State v. Cox , 2017 Ohio 5550 ( 2017 )

[Cite as State v. Cox, 2017-Ohio-5550.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DAVID COX : Case No. 16-CA-80
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
15 CR 539
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 21, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES STEVEN T. WOLFE
Licking County Prosecutor Wolfe Law Group, LLC
1350 W. 5th Ave., Ste. 124
By: JENNA E. JOSEPH Columbus, Ohio 43212
Assistant Prosecuting Attorney
20 S. Second Street, 4th Fl.
Newark, Ohio 43055
Licking County, Case No. 16-CA-80 2
Baldwin, J.
{¶1} Appellant David Cox appeals a judgment of the Licking County Common
Pleas Court convicting him of failure to comply with the order or signal of a police officer
(R.C. 2921.331(B)(C)(3)), attempted burglary (R.C. 2911.12(A)(1), 2923.02(A)), having
weapons under disability (R.C. 2923.13(A)(1),(3)), and improper handling of a firearm in
a motor vehicle (R.C. 2923.16(B)). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 4, 2015, appellant attempted to break into a home. The
homeowner saw appellant, whom he recognized, run through the backyard, jump into a
maroon Chevy Impala, and drive away. The homeowner called the police, giving them
appellant’s name.
{¶3} A police officer located appellant and attempted to initiate a traffic stop.
Appellant sped away while reaching speeds in excess of 100 miles per hour. When the
vehicle was located abandoned in a cornfield, officers noted several rifles in plain sight
inside the vehicle, including a high-powered rifle within easy reach of the driver’s seat.
Appellant was later arrested and admitted to driving the vehicle.
{¶4} Appellant was indicted by the Licking County Grand Jury with failure to
comply with the order or signal of a police officer, attempted burglary, having weapons
under disability, and improper handling of a firearm in a motor vehicle. Appellant was
found competent to stand trial after psychiatric examination.
{¶5} The State amended count one of the indictment, which charged appellant
with failure to comply with the order or signal of a police officer, from a felony of the third
Licking County, Case No. 16-CA-80 3
degree to a first degree misdemeanor. Appellant then entered a plea of no contest to all
charges. He was sentenced to ninety days incarceration for failure to comply with the
order or signal of a police officer, thirty months incarceration for attempted burglary, thirty-
six months incarceration for having weapons under disability, and twelve months
incarceration for improper handling of a firearm in a motor vehicle. All sentences were to
be served concurrently.
{¶6} Appellant assigns a single error to his sentence:
{¶7} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
IMPOSED THE MAXIMUM PRISON TERM FOR THE HIGHEST DEGREE OFFENSE
WHEN SENTENCING APPELLANT FOR TWO OR MORE OFFENSES ARISING OUT
OF A SINGLE INCIDENT.”
{¶8} Appellant argues that the court erred in failing to make findings in support
of imposing the maximum sentence of thirty-six months for having weapons under
disability. He argues the record does not demonstrate that the trial court considered
appellant’s mental illness in imposing the maximum sentence.
{¶9} Pursuant to R.C. 2953.08(A)(1)(b), appellant may appeal the instant
sentence, as it was imposed for two or more offenses arising out of a single incident, and
the court imposed the maximum prison term for the offense of the highest degree.
Appellant argues that we review the instant sentence for an abuse of discretion pursuant
to State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124. However, we
no longer review sentences pursuant to the standard set forth in Kalish. We now review
felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum,
146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22; State v. Howell, 5th Dist.
Licking County, Case No. 16-CA-80 4
Stark No. 2015CA00004, 2015–Ohio–4049, ¶ 31. R.C. 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. Accordingly, pursuant to Marcum this Court
may vacate or modify a felony sentence on appeal only if it determines by clear and
convincing evidence that: (1) the record does not support the trial court's findings under
relevant statutes, or (2) the sentence is otherwise contrary to law.
{¶10} R.C. 2953.08(G)(2)(a), allowing appellate review of whether the record
supports findings made by the trial court, does not apply in the instant case. R.C.
2953.08(G)(2)(a) sets forth a standard for review of findings made pursuant to specific
statutes, none of which are applicable to the instant case. Therefore, we only review the
instant sentence to determine if it is contrary to law.
{¶11} A trial court's imposition of a maximum prison term is not contrary to law as
long as the court sentences the offender within the statutory range for the offense, and in
so doing, considers the purposes and principles of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.
Santos, 8th Dist. Cuyahoga No. 103964, 2016-Ohio-5845, ¶ 12. Although 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. Id.Licking County, Case No. 16-CA-80 5
{¶12} In the instant case, a sentence of thirty-six months was within the statutory
framework set forth in R.C. 2929.14(A)(3)(b) for a felony of the third degree. Further, the
trial court stated in its sentencing entry that it had considered the record, oral statements,
and the presentence investigation report, as well as the principles and purposes of
sentencing set forth in RC. 2929.11 and the seriousness and recidivism factors set forth
in R.C. 2929.12. The sentence is therefore not contrary to law.
{¶13} Appellant’s reliance on State v. Crutchfield, 5th Dist. Ashland No. 11-COA-
049, 2012-Ohio-2892, is misplaced. First, we note that in Crutchfield, we reviewed the
sentence for an abuse of discretion pursuant to the former standard of review as set forth
in Kalish, supra. Further, we did not state that findings were required on the part of the
trial court for a maximum sentence, but merely referred to the findings the court set forth
in its entry in finding no abuse of discretion. Id. at ¶¶29-32.
{¶14} The assignment of error is overruled. The judgment of the Licking County
Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Delaney, P.J. and
Hoffman, J. concur.