State v. Richardson , 2023 Ohio 1650 ( 2023 )

[Cite as State v. Richardson, 2023-Ohio-1650.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2022-0073
:
DERRICK RICHARDSON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2022-0228
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 16, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RON WELCH CHRIS BRIGDON
MUSKINGUM COUNTY PROSECUTOR 8138 Somerset Rd.
Thornville, OH 43076
JOHN CONNOR DEVER
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702
Muskingum County, Case No. CT2022-0073 2
Delaney, J.
{¶1} Defendant-Appellant Derrick Richardson appeals the September 15, 2022
sentencing entry of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is
the State of Ohio.
FACTS AND PROCEDURAL HISTORY
Indictment
{¶2} On May 18, 2021, Defendant-Appellant Derrick Richardson was indicted by
the Muskingum County Grand Jury on one count of corrupting another with drugs, a
second-degree felony in violation of R.C. 2925.02(A)(3); one count of corrupting another
with drugs, a second-degree felony in violation of R.C. 2925.02(A)(4)(a); one count of
possession of drugs (fentanyl-related compound), a fifth-degree felony in violation of R.C.
2925.11(A); one count of tampering with evidence, a third-degree felony in violation of
R.C. 2921.12(A)(1); and one count of endangering children, a third-degree felony in
violation of R.C. 2919.22(A). Richardson entered a not guilty plea to the charges in Case
No. CR2022-0228.
Change of Plea
{¶3} Pursuant to the change of plea hearing held on August 8, 2022, Richardson
entered into a plea agreement with the State where he withdrew his not guilty plea and
entered a guilty plea to Count Three, possession of drugs (fentanyl-related compound);
Count Four, tampering with evidence; and Count Five, endangering children. The State
agreed to dismiss Counts One and Two at the time of sentencing. (T. 3). The parties
agreed to a joint recommendation that Richardson be sentenced to five years in prison
and stipulated to the judicial findings necessary for the imposition of consecutive
Muskingum County, Case No. CT2022-0073 3
sentences. (T. 4). The State agreed to defer to the trial court on Richardson’s current post
release control. (T. 4).
{¶4} During the plea colloquy, Richardson acknowledged that he was on post
release control and that a plea of guilty and a finding of guilty could lead to a violation and
termination of his post release control. (T. 6). He also acknowledged that if the trial court
terminated his post release control, any prison time imposed would be mandatorily
consecutive to any prison time imposed in the present case. (T. 7).
{¶5} The State recited the underlying facts leading to the indictment. On March
29, 2022, EMS and police were dispatched to a residence in Muskingum County based
on a report that an infant just over one year of age had potentially ingested fentanyl. (T.
13). The infant was in distress when the paramedics arrived and was administered
NARCAN. (T. 13). After the infant was transported to the hospital, lab tests showed the
infant had 4.4 nanograms per milliliter of fentanyl in her blood system. (T. 13).
{¶6} Upon investigation, the woman indicted on charges with Richardson
indicated that there was a plastic baggy with teeth marks in the living room. The police
discovered text messages on Richardson’s cell phone regarding either selling or
purchasing fentanyl. After being confronted with evidence from the investigation,
Richardson admitted that he had what he believed to be some pills in his pocket. He saw
the child chewing on the baggy that he said probably fell out of his pocket. He saw the
baggy with chew marks on it and that the child turned blue. He took the baggy away from
her and disposed of the pills in the toilet before the police arrived. (T. 14).
Muskingum County, Case No. CT2022-0073 4
{¶7} The trial court accepted Richardson’s pleas of guilty and found him guilty
with regard to each of the counts. The trial court ordered a presentence investigation and
set the matter for a sentencing hearing. (T. 15).
Sentencing Hearing
{¶8} Richardson appeared for the sentencing hearing on September 12, 2022.
Prior to the trial court’s imposition of sentence, Richardson entered a plea of guilty to a
charge of aggravated menacing, a fifth-degree felony in violation of R.C. 2903.21(C), in
Muskingum County Court of Common Pleas Case No. CR2022-0431. (T. 3). In exchange
for Richardson’s plea of guilty, the parties agreed to a joint recommendation that
Richardson be sentenced to six months in prison, to be served consecutively to the
sentence imposed in Case No. CR2022-0228. (T. 4). The parties also stipulated to the
judicial findings necessary for the imposition of consecutive sentences. (T. 4). The trial
court engaged in the plea colloquy and accepted Richardson’s plea in Case No. CR2022-
0431. (T. 14).
{¶9} The trial court next stated it had thoroughly reviewed Richardson’s
presentence investigation report. (T. 21). The trial court discussed with Richardson his
prior felony conviction and multiple misdemeanor convictions. (T. 25, 27). Richardson
served a prison term from age 17 to 24. His parole officer stated in the presentence
investigation report that Richardson had no regard for supervision and violated nearly
every sanction of post release control. (T. 26). Richardson’s institutional summary report
stated that he had 60 write-ups during his time in prison. His security level was increased
several times and he was moved to three prisons. (T. 27-28).
Muskingum County, Case No. CT2022-0073 5
{¶10} When asked about the events of March 29, 2022, Richardson stated there
was no fentanyl in the home even though the child was found in respiratory distress, and
both Richardson and the child tested positive for fentanyl. (T. 22-23). The trial court
reviewed the text messages on Richardson’s cell phone where Richardson had asked to
purchase fentanyl and cocaine, causing the police to investigate Richardson after the
child ingested fentanyl. The text messages referred to “fetty,” which Richardson claimed
to the trial court referred to “fettuccine” or “the use of money.” (T. 23).
{¶11} The trial court sentenced Richardson to serve the following prison term:
Count Three: a stated prison term of 12 months;
Count Four: a stated prison term of 36 months; and
Count Five: a stated prison term of 36 months.
{¶12} The counts were to be served consecutively for an aggregate prison term
of 84 months. The trial court sentenced Richardson to six months in prison in Case No.
CR2022-0431, which would be served consecutively. It found that consecutive sentences
were necessary to protect the public and punish the offender, and consecutive sentences
were not disproportionate to the seriousness of the conduct and the danger posed to the
public. Also, Richardson’s history of criminal conduct demonstrated consecutive
sentences were necessary to protect the public from future crime. (T. 31).
{¶13} The trial court further found that Richardson was on post release control in
Franklin County Common Pleas Court Case No. 18CR6305. The trial court found
Richardson was no longer amenable to post release control and terminated the same. It
imposed the remainder of the time left on post release control to be served in prison,
consecutively to the 84-month prison term.
Muskingum County, Case No. CT2022-0073 6
{¶14} It is from this sentencing that Richardson now appeals.
ASSIGNMENT OF ERROR
{¶15} Richardson raises one Assignment of Error:
{¶16} “I. SHOULD THIS COURT REVERSE THE TRIAL COURT’S DECISION
TO IMPOSE A MAXIMUM SENTENCE ON EACH COUNT IN CASE CR2022-0228 TO
RUN CONSECUTIVE; AND, ON CASE CR2022-0431 A 6 MONTH SENTENCE TO RUN
CONSECUTIVE TO CASE 0228, PLUS AN ADDITIONAL 1 YEAR OF PRC TIME;
BECAUSE, THE SENTENCE WAS IN CONTRAVENTION OF THE SENTENCING
STATUTES R.C. §2929.11 AND R.C. §2929.12?”
ANALYSIS
{¶17} In his sole Assignment of Error, Richardson contends the trial court erred
as a matter of law as to sentencing. Specifically, Richardson asserts the trial court failed
to properly consider the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12.
We disagree.
{¶18} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Davis, 5th Dist. Tuscarawas No. 2021 AP 12 0034, 2022-Ohio-2397,
2022 WL 2678616, ¶ 9 citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049,
¶31. R.C. 2953.08(G)(2) provides that 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
Muskingum County, Case No. CT2022-0073 7
law. Davis, 2022-Ohio-2397, ¶ 9; See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.2d 659, ¶ 28.
{¶19} R.C. 2953.08(G)(2)(b) does not provide a basis for 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, ¶ 39. The Ohio Supreme Court further elucidated in State v. Toles,
166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,
precludes second-guessing a sentence imposed by the trial court based on its weighing
of the considerations in R.C. 2929.11 and 2929.12.”
{¶20} In State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, the
Ohio Supreme Court clarified its holding in State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649:
The narrow holding in Jones is that R.C. 2953.08(G)(2) does not allow 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.
See Jones at ¶ 31, 39. Nothing about that holding should be construed as
prohibiting appellate review of a sentence when the claim is that the
sentence was improperly imposed based on impermissible considerations
-- i.e., considerations that fall outside those that are contained in R.C.
2929.11 and 2929.12. Indeed, in Jones, this court made clear that R.C.
2953.08(G)(2)(b) permits appellate courts to reverse or modify sentencing
decisions that are “‘otherwise contrary to law.’” Jones at ¶ 32, quoting R.C.
2953.08(G)(2)(b). This court also recognized that “otherwise contrary to
Muskingum County, Case No. CT2022-0073 8
law” means “‘in violation of statute or legal regulations at a given time.’” Id.at ¶ 34 quoting Black's Law Dictionary 328 (6th Ed.1990). Accordingly,
when a trial court imposes a sentence based on factors or considerations
that are extraneous to those that are permitted by R.C. 2929.11 and
2929.12, that sentence is contrary to law. Claims that raise these types of
issues are therefore reviewable.
Bryant, 2022-Ohio-1878, ¶22.
{¶21} R.C. 2929.11(A) outlines the “the overriding purposes of felony sentencing,”
which 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. 2929.12 details
factors relating to the seriousness of an offender's conduct, the likelihood of recidivism,
service in the Armed Forces, and the purposes and principles of sentencing.
{¶22} 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). Although a court
imposing a felony sentence must consider the purposes of felony sentencing under R.C.
and the sentencing factors under R.C. 2929.12, “neither R.C. 2929.11 nor
quires [the] court to make any specific factual findings on the record.” State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, at ¶ 20, citing State v. Wilson, 129
Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d
208, 215, 724 N.E.2d 793 (2000). Under established law, a “trial court has
Muskingum County, Case No. CT2022-0073 9
full discretion to impose any sentence within the authorized statutory range, and the court
is not required to make any findings or give its reasons for imposing maximum or more
than minimum sentences.” State v. Sullens, 5th Dist. Muskingum No. CT2021-0068,
2022-Ohio-2305, ¶ 15 quoting State v. King, 2nd Dist. Clark App. Nos. 2012–CA–25,
2012-CA-26, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45.
{¶23} The record demonstrates that the trial court imposed prison terms in this
case which were within the statutory range and the trial court specifically considered the
requisite statutory factors in R.C. 2929.11 and R.C. 2929.12 when it fashioned
Richardson’s aggregate sentence. The trial court reviewed the presentence investigation
report. The trial court noted Richardson’s criminal history and substantial record of
disobedience while in prison and on post release control. The trial court spoke to
Richardson about the March 29, 2022 incident where the one-year-old child turned blue
after ingesting fentanyl and had to be revived with NARCAN. While Richardson and the
child tested positive for fentanyl and Richardson exchanged text messages about
purchasing fentanyl, Richardson denied to the trial court there was fentanyl in the house.
In his appeal, Richardson states the trial court failed to consider that while the child
accidentally ingested fentanyl, Richardson had also explained to the trial court how he
had taken steps to remove his children from gang violence.
{¶24} The trial court imposed a sentence different from the parties’ joint
recommended sentence, but it was within the trial court’s discretion to do so. Based upon
the record of the sentencing hearing, we find the trial court’s imposition of sentence was
not contrary to law.
{¶25} Richardson’s sole Assignment of Error is overruled.
Muskingum County, Case No. CT2022-0073 10
CONCLUSION
{¶26} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.