State v. Moyer , 2019 Ohio 1187 ( 2019 )

[Cite as State v. Moyer, 2019-Ohio-1187.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18 CA 0065
SHAWN MOYER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Caes No. 16 CR 0430
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 29, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NATHANIEL H. HURST KEVIN J. GALL
ASSISTANT PROSECUTOR 33 West Main Street
20 South Second Street, 4th Floor Suite 109
Newark, Ohio 43055 Newark, Ohio 43055
Licking County, Case No. 18 CA 0065 2
Wise, J.
{¶1} Defendant-Appellant Shawn Moyer appeals his sentence on one count of
Aggravated Trafficking in Drugs entered in the Licking County Common Pleas Court
following a revocation of his community control.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On July 21, 2016, Defendant-Appellant Shawn Moyer was indicted on one
count of Aggravated Trafficking of Drugs (Methamphetamine), in violation of R.C.
§2925.03(A)(1) and/or (2)(C)(1)(d), a felony of the second degree.
{¶4} On September 13, 2017, Defendant-Appellant entered a plea of guilty to an
amended count of Aggravated Trafficking in Drugs, a felony of the third degree.
{¶5} On December 5, 2017, Defendant-Appellant was sentenced to a four (4)
year term of community control, with a reserve sentence of thirty-six (36) months.
{¶6} On March 15, 2018, the Licking County Grand Jury returned a two-count
Indictment against Defendant-Appellant in the Licking County Common Pleas Court case
number 18-CR- 00141. Count One was Aggravated Burglary, and Count Two was
Felonious Assault.
{¶7} On August 2, 2018, Defendant-Appellant entered a plea of guilty to Count
Two of the indictment, Felonious Assault. The trial court sentenced Defendant-Appellant
to a four (4) year prison term.
{¶8} On March 14, 2018, a motion to revoke community control was filed in case
number 16-CR-00430. The violations of community control included the charges in case
Licking County, Case No. 18 CA 0065 3
number 18-CR- 00141, as well as Defendant-Appellant's admission to consuming alcohol
while on community control.
{¶9} On May 9, 2018, the Defendant Appellant admitted to the second violation,
consuming alcohol.
{¶10} On August 2, 2018, the trial court determined that Defendant was in
violation of his community control and imposed his reserved thirty-six (36) month
sentence.
{¶11} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶12} “I. THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT'S
PREJUDICE WHEN IT REVOKED HIS COMMUNITY CONTROL SANCTION AND
IMPOSED A PRISON TERM WITHOUT FIRST MAKING EITHER OF THE REQUISITE
FINDINGS AS REQUIRED BY R.C. 2929.13(E)(2)(a) OR (b).
I.
{¶13} In Appellant’s sole assignment of error, Appellant argues that the trial court
erred in imposing a sentence that was contrary to law. We disagree.
{¶14} More specifically, Appellant asserts the trial court erred “when it revoked his
community control sanction and imposed a prison term without first making either of the
requisite findings as required by R.C. 2929.13(E)(2)(a) or (b)."
{¶15} In accordance with R.C. §2953.08(A)(1), Appellant is entitled to appeal as
of right the maximum sentence imposed on his conviction.
{¶16} We 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, ¶
Licking County, Case No. 18 CA 0065 4
22; State v. Howell, 5th Dist. 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.
{¶17} 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.
{¶18} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 120
N.E.2d 118.
{¶19} The Marcum court further noted
We note that some sentences do not require the findings that R.C.
2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
appellate courts to review those sentences that are imposed solely after
consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
Licking County, Case No. 18 CA 0065 5
that is equally deferential to the sentencing court. That is, an appellate court
may vacate or modify any sentence that is not clearly and convincingly
contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.
{¶20} Id.
{¶21} R.C. §2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing, which are (1) to protect the
public from future crime by the offender and others, and (2) to punish the offender using
the minimum sanctions that the court determines will accomplish those purposes. Further,
the sentence imposed shall be “commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact on the victim, and consistent with
sentences imposed for similar crimes by similar offenders.” R.C. §2929.11(B).
{¶22} R.C. §2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. §2929.11. The statute provides a
non-exhaustive list of factors a trial court must consider when determining the
seriousness of the offense and the likelihood that the offender will commit future offenses.
{¶23} In State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d 124,
the court discussed the effect of the State v. Foster, 109 Ohio St. 3d 1, 2006–Ohio–856,
845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. §2929.14, holding that “trial courts have
full discretion to impose a prison sentence within the statutory range and are no longer
Licking County, Case No. 18 CA 0065 6
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100. See
also, State v. Payne, 114 Ohio St. 3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.
{¶24} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 13,
see also State v. Mathis, 109 Ohio St. 3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v.
Firouzmandi supra at ¶ 29.
{¶25} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,
4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts are
still required to consider the general guidance factors in their sentencing decisions.
{¶26} There is no requirement in R.C. §2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App. 3d 428, 431(4th Dist. 1995); State
v. Gant, 7th Dist. No. 04 MA 252, 2006–Ohio–1469, at ¶ 60 (nothing in R.C. §2929.12 or
the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth
its findings), citing State v. Cyrus, 63 Ohio St. 3d 164, 166, 586 N.E.2d 94 (1992); State
v. Hughes, 6th Dist. No. WD–05–024, 2005–Ohio–6405, ¶ 10 (trial court was not required
to address each R.C. §2929.12 factor individually and make a finding as to whether it was
Licking County, Case No. 18 CA 0065 7
applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–Ohio–1342, ¶ 19
(“... R.C. 2929.12 does not require specific language or specific findings on the record in
order to show that the trial court considered the applicable seriousness and recidivism
factors”). (Citations omitted).
{¶27} Although a revocation proceeding must comport with the requirements of
due process, it is not a criminal proceeding. State v. Ryan, 3rd Dist. Union No. 14–06–
55, 2007–Ohio–4743, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36
L. Ed. 2d 656 (1973). Therefore, the minimum due process requirements afforded a
defendant in a probation revocation proceeding differ from those in a criminal trial. A
community control or probation revocation is not a criminal trial; therefore, appellee is not
required to establish a violation of the terms of community control “beyond a reasonable
doubt.” Ryan, supra, 2007–Ohio–4743, ¶ 7, citing State v. Hylton, 75 Ohio App. 3d 778,
600 N.E.2d 821 (4th Dist. 1991). Instead, the state must show “substantial” proof
Appellant violated the terms of his community control sanctions. Id. Substantial evidence
is akin to a preponderance-of-the-evidence burden of proof. State v. Ohly, 166 Ohio
App.3d 808, 2006–Ohio–2353, 853 N.E.2d 675, at ¶ 18, citing State v. Hayes, 6th Dist.
No. WD–00–075, unreported, 2001 WL 909291 (Aug. 10, 2001). “Substantial evidence is
considered to consist of more than a mere scintilla of evidence, but somewhat less than
a preponderance.” Id., citations omitted.
{¶28} While Appellant herein is only challenging his sentence, not his conviction,
we do find the state demonstrated substantial proof that Appellant violated the terms of
his community control.
Licking County, Case No. 18 CA 0065 8
{¶29} Upon review, we find the trial judge who conducted the original sentencing
hearing heard the evidence that Appellant had violated the terms of his community control
sanctions. That judge considered the testimony, including Taylor's statement, in
determining the most appropriate manner to address the violation.
{¶30} At the disposition hearing on August 2, 2018, the trial court made the
following findings, determining that imprisonment was consistent with the purposes and
principles of sentencing:
I find that any presumption in favor of a concurrent term is overcome
in this case because that offense, an F2 at least, right, was committed while
he was on supervision for this offense and that concurrent terms would
demean the seriousness of this offense necessary to protect the public and
punish the offender and, frankly, his criminal history shows that consecutive
terms are necessary to protect the public.
{¶31} (T. at 7).
{¶32} In its Judgment Entry, filed on August 2, 2018, the trial court further stated:
[T]he Court considered the record, the statements of the parties, any
victim impact statement and Pre-sentence Investigation Report prepared,
as well as, the purposes and principles of sentencing set forth in R.C.
2929.11, and the seriousness and recidivism factors set forth in R.C.
2929.12.
{¶33} Based on the foregoing, we find the trial court considered the purposes and
principles of sentencing [R.C. §2929.11] as well as the factors that the court must consider
when determining an appropriate sentence. [R.C. §2929.12]. The trial court has no
Licking County, Case No. 18 CA 0065 9
obligation to state reasons to support its findings, nor is it required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry.
{¶34} Upon a thorough review, we find the record clearly and convincing supports
the sentence imposed by the trial court. We find the trial court properly considered the
purposes and principles of sentencing set forth in R.C. §2929.11, as well as the applicable
factors set forth in R.C. §2929.12, along with all other relevant factors and circumstances.
While Appellant may disagree with the weight given to these factors by the trial judge,
Appellant’s sentence was within the applicable statutory range for a felony of the third
degree and therefore, we have no basis for concluding that it is contrary to law.
{¶35} Appellant’s sole assignment of error is overruled.
{¶36} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0322