” State v. Ramos, 3rd Dist. Defiance
No. 4-06-24, 2007-Ohio-767, ¶ 18. To meet this burden, Appellant argues that the
trial court erroneously found that his aggravated possession of drugs conviction
qualified as “organized criminal activity.” Appellant directs us to the transcript of
the sentencing hearing, wherein the trial court found that the Appellant “committed
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this offense [aggravated possession of drugs] as part of organized criminal activity.”
(Sentencing, 02/14/2018 Tr. at 4). Appellant further directs us to the trial court’s
sentencing entry, which stated:
Pursuant to R.C. 2929.12(B), the Court considered the following
factors which it determined applied, indicating that the defendant’s
conduct is more serious than the conduct normally constituting the
offense:
The offender committed the offense for hire or as part of organized
criminal activity.
(Emphasis sic). (Doc. No. 65).
{¶31} Lastly, Appellant directs us to our previous decision in State v.
Woodruff, wherein we held that definition of “organized criminal activity” provided
in R.C. 177.01(E)(1) specifically excluded a minor drug possession offense.
Woodruff, at ¶ 11. And, because the organized criminal activity finding was the
only factor under the “more serious” findings of the trial court, Appellant asserts
that the trial court imposed a sentence contrary to law. We disagree.
{¶32} Unlike the defendant in Woodruff, the trial court here made additional
findings to support its imposition of the maximum prison term for Appellant’s
conviction. Specifically, the trial court found:
Trial Court: Court acknowledges this is a felony five internal
possession case, however, the Defendant [Appellant] is prison
eligible, since he violated the terms and conditions of his bond twice
and had his bond revoked for having done so, and this was part of
organized criminal activity.
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(Emphasis added). (Sentencing, 02/14/2018 Tr. at 4). Even though the trial court
may have over-reached in finding that Appellant committed his offense as part of
organized criminal activity, the record reveals that the trial court made additional
findings supporting its sentence. Moreover, the record demonstrates that during the
pendency of his case, Appellant violated the terms of his bond twice, testing positive
for illegal drugs once, and was arrested for domestic violence once. (See, Doc. Nos.
32; 45). As such, we find that the trial court exercised its discretion in its sentence
of the Appellant and any reference that the Appellant being a part of “organized
criminal activity” was harmless error.1
{¶33} Accordingly, Appellant has not carried his burden of showing by clear
and convincing evidence that the trial court’s sentence was not supported by the
record or was contrary to law, and we overrule the third assignment of error.
Imposition of a Prison Sentence Analysis
{¶34} In his fifth assignment of error, Appellant asserts that the trial court
erred by sentencing him to prison despite its finding that prison was not consistent
with the purposes and principles of R.C. 2929.11. We disagree.
{¶35} When reviewing the trial court’s findings in context with the entire
sentencing hearing, we find the prison sentence imposed was not contrary to law.
1
A harmless error is any error, defect, irregularity, or variance which not does not affect substantial right.
State v. Wilson, 3rd Dist. Allen No. 1-09-53, 2010-Ohio-2947, ¶ 26; Crim.R. 52(A). Furthermore, a harmless
error does not affect the outcome of the case and, thus, does not warrant a judgment to be overturned or set
aside. Id.-20-
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Specifically, the trial court issued the following statement at Appellant’s sentencing
hearing:
The Court: Mr. Miller, with your lack of prior felony conduct,
the Court believes that a prison term is not consistent with the
purposes and principles of Ohio Revised Code Section 2929.11. In
light of your underlying conduct that brought about this offense,
the Court’s concern is, and as the law supports, you weren’t able
to comply with the terms and conditions of your bond while this
case was pending, to the extent that you violated the terms and
conditions of your bond twice.
(Sentencing, 02/14/2018 Tr. at 5-6).
{¶36} “R.C. 2929.13(B)(1)(b) gives trial courts discretion to impose a prison
sentence if any of the criteria in R.C. 2929.13(B)(1)(b)(i)-(xi) apply.” State v.
Winstead, 2nd Dist. Greene No. 2015-CA-13, 2015-Ohio-5391, 55 N.E.3d 447, ¶
15. One of the criteria under R.C. 2929.13(B)(1)(b) is that “[t]he offender violated
a term of the conditions of bond as set by the court.” Id. quoting R.C.
2929.13(B)(1)(b)(iii).
{¶37} Given his multiple bond violations while his case was pending, we
find Appellant’s argument disingenuous that the trial court’s sentence was not
consistent with the principles and purposes of R.C. 2929.11. Even though Appellant
did not have a prior felony record, it is questionable that Appellant would be
amenable to community control sanctions due to his conduct while his case was
pending. Furthermore, when Appellant was given the opportunity to explain his
multiple bond violations, he failed to respond. (Id. at 6). Since the trial court was
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in the better position to judge the defendant’s likelihood of recidivism, we will not
disturb that judgment on appeal. See, State v. Parson, 3rd Dist. Auglaize No. 2-10-
27, 2011-Ohio-168, ¶ 14 (holding that the trial court is in the better position to judge
the defendant’s likelihood of recidivism).
{¶38} Because there is clear and convincing evidence in the record
supporting the trial court’s prison sentence of the Appellant, we overrule the fifth
assignment of error.
Appellant’s Fourth Assignment of Error
{¶39} In his fourth assignment of error, Appellant argues that the trial court
was indecipherable on its recidivism analysis. Specifically, Appellant asserts that
the trial court found that Appellant had been adjudicated a delinquent, and then
subsequently found that Appellant had not been adjudicated a delinquent. For the
reasons that follow, we overrule Appellant’s fourth assignment of error.
Standard of Review
{¶40} “In general, ‘a court speaks only through its journal entries.’” Wootten
v. Culp, 4th Dist. Adams No. 16CA1026, 2017-Ohio-665, 85 N.E.3d 198, ¶ 34
quoting Infinite Sec. Sols., L.L.C. v. Karam Properties, II, Ltd., 143 Ohio St.3d 346,
2015-Ohio-1101, 37 N.E.3d 1211, ¶ 29. “‘Neither the parties nor a reviewing court
should have to review the trial court record to determine the court’s intentions;
rather, the entry must reflect the trial court’s action in clear and succinct terms.’”
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Id. quoting Infinite Sec. Sols. at ¶ 29. However, “‘although a court generally speaks
only through its journal entries, the reviewing court must examine the entire entry
and proceedings when it is in the interest of justice to ascertain the grounds upon
which a judgment is rendered.’” Id. quoting State v. Nguyen, 4th Dist. Athens No.
14CA42, 2015-Ohio-4414. ¶ 28.
Analysis
{¶41} At the outset, we note App.R. 16(A)(7) states:
(A) Brief of the Appellant. The appellant shall include in its brief,
under the headings and in the order indicated, all of the following:
***
(7) An argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities,
statutes, and parts of the record on which appellant relies. The
argument may be preceded by a summary.
(Emphasis added). App.R. 16(A)(7).
{¶42} Even though Appellant directs us to the trial court’s Sentencing Entry,
by reciting the findings of the trial court made under R.C. 2929.12(D), he failed to
provide us with any authority to support his proposition that the trial court was
“indecipherable” on its recidivism analysis. Additionally, Appellant presents no
legal solution for the trial court’s proposed error. Thus, we find that the Appellant
has failed to present a legal argument in this assignment, rendering this assignment
of error a nullity pursuant to App.R. 12(A)(2).
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{¶43} Nonetheless, assuming arguendo that Appellant did comply with the
Appellate Rules, his “indecipherable” argument is without merit. Specifically,
Appellant asserts that the following portion of his sentencing entry is
indecipherable:
Pursuant to R.C. 2929.12(D), the Court considered the following
factors it determined applied, indicating that the defendant is likely to
commit future crimes:
The offender previously was adjudicated a delinquent child pursuant
to Chapter 2151. [sic] of the Revised Code prior to January 1, 2002 or
the offender has a history of criminal convictions.
Pursuant to R.C. 2929.12(E), the Court considered the following
actors it determined applied, indicating that the defendant is unlikely
to commit future crimes:
Prior to committing the offense, the offender had not been adjudicated
a delinquent child.
(Emphasis sic; emphasis added). (J. Entry Sentencing, Doc. No. 65). Our plain
reading of the sentencing entry reveals that the trial court did not find that Appellant
had been adjudicated a delinquent; rather, the trial court found that Appellant had a
history of criminal convictions, but had not been adjudicated a delinquent child,
given the “or” contained in the entry. Thus, the trial court’s entry reflects the trial
court’s intentions.
{¶44} Nevertheless, even if the entry was not clear on its face, the finding
was supported by the trial court’s findings at Appellant’s sentencing hearing.
Specifically, the trial court found:
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Trial Court: * * * [T]he Court will state its preliminary findings
with regard to the sentencing factors that the law requires that
the Court consider pursuant to Section 2929.12 of the Ohio
Revised Code, specifically including that with regard to the
relative seriousness of the offense. Mr. Miller * * * has a history
of criminal convictions, but not prior delinquencies.
(Sentencing, 02/14/2018 Tr. at 4). Thus, the trial court consistently found that
Appellant had a history of criminal convictions, but no prior delinquencies when
conducting its recidivism analysis.
{¶45} Based on the plain language contained in Appellant’s sentencing
entry, and the recitation of recidivism findings at sentencing, the trial court was not
“indecipherable” in its recidivism analysis, and we overrule Appellant’s fourth
assignment of error.
Conclusion
{¶46} Having found no error prejudicial to the Appellant here in the
particulars assigned and argued, we overrule Appellant’s first, second, third, fourth,
and fifth assignments of error and affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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