State v. Johnson , 2023 Ohio 2008 ( 2023 )

[Cite as State v. Johnson, 2023-Ohio-2008.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1095
Appellee Trial Court No. CR0202101710
v.
Adrian Johnson, Jr. DECISION AND JUDGMENT
Appellant Decided: June 16, 2023
*****
Julia R. Bates, Lucas Count Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Brian A. Smith, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Adrian Johnson Jr., appeals the March 30, 2022 judgment of the
Lucas County Court of Common Pleas sentencing him to an indefinite period of 4 to 6
years in prison. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} Johnson was charged with one count of felonious assault in violation of R.C.
2903.11(A)(1), a second-degree felony. Johnson and the state reached an agreement
under which Johnson would plead no contest to the indictment, and the state would
recommend a prison term of 4 to 6 years.
{¶ 3} At the plea hearing, the trial court engaged Johnson in a colloquy and
reviewed his rights under Crim.R. 11. As relevant to this appeal, the court explained
Johnson’s no-contest plea as follows: “You are entering a plea of no contest and a plea
of no contest is not an admission of guilt. * * * However, by entering this plea you’re
telling me that you’re not objecting to the charges, nor are you going to object to a
statement from the Prosecutor as to what the evidence would be if this matter were to
proceed to trial.” The plea agreement that Johnson signed contained similar information:
“By pleading no contest, I understand the Court will decide my guilt on the offenses to
which I have pled based upon the facts as set forth in the indictment and upon the
statement by the prosecutor about the evidence which would have been presented at
trial.”
{¶ 4} As the factual basis for Johnson’s plea, the state said, “on or about March
1st, 2021 the Defendant, Adrian Johnson, did knowingly cause serious physical harm to
another. Specifically, on March 1st, 2021 the Defendant assaulted corrections officer
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D.M. The Defendant picked the corrections officer up and body slammed him. The
officer was transported to the hospital, [and] he did sustain serious injury * * *.”
{¶ 5} The court accepted Johnson’s plea and found him guilty. It also ordered a
presentence investigation report (“PSI”) and set the matter for sentencing.
{¶ 6} At the sentencing hearing, Johnson’s attorney explained that Johnson was
serving a prison sentence on a Cuyahoga County case and had approximately seven and
one-half years remaining on his sentence. While he was in prison, Johnson “had no other
problems” at the institution, and his case manager described him as “mild-mannered,
agreeable, not a troublemaker * * *.” Regarding the assault underlying the indictment,
counsel said that Johnson “did have a confrontation with the corrections officer, there
was a video on the incident, it does appear that the corrections officer did spray mace at
[Johnson], but [Johnson] did take action which did cause injuries to the corrections
officer.” He also said that Johnson’s actions that day were “not his character.” Counsel
believed that Johnson’s assault of a corrections officer was an “isolated incident[.]”
Additionally, counsel noted that Johnson had graduated high school and taken some
college classes. Counsel also requested that the court impose the sentence in this case
concurrently with the sentence that Johnson was serving in the Cuyahoga County case.
{¶ 7} When he spoke in his own behalf, Johnson told the court that he is “a nice
person[,]” he is “not a bad person, this was just a mistake that got out of hand.” He
explained that he did not try to provoke or cause an argument with the corrections officer,
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but “[t]he CO really just, kind of, caught [him] on a bad day and really provoked [him].”
As Johnson explained the incident:
[the corrections officer] said some stuff to me and he addressed me
by my shirt not being buttoned. I walked away, and then he made a
comment saying that he was gonna dump me if I walked up on him again. I
asked him, what did he say? And he maced me. And then I, fearing for my
life—being in prison over four years I just seen COs and other inmates get
sprayed and the other inmates run up and jump—intervene and jump into
the fight, people get stabbed, get killed. * * * He maced me, I couldn’t see,
and I, really, just defended myself. And I never meant to hurt him severely
or anything like that though.
Johnson’s statements to the trial court are consistent with his version of events in the PSI.
{¶ 8} Before imposing sentence, the trial court reviewed some of the pertinent
information from Johnson’s PSI:
the corrections officer caught you on a bad day, so you picked him
up and body slammed him to the ground. This rendered him unconscious.
He suffered a concussion, his eye was swollen shut, he lost vision in his eye
for weeks. He still suffers from that incident. Also, you caused him
psychological harm that day, he has flashbacks and nightmares. * * * This
even caused him to have to terminate his employment. He could have been
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killed, Mr. Johnson. You’re very lucky that he wasn’t. * * * [Y]ou are
serving a sentence at the Toledo Correctional Institution now, where you
committed this offense. You have a total of three prior felony convictions
and 11 misdemeanor convictions. And you admit you assaulted the officer,
but you lack genuine remorse.
The court then sentenced Johnson to an indefinite prison term of 4 to 6 years.
{¶ 9} The court ordered Johnson to serve this prison term consecutively to the
sentence that he was serving in the Cuyahoga County case. To support its imposition of
consecutive sentences, the trial court determined that
a consecutive sentence is necessary to protect the public from future
crime or to punish [Johnson], and not disproportionate to the seriousness of
[Johnson’s] conduct or the danger [Johnson] poses. * * * [Johnson] was
serving a sentence at the time he committed the offense. The harm caused
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 [Johnson’s] conduct, and [Johnson’s] criminal history
requires consecutive sentences.
{¶ 10} In its March 30, 2022 sentencing entry, the court repeated its reasons for
imposing consecutive sentences:
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[C]onsecutive sentence [sic] are necessary to protect the public from
future crime or to punish [Johnson] and are not disproportionate to the
seriousness of [Johnson’s] conduct and to the danger [Johnson] poses to the
public. * * * [T]he harm caused was great or unusual such that no single
prison term is adequate, [Johnson] was serving a prison sentence when the
offense was committed and [Johnson’s] criminal history demonstrates that
consecutive sentences are necessary to protect the public * * *.
{¶ 11} Johnson now appeals, raising two assignments of error:
I. Appellant’s no contest plea was not knowingly, intelligently, and
voluntarily made, because the trial court failed to properly advise Appellant
of the consequences of a no contest plea, in compliance with Crim.R. 11(B)
and Appellant’s right to Due Process under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Section 16 of
the Ohio Constitution.
II. The record does not support the trial court’s imposition of
consecutive sentences on Appellant pursuant to R.C. 2929.14(C)(4).
II. Law and Analysis
A. The trial court’s imperfect compliance with Crim.R. 11 did not prejudice
Johnson.
{¶ 12} In his first assignment of error, Johnson argues that he did not knowingly,
intelligently, and voluntarily plead no contest because the trial court did not advise him of
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the effects of his no-contest plea, as required by Crim.R. 11(B) and (C)(2)(b). He
contends that the trial court failed to substantially comply with Crim.R. 11(B), and that
he would not have entered the plea if the court had properly advised him. As support for
this argument, he points to his statement at sentencing that the corrections officer sprayed
him with mace before he assaulted the officer. He claims that this is evidence that he had
an affirmative defense to the felonious assault charge and if he was “properly advised that
by entering a no contest plea, he would be accepting the facts alleged in the Indictment as
true, without an opportunity to contest them or provide a differing account of what took
place, he would not have entered a no contest plea.”
{¶ 13} The state responds that Johnson knowingly, intelligently, and voluntarily
entered his plea because the trial court adequately advised him of the consequences of the
plea. Further, the state contends that, assuming the court’s advisement was deficient,
Johnson cannot show that he was prejudiced. Finally, the state argues that Johnson’s
statement at sentencing did not indicate a lack of understanding of the plea he made or
contradict the state’s version of events.
{¶ 14} A plea of no contest in a criminal case “must be made knowingly,
intelligently, and voluntarily. Failure on any of those points renders enforcement of the
plea unconstitutional under both the United States Constitution and the Ohio
Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Under
Crim.R. 11(C)(2), “felony defendants are entitled to be informed of various constitutional
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and nonconstitutional rights, prior to entering a plea.” State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 6. When an appellant seeks to vacate his plea on
appeal because
the plea was not entered in a knowing, intelligent and voluntary
manner due to the trial court’s failure to comply with Crim.R. 11, “the
questions to be answered are simply: (1) has the trial court complied with
the relevant provision of the rule? (2) if the court has not complied fully
with the rule, is the purported failure of a type that excuses [an appellant]
from the burden of demonstrating prejudice? and (3) if a showing of
prejudice is required, has the [appellant] met that burden?”
(Brackets sic.) State v. Morgan, 6th Dist. Lucas Nos. L-20-1156, L-21-1017, and L-21-
1018, 2021-Ohio-3996, ¶ 15, quoting State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-
2765, 164 N.E.3d 286, ¶ 17. Unless the trial court fails to explain a constitutional right in
Crim.R. 11(C)(2)(c) or completely fails to comply with a portion of Crim.R. 11(C)—e.g.,
by failing to mention mandatory postrelease control, State v. Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509, 881 N.E.2d 1224, ¶ 22—the appellant is required to show prejudice to
have his plea vacated. Dangler at ¶ 13-16.
{¶ 15} Under Crim.R. 11(C)(2)(b), a trial court cannot accept a no-contest plea
without addressing the defendant and “[i]nforming the defendant of and determining that
the defendant understands the effect of the plea of * * * no contest, and that the court,
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upon acceptance of the plea, may proceed with judgment and sentence.” To inform the
defendant of the effect of a no-contest plea, the trial court must inform the defendant that
“[t]he plea of no contest is not an admission of defendant’s guilt, but is an admission of
the truth of the facts alleged in the indictment, * * * and the plea or admission shall not
be used against the defendant in any subsequent civil or criminal proceeding.” Crim.R.
11(B)(2); State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 25.
{¶ 16} In Johnson’s case, we find that the trial court did not fully comply with
Crim.R. 11(B)(2) and (C)(2)(b). At no point did the court tell Johnson that a no-contest
plea is an admission of the truth of the facts alleged in the indictment, or that the plea and
admission cannot be used against him in any future civil or criminal proceedings.
Crim.R. 11(B)(2); Jones at ¶ 25. However, the court’s statement to Johnson that entering
a no-contest plea meant that he is “not objecting to the charges * * *” or “object[ing] to a
statement from the Prosecutor as to what the evidence would be * * *” at trial shows that
the court did not completely fail to comply with Crim.R. 11(B)(2) and (C)(2)(b). See
State v. Krauzer, 6th Dist. Lucas No. L-19-1018, 2020-Ohio-608, ¶ 11, 14 (Trial court
did not completely fail to comply with Crim.R. 11 when it explained that “by entering a
no contest plea, appellant was not disputing the allegations and that the court would rely
on the state’s representation of the evidence against him.”).
{¶ 17} The trial court’s imperfect compliance with Crim.R. 11(B) and (C)(2)(b) is
not an error that excuses Johnson from showing prejudice, see Dangler at ¶ 13-16, so
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Johnson must show that the trial court’s advisement about the effect of his no-contest
plea prejudiced him. The test for prejudice is “‘whether the plea would have otherwise
been made.’” Id. at ¶ 16, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474(1990). Prejudice must be established on the face of the record. Id. at ¶ 24, citing
Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913,
11 N.E.3d 243, ¶ 26.
{¶ 18} The explanation that the trial court gave was sufficient to convey to
Johnson that he was not admitting his guilt and that his plea was based on the facts in the
indictment provided by the state. See Krauzer at ¶ 11, 14. Although the court did not tell
Johnson that his plea or admission could not be used against him in future proceedings,
that information is beneficial to a defendant, so its omission cannot show that the
defendant was prejudiced (i.e., that the defendant would not have entered his plea if he
knew that information). Id. at ¶ 15, citing State v. Pettaway, 6th Dist. Lucas No. L-13-
1093, 2014-Ohio-3513, ¶ 9; State v. Conard, 11th Dist. Ashtabula No. 2019-A-0065,
2020-Ohio-6673, ¶ 39, citing State v. Dundics, 2016-Ohio-1368, 62 N.E.3d 1013, ¶ 21
(11th Dist.); and Cleveland v. Kutash, 8th Dist. Cuyahoga No. 99509, 2013-Ohio-5124, ¶
22.
{¶ 19} Johnson also argues that his statements at the sentencing hearing—
specifically, his statement that the corrections officer “maced” him—show that he “did
not subjectively understand the consequences of a no contest plea under Crim.R. 11(B) *
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* *.” He claims that “[h]ad [he] been properly advised of the consequences of a no
contest plea, he would have chosen to try the case, either to the trial court or to a jury, and
to present evidence and give his version of the facts.” But the record does not support
this argument. Johnson does not claim that he or his attorney were unaware at the time
Johnson entered his plea that the corrections officer had sprayed mace on Johnson. The
plea agreement that Johnson signed specifically said that “[t]he charges have been
explained to me by my attorney and the Court. I understand the nature of the charges
and the possible defenses I might have.” (Emphasis added.) Neither Johnson nor his
attorney objected to the facts that the state presented at the plea and sentencing hearings.
And Johnson did not attempt to withdraw his plea. Taken together, this falls short of
demonstrating that Johnson would not have pleaded no contest if the trial court had
properly advised him of the effect of a no-contest plea.
{¶ 20} Johnson makes much of the fact that the state did not mention the
corrections officer spraying him with mace in its statement of facts at the plea hearing.
But, in a felony case, the state is not required to provide an explanation of circumstances
before the court can find the defendant guilty. State v. Rohda, 6th Dist. Lucas Nos. L-05-
1278 and L-05-1280, 2006-Ohio-6463, ¶ 21. All that is required is that the indictment,
information, or complaint contain allegations sufficient to state a felony offense; if it
does, the trial court must find the defendant guilty. State v. Bird, 81 Ohio St.3d 582, 584,
11.
692 N.E.2d 1013 (1998), citing Crim.R. 11(B)(2); and State ex rel. Stern v. Mascio, 75
Ohio St.3d 422, 425, 662 N.E.2d 370 (1996).
{¶ 21} An indictment that states the charged offense in terms of the statute—
without more—is sufficient to convict a defendant following a no-contest plea. E.g.,
State v. Magnone, 2016-Ohio-7100, 72 N.E.3d 212, ¶ 48, 53 (2d Dist.). The exception to
this rule is when the state provides an explanation of circumstances that “absolutely
negates” an element of the charged offense. State v. Huffman, 3d Dist. Hancock No. 5-
19-37, 2020-Ohio-1062, ¶ 9; Rohda at ¶ 21. In that case, the trial court cannot find the
defendant guilty. Id. But self-defense is an affirmative defense, and an affirmative
defense is not an element of a crime. State v. Messenger, Slip Opinion No. 2022-Ohio-
4562, --- N.E.3d ----, ¶ 24. Importantly, a “claim of self-defense is not necessarily
inconsistent with [a defendant’s] plea of no contest to felonious assault, or necessarily
indicative of a lack of understanding of the nature and effect of the plea.” State v. Ormes,
2d Dist. Montgomery No. 20084, 2004-Ohio-2194, ¶ 32.
{¶ 22} The indictment alleged that Johnson “did knowingly cause serious physical
harm to another * * *” in violation of R.C. 2903.11(A)(1). This is sufficient to charge
Johnson with felonious assault under R.C. 2903.11(A)(1), and, if assumed true, to convict
Johnson following a no-contest plea. See Bird at 584-585. Although the state provided
additional factual information to the court, the addition of Johnson being maced to the
explanation of circumstances would not have required the trial court to find Johnson not
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guilty. That fact—either standing alone or combined with the facts the state presented to
the trial court—does not absolutely negate any of the elements of felonious assault; the
information before the court would still show that Johnson knowingly caused physical
harm to the corrections officer.
{¶ 23} Further, Johnson acknowledged in the plea agreement that he knew of any
potential defenses that he might have to the charge of felonious assault before he pleaded
no contest. He does not argue that either he or his attorney were unaware of the facts that
he might have relied on to claim self-defense before Johnson entered his plea, or that his
attorney failed to advise him about the potential availability of the defense. Nor did
Johnson or his attorney try to claim at sentencing that the corrections officer spraying
Johnson with mace was a defense to the charge; they mentioned it to try to mitigate the
sentence the trial court was going to impose. On this record, we do not see how the state
saying at the plea hearing that Johnson was maced before assaulting the corrections
officer would have changed how Johnson proceeded with the case.
{¶ 24} Because the record does not support Johnson’s argument that his plea was
not knowingly, voluntarily, and intelligently made, his first assignment of error is not
well-taken.
B. The record supports consecutive sentences.
{¶ 25} In his second assignment of error, Johnson argues that the record does not
support the trial court’s imposition of consecutive sentences. He contends that (1) there
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were “mitigating circumstances” that weighed against the trial court’s proportionality
finding; (2) his clean disciplinary record while in prison weighed against the trial court’s
proportionality finding; (3) the length of time remaining on his Cuyahoga County
sentence weighed against the trial court’s finding under R.C. 2929.14(C)(4)(c); and (4)
his educational history weighed against the trial court’s proportionality finding.
{¶ 26} The state responds that Johnson’s challenge of his consecutive sentences is
really a disguised attempt to challenge the trial court’s application of R.C. 2929.11 and
2929.12. It also contends that Johnson’s complaint is not that the record does not support
the trial court’s findings; rather, the state interprets Johnson’s arguments as disputing the
weight that the trial court gave to each factor.
1. Standard of review
{¶ 27} We review sentencing challenges under R.C. 2953.08(G)(2). The statute
allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate
the sentence and remand the matter for resentencing only if it clearly and convincingly
finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
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R.C. 2953.08(G)(2).
{¶ 28} Because Johnson challenges the trial court’s imposition of consecutive
sentences under R.C. 2929.14(C)(4), R.C. 2953.08(G)(2)(a) applies. To modify or vacate
consecutive sentences under R.C. 2953.08(G)(2)(a), we must clearly and convincingly
find that the record does not support the sentencing court’s findings under R.C.
2929.14(C)(4). A sentencing court must make its findings under R.C. 2929.14(C)(4) at
the sentencing hearing and incorporate them into the sentencing entry, but it is not
required to state the reasons underlying its decision. State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
{¶ 29} The Ohio Supreme Court recently clarified how appellate courts should
review consecutive sentences in State v. Gwynne, Slip Opinion No. 2022-Ohio-4607, ---
N.E.3d ----.1 The court explained that the clear-and-convincing standard of review in
R.C. 2953.08(G)(2) “indicates that the legislature did not intend for appellate courts to
defer to a trial court’s findings but to act as a second fact-finder in reviewing the trial
court’s order of consecutive sentences.” Id. at ¶ 20. Thus, our review of the trial court’s
findings is de novo. Id. at ¶ 27.
{¶ 30} Because appellate review is de novo, “the appellate court essentially
functions in the same way as the trial court when imposing consecutive sentences in the
first instance.” Id. at ¶ 21. But there are three important differences: (1) the appellate
1
We note that a motion for reconsideration of this decision is pending before the
Supreme Court.
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court can only review the R.C. 2929.14(C)(4) findings that the trial court actually made
(i.e., “a reviewing court cannot determine for itself which of the three permissible
findings within R.C. 2929.14(C)(4)(a)-(c) might apply * * *”); (2) the appellate court
uses a clear-and-convincing standard, as opposed to the trial court’s preponderance-of-
the-evidence standard; and (3) the “ultimate question” before the appellate court is
inverted (i.e., the trial court must determine whether each finding is “more likely—or
more probably—true than not, * * *” but the appellate court must determine “whether it
has a firm belief or conviction that the proposition of fact represented by each finding is
not true * * *”). (Emphasis added.) Id.
{¶ 31} The court went on to provide “practical guidance” for appellate review of
consecutive sentences. Id. at ¶ 24. First, the appellate court must ensure that the trial
court made each of the findings required by R.C. 2929.14(C)(4). Id. at ¶ 25. To impose
consecutive sentences, a trial court is required to make three findings: (1) consecutive
sentences are “necessary to protect the public from future crime or to punish the offender
* * *;” (2) imposition of consecutive sentences is not “disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public * * *;” and
(3) one of the factors in R.C. 2929.14(C)(4)(a) to (c) applies. R.C. 2929.14(C)(4); State
v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. The options
for the third finding under R.C. 2929.14(C)(4) are:
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(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.
If the trial court fails to make these findings, the sentence is contrary to law. Gwynne,
Slip Opinion No. 2022-Ohio-4607, --- N.E.3d ----, at ¶ 25.
{¶ 32} The second step the appellate court must take is determining if the trial
court’s findings are clearly and convincingly supported by the record. Id. at ¶ 26. The
court must vacate or modify the appellant’s sentence “if even one of the consecutive-
sentence findings is found not to be supported by the record under the clear-and-
convincing standard * * *.” Id. The clear-and-convincing standard requires the appellate
court to have “a firm conviction or belief” that the evidence in the record does not
17.
support the trial court’s findings. Id. at ¶ 27. The Supreme Court made clear that R.C.
2953.08(G)(2) “does not permit—much less require or expect—an appellate court to
modify or vacate an order of consecutive sentences only when it is unequivocally certain
that the record does not support the findings.” Id.
{¶ 33} Reviewing the record for clear and convincing evidence requires the
appellate court to (1) determine if there is some evidentiary support in the record for the
trial court’s consecutive sentence findings, and (2) ensure that whatever evidentiary basis
exists is “adequate to fully support the trial court’s consecutive-sentence findings.” Id. at
¶ 29.
2. The trial court’s findings are not clearly and convincingly unsupported by the
record.
{¶ 34} Johnson concedes—and we agree—that the trial court made all of the
required consecutive-sentence findings on the record and in the sentencing entry. Thus,
our review will focus on whether the record supports the trial court’s findings.
{¶ 35} Johnson primarily argues that the trial court’s proportionality determination
is unsupported by the record. The “proportionality analysis [required by R.C.
2929.14(C)(4)] ‘does not occur in a vacuum, but, instead, focuses upon the defendant’s
current conduct and whether this conduct, in conjunction with the defendant’s past
conduct, allows a finding that consecutive service is not disproportionate [to the
seriousness of the defendant’s conduct and to the danger the defendant poses to the
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public].’” State v. Kelly, 2d Dist. Clark No. 2020-CA-8, 2021-Ohio-325, ¶ 80, quoting
State v. Crim, 2d Dist. Clark No. 2018-CA-38, 2018-Ohio-4996, ¶ 11.
{¶ 36} Johnson’s “‘current conduct’” that the trial court had to consider was him
body slamming a corrections officer following a verbal exchange and causing significant,
lasting injuries to the corrections officer. The court also considered Johnson’s lack of
remorse regarding the incident. Weighing against this, Johnson points to the facts that
the corrections officer sprayed him with mace before the altercation became physical, he
did not have a disciplinary record while in prison, and he has education and training that
make him employable and, thus, less likely to reoffend. However, when the trial court
looked at the fight combined with Johnson’s past harassing and violent conduct—
including juvenile adjudications for disorderly conduct, attempted assault, resisting arrest,
and aggravated menacing (among others) and adult convictions of felonious assault and
aggravated robbery with a firearm specification—the court concluded that consecutive
sentences were not disproportionate to the seriousness of Johnson’s conduct and the
danger he poses to the public. Based on this information, we cannot say that we have a
“firm belief or conviction” that the trial court’s proportionality analysis is unsupported by
the evidence in the record. Gwynne, Slip Opinion No. 2022-Ohio-4607, --- N.E.3d ----,
at ¶ 23.
{¶ 37} Regarding the trial court’s finding that Johnson’s criminal history showed
that consecutive sentences were necessary to protect the public from future crime by
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Johnson, before a trial court makes a finding under R.C. 2929.14(C)(4)(c), “it must
determine whether the defendant’s criminal history demonstrates the need for a lengthy
prison term to adequately protect the public from the threat of future crimes by the
defendant.” Id. at ¶ 15. But a trial court is not required to state the reasons underlying its
decision to impose consecutive sentences; it must only make the statutorily-required
findings at the sentencing hearing and in the sentencing entry. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus.
{¶ 38} Johnson argues that the trial court ignored the length of the Cuyahoga
County prison term—which will keep him incarcerated until 2029—and when the prison
term is combined with his criminal history, the record does not support consecutive
sentences. However, the trial court had Johnson’s PSI before it, and information about
the Cuyahoga County sentence is in the PSI. This is sufficient to show that the trial court
took the Cuyahoga County sentence into account in determining that consecutive
sentences were appropriate. See State v. Boyd, 7th Dist. Belmont No. 21 BE 0048, 2023-
Ohio-1120, ¶ 68 (appellant’s criminal history supported consecutive sentences, despite
the trial court’s cursory reference to his record at the sentencing hearing, because the PSI
detailed appellant’s past crimes). Further, the PSI showed that Johnson exhibited a
pattern of criminal behavior, including offenses of violence and use of firearms, that
began when he was 16 years old and continued despite the imposition of sanctions—
including prison time. On balance, we cannot say that we have a firm belief or
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conviction that the trial court’s finding under R.C. 2929.14(C)(4)(c) is unsupported by
the evidence in the record.
{¶ 39} Johnson’s second assignment of error is not well-taken.
C. The state did not properly raise the issue of postrelease control.
{¶ 40} Finally, we must address the notice of conceded error that the state filed
with its merit brief. In it, the state asserts that “it has conceded reversible error * * *
relating to the imposition of post-release control * * *.”
{¶ 41} The state’s notice appears to be an attempt to comply with 6th
Dist.Loc.App.R. 10(H), which states that “[i]f a party has conceded reversible error in the
filing of a brief, that party and/or the opposing party, shall file a notice or a joint notice of
conceded error with the clerk within 10 days advising the court of the conceded error.”
Johnson, however, did not raise any issue regarding postrelease control in his merit brief,
nor did he address the state’s notice in his reply brief. Accordingly, Johnson has not
raised any error relating to postrelease control for the state to “concede.”
{¶ 42} Moreover, under App.R. 3(C)(1), “[w]hether or not an appellee intends to
defend an order on appeal, an appellee who seeks to change the order * * * shall file a
notice of cross appeal with the clerk of the trial court * * *.” (Emphasis added.) When
the appellee “intends to defend an order appealed by an appellant on a ground other than
that relied on by the trial court but [] does not seek to change the order * * *[,]” it is not
required to file a cross-appeal. App.R. 3(C)(2). If the appellee does not file a notice of
21.
cross appeal when one is required, we do not have the authority to consider the appellee’s
arguments. State v. Wilcox, 1st Dist. Hamilton No. C-190495, 2021-Ohio-2282, ¶ 7-8;
see also State v. Brazil, 6th Dist. Wood No. WD-13-040, 2014-Ohio-995, ¶ 14, citing
State v. Oke, 6th Dist. Wood Nos. WD-04.082 and WD-04-083, 2005-Ohio-6525, ¶ 54.
{¶ 43} In this case, the state is doing more than asking us to decide this appeal on
a ground not used by the trial court; it is asking us to modify the trial court’s sentencing
order. But Johnson did not assign any error relating to postrelease control, and the state
did not file a notice of cross appeal. Accordingly, we do not have authority to consider
the “error” raised by the state in its notice of conceded error. See Wilcox at ¶ 8; Brazil at
¶ 14.
III. Conclusion
{¶ 44} For the foregoing reasons, the March 30, 2022 judgment of the Lucas County
Court of Common Pleas is affirmed. Johnson is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
22.
State of Ohio
v. Adrian Johnson, Jr.
L-22-1095
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
23.