Opinion
CT2023-0003
08-14-2023
STATE OF OHIO, Plaintiff - Appellee v. MASON M. BUCK, Defendant-Appellant
For Plaintiff-Appellee RONALD L. WELCH Prosecuting Attorney Muskingum County, Ohio JOHN CONNOR DEVER Assistant Prosecuting Attorney. For Defendant-Appellant W. JOSEPH EDWARDS The Law Office of W. Joseph Edwards.
Appeal from the Muskingun County Court of Common Pleas, Case No. CR2022-0622
For Plaintiff-Appellee RONALD L. WELCH Prosecuting Attorney Muskingum County, Ohio JOHN CONNOR DEVER Assistant Prosecuting Attorney.
For Defendant-Appellant W. JOSEPH EDWARDS The Law Office of W. Joseph Edwards.
Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, JUDGES.
OPINION
Baldwin, J.
{¶1} Mason M. Buck appeals the decision of the Muskingum County Court of Common Pleas imposing a sentence of eight to twelve years for a violation of R.C. 2925.02(A)(3), Corrupting Another with Drugs, a felony of the second degree. The State of Ohio is the Appellee.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Mason Buck plead guilty to a violation of R.C. 2925.02(A)(3), Corrupting Another with Drugs and, on January 10, 2023, a judgment entry was journalized imposing an indefinite prison sentence of eight to twelve years. Buck claims that the sentence violates R.C. 2929.11 and 2929.12 because the trial court considered factors outside those listed in R.C. 2929.12 and did not fulfill the requirements of R.C. 2929.11. Buck also contends that his sentence was "inconsistent with sentences imposed for similar crimes committed by similar offenders," and offers a comparison with citations to the Muskingum County Prosecutor's website describing facts and sentences in two unrelated cases. That information is not part of the record in this case.
{¶3} The record in this case does not affirmatively demonstrate that the trial court failed to consider the relevant statutory factors, that it considered matters that should have been disregarded or that the sentence was inconsistent with sentences imposed for similar crimes committed by similar offenders. We therefore affirm the decision of the trial court.
{¶4} Buck entered a guilty plea so the facts were not thoroughly developed, but the pleadings and the transcript of the sentencing hearing do offer some of the facts underlying the offense. Buck supplied J.C. with Fentanyl, but was not a user of that drug. J.C.'s family was aware of J.C.'s addiction and knew that Buck was her source. They asked that Buck not sell her drugs, but he refused to comply, explaining that J.C. would find another source. He continued to sell J.C. drugs and, based upon the comment of the prosecutor, he delivered what would be the fatal dose of drugs to her at her family's home.
{¶5} Buck was charged for knowingly administering or furnishing to J.C. a controlled substance, and thereby causing her death in violation of R.C. 2925.02(A)(3), a felony of the second degree. The penalty for the offense is "an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code." (R.C. 2929.14(A)(2)).
{¶6} The assistant prosecutor and the trial court acknowledged the tragedy of the loss and during the sentencing hearing, the trial court made comments that are the source of Buck's appeal:
As indicated, the facts in this case are not easy to read or easy to talk about. What the family had to go through was something no family should have to do. And unfortunately, it's not the first time I've had it in this courtroom, and I would wish that it would be the last. And I wish that somebody would stop keep -- saying that the selling and using of drugs is not a crime of violence. It is. I've had more people in here I had to send to prison for either killing a loved one, or causing the death of somebody else, or causing the death of a loved one, who stood like you are right there, right now, saying I'm not a bad person really but the drugs did it. Well, you can't
do that and say that and then say that drugs are not violence. And it's got to end some time.(Sentencing Hearing Transcript, p. 8, lines 5-19).
When I went to law school, many, many, many years ago, they said when a judge sentences somebody he can do one of four things or all four things.
One is to punish the offender for what he or she has done. Two is to try to rehabilitate the offender and keep them from doing it again. Number three is to protect society from the offender so nobody else will be harmed. And four is to deter others so this type of crime won't happen again.
To do all four, they said, is hard to do and not common. Like most of the time you can only do one or two. And to do one or two you have to pick which one out of that that you feel has the highest priority.
101,000 people in the last full year of statistics died of overdoses in this country. Of the percentage per 100,000 population, Ohio was number one. And it's not a threat to the law enforcement. I know the law enforcement in this county works their behinds off and catches more drugs off the street than some -- most of the major counties in this state. But it's a national problem. It has to be dealt with at a national level. The only scary thing about those numbers is, I can only imagine what that number would be if it wasn't for NARCAN. You can almost multiply that by 10, which would put it up to a million people. That's worse than Covid ever thought about doing(Sentencing Hearing Transcript, p. 9, line 1 to p. 10, line 3).
{¶7} The trial court accepted the guilty plea and imposed an eight year minimum term, creating an indefinite term of eight to twelve years. Buck filed a timely appeal with one assignment of error: {¶8} "I. THE RECORD INDICATES THAT THE TRIAL COURT IMPOSED A SENTENCE BASED ON FACTORS OR CONSIDERATIONS THAT ARE EXTRANEOUS TO THOSE PERMITTED BY R.C. 2929.11 AND 2929.12 AND IS THEREFORE CONTRARY TO LAW."
STANDARD OF REVIEW
{¶9} 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. Revised Code 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. Revised Code 2953.08(G)(2) 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.
{¶10} "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce 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.
{¶11} A sentence is not clearly and convincingly contrary to law where the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes post release control, and sentences the defendant within the permissible statutory range." State v. Morris, 5th Dist. Ashland No. 20-COA-015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶12} The trial court must consider the purposes and factors contained in R.C. 2929.11 and 2929.12 but this Court has held that when the transcript of "the sentencing hearing is silent as to whether the trial court considered the factors in R.C. 2929.11 and 2929.12" a presumption arises "that a trial court considered the factors contained in R.C. 2929.12." State v. Hannah, 5th Dist. Richland No. 15-CA-1, 2015-Ohio-4438, ¶ 13. Accord State v. Tenney, 11th Dist. Ashtabula No. 2009-A-0015, 2010-Ohio-6248, 2010 WL 5289110, ¶ 14 and State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-3125, ¶ 18.
ANALYSIS
{¶13} Buck was convicted of a violation of R.C. 2925.02(A)(3), corrupting another with drugs, after he knowingly furnished Fentanyl to J.C. which she consumed, leading to her death. The offense was a felony of the second degree, subject to an "indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code." R.C. 2929.14(A)(2)(a). The trial court imposed a minimum term of eight years, so the sentence was within the statutory limit. Buck contends the trial court imposed "a sentence based on factors or considerations that are extraneous to those that are permitted by R.C. 2929.11 and 2929.12, [and] that [the] sentence is contrary to law." In support, he contends that the trial court considered past or present unaffiliated cases, failed to consider mitigating factors and did not impose a sentence that was "consistent with sentences imposed for similar crimes committed by similarly situated offenders." We have reviewed the record and find that Buck's argument has no merit.
Past or Present Unaffiliated Cases
{¶14} At sentencing, the trial court commented on the number of instances it has seen cases in which the use of controlled substances has led to death and the impact of illicit drug use nationwide. He mentioned his legal training and the goals of sentencing, and while the trial court did not cite R.C. 2929.11, his goals align with the requirement of that section of the Code. The trial court notes that the facts of some cases allow for more progress on one of the goals of sentencing, but does not discount that all of the goals must be considered as a part of sentencing. He simply observes that it is not always possible to have an equal impact on all of the goals of sentencing.
{¶15} During Buck's sentencing the trial court offers no comment from which a reader could discern whether the court found one of the goals of sentencing was more important than the other under the facts of this case, but R.C. 2929.11 does not require the trial court to make any specific findings as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require the trial court to "use specific language or make specific findings on the record in order to evince the requisite consideration of the applicable seriousness and recidivism factors." State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). While there is a mandatory duty to "consider" the relevant statutory factors under R.C. 2929.11 and 2929.12, the sentencing court is not required to engage in any factual findings under those statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17; State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. "The trial court has no 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." State v. Webb, 5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.
{¶16} Revised Code 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. "Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12." Id. at 42; see also, State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22. ["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."]
{¶17} The trial court received and reviewed Buck's presentence investigation report, heard statements from the prosecutor, defense counsel, and Buck. The trial court also reviewed letters from the family of the victim and Buck's family. The trial court also noted that the victim's family asked that he not sell drugs to the victim and that he responded by telling them that if he did not sell them to her, someone else would do so.
{¶18} In its sentencing entry, the trial court indicated it considered the principles and purposes of sentencing under Ohio Revised Code R.C. 2929.11 and the seriousness and recidivism factors under Ohio Revised Code R.C. 2929.12. The trial court sentenced Buck to a term within the statutory range and Buck has not demonstrated that the trial court imposed the sentence "based on impermissible considerations-i.e., considerations that fall outside those that are contained in R.C. and 2929.12." State v. Cottrell, 5th Dist. Muskingum No. CT2022-0061, 2023-Ohio-1391, ¶ 21, citing Bryant, supra.
{¶19} Appellant's sentence is neither excessive nor shocking. See, State v. Cottrell, 5th Dist. Muskingum No. CT2022-0061, 2023-Ohio-1391. Upon review, we find that the trial court's sentencing complies with applicable rules and sentencing statutes. The trial courts reference to the cases that have come before him and the nationwide impact of illicit drugs is not a consideration of factors outside R.C. 2929.11 or 2929.12, but a recognition of the trial court's obligation to impose a sentence that provides adequate deterrence to future criminal behavior by Buck and by others and to protect the public, both of which are factors that the trial court must consider. While Buck may disagree with the weight given to these factors by the trial judge, his sentence was within the applicable statutory range and therefore, we have no basis for concluding that it is contrary to law. State v. Elkins, 5th Dist. Knox No. 22CA000021, 2023-Ohio-1358, ¶ 22.
Failure to Consider Mitigating Factors
{¶20} Buck contends that the trial court failed to consider mitigating factors, based upon his self-serving conclusion that had the trial court given proper consideration to those factors, it would not have imposed an eight year prison term.
{¶21} The trial court acknowledged that it had received and reviewed the presentence investigation, that Buck pled guilty to a Bill of Information and "you kept all those people in the back from having to sit through jury trial and anguish over the facts and what happened and all the medical testimony and everything else that nobody needed to hear." (Sentencing Transcript, p. 7, lines 18-22; p. 10, lines 13-19). And the trial court noted that it had reviewed the letters it had received from both the family of the victim and Buck's family. The record supports a conclusion that the trial court considered the mitigating factors.
{¶22} The consideration of mitigating factors is mandated by R.C. 2929.12, subsection (E) in particular. However, as noted above, "[the] 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." State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22 as quoted in State v. Cottrell, 5th Dist. Muskingum No. CT2022-0061, 2023-Ohio-1391, ¶ 15. Buck's argument in this context is asking this court to vacate the sentence because the trial court failed to give sufficient weight to mitigating factors, when we have no authority to do so under the Jones decision. We will not exceed our authority.
Inconsistent with Sentences Imposed for Similar Crimes Committed by Similarly Situated Offenders
{¶23} Buck contends that facts and circumstances surrounding his case differ from other cases that received the same penalty, and he cites to two unrelated cases published on what Buck describes as the Muskingum County Prosecutor's website. Buck does not include a citation to the website, nor does he provide any citation to the specific Muskingum County Case other than the name of the defendant. The information described by Buck is not part of the record. We have often noted "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), quoting Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material or factual assertions contained in any brief in this court will not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16. We find that we may not consider the comparative information offered by Buck for the first time in his appeal.
{¶24} Buck's argument would fail even if we were to consider the merits. In State v. Hodge, 5th Dist. Guernsey No. 09 CA 23, 2010-Ohio-2717, ¶¶ 17-18, we found that simply pointing out an individual or series of cases with different results will not necessarily establish a record of inconsistency. Instead, we noted that the trial court was not burdened by an obligation to research prior sentences before reaching a sentencing decision and that "the legislature's purpose for inserting the consistency language contained in R.C. 2929.11(B) is to make consistency rather than uniformity the aim of the sentencing structure." We defined "uniformity" as a quality produced by a sentencing grid that will impose identical sentences on all persons convicted of the same offense with the same number of prior convictions. Consistency requires a trial court to weigh the same factors for each defendant, which will ultimately result in an outcome that is rational and predictable, but not necessarily identical. Under this meaning of "consistency," two defendants convicted of the same offense with a similar or identical history of recidivism could properly be sentenced to different terms of imprisonment.
{¶25} Buck's reference to a narrative of the facts and outcome of two unrelated cases drafted by an unidentified person does not demonstrate that the trial court failed to impose a sentence that was reasonably calculated to be consistent with sentences imposed for similar crimes committed by similar offenders, so we find that his argument would fail on its merits, if the materials he described had been made a part of the record.
{¶26} We hold that because the facts of the cases Buck describes was not part of the record below, we are unable to consider his argument. We also find that the trial court imposed a sentence within the statutory limits, did not consider inappropriate materials and gave due regard to mitigating facts. The Assignment of Error is denied.
{¶27} The decision of the Muskingum County Court of Common Pleas is affirmed.
Wise, John, P.J. and Delaney, J. concur.