Opinion
CT2023-0005
07-31-2023
STATE OF OHIO Plaintiff-Appellee v. KAREEM REDDICK Defendant-Appellant
For Plaintiff-Appellee JOHN CONNOR DEVER For Defendant-Appellant CHRIS BRIGDON
Appeal from the Court of Common Pleas, Case No. CR2022-0566
JUDGMENT: Affirmed
For Plaintiff-Appellee JOHN CONNOR DEVER
For Defendant-Appellant CHRIS BRIGDON
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Andrew J. King, J.
OPINION
King, J.
{¶ 1} Defendant-Appellant, Kareem Reddick, appeals his January 13, 2023 sentence from the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-Appellee is the state of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 11, 2023, Reddick pled guilty to one count of failure to register in violation of R.C. 2950.05, a felony of the fourth degree. In 2017, Reddick had been convicted in Guernsey County of one count of gross sexual imposition and one count of abduction with sexual motivation and was required to register as a sexually oriented offender. Reddick moved to Muskingum County close to a high school and failed to register his new address. By entry filed January 13, 2023, the trial court sentenced Reddick to twelve months in prison. The trial court noted Reddick was on post-release control from the Guernsey County case. He had almost four years remaining. The trial court terminated the post-release control and ordered Reddick to serve three years of the post-release control time in prison, to be served consecutively.
{¶ 3} Reddick filed an appeal with the following assignment of error:
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{¶ 4} "SHOULD (SIC) THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION REGARDING THE IMPOSITION OF POST RELEASE CONTROL TIME ("PRC") BECAUSE THE IMPOSITION WAS NOT SUPPORTED BY THE RECORD."
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{¶ 5} In his sole assignment of error, Reddick claims the trial court's imposition of post-release control time was not supported by the record. We disagree.
{¶ 6} R.C. 2929.141 governs commission of offense by person under post-release control or transitional control. Subsection (A)(1) states the following:
(A) Upon the conviction of or plea of guilty to a felony by a person on post-release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may do either of the following regardless of whether the sentencing court or another court of this state imposed the original prison term for which the person is on post-release control: (1) In addition to any prison term for the new felony, impose a prison term for the post-release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post-release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony.
{¶ 7} Following his guilty plea, Reddick waived any presentence investigation. T. at 13. The trial court proceeded to sentencing. Defense counsel informed the trial court that when Reddick was confronted by police, he admitted to living at that location and
"took full responsibility for what he was doing." Id. at 12. After sentencing Reddick to the joint recommendation of twelve months in prison, the trial court terminated his post-release control with "nearly 4 years of time left on it." Id. at 16. The trial court imposed three years stating, "I'll give you some credit for coming forward from the beginning." Id.
{¶ 8} Reddick correctly points out a trial court has discretion to find an individual is no longer amenable to post-release control, terminate post-release control from a prior felony, and impose a prison sentence. Appellant's Brief at 5. Reddick argues the trial court's imposition of three additional years of post-release control time in his case when he was sentenced to twelve months on the underlying offense was contrary to law and "shocks the sense of justice." Id. at 4, 7. Reddick argues his sentence was in contravention of R.C. 2929.11 and 2929.12. Id. at 9.
{¶ 9} This court reviews 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. Under subsection (G)(2), this court "may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing" if we clearly and convincingly find the sentence is contrary to law.
{¶ 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, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶ 12} R.C. 2929.11 governs the overriding purposes of felony sentencing and R.C. 2929.12 governs factors to consider in felony sentencing. As recently stated by the Supreme Court of Ohio, 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. "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.
{¶ 13} The Supreme Court of Ohio revisited Jones and stated, "[n]othing about that holding should be construed as prohibiting appellate review of a sentence when the claim is that the sentence was imposed based on impermissible considerations-i.e., considerations that fall outside those that are contained in R.C. 2929.11 and 2929.12." State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68. Reddick is not arguing the sentence was imposed based on impermissible considerations; instead, Reddick argues the sentence is unduly harsh.
{¶ 14} We note the trial court did not have the benefit of a presentence investigation report because Reddick waived it and proceeded to sentencing. There is no dispute that the trial court had discretion to impose the remainder of Reddick's post-release control which was close to four years. Instead, the trial court imposed three years. While it is three times as much as the twelve-month sentence for the underlying offense, the trial court was within its province to impose the full remainder of the post-release control time, but chose to impose less. In its January 13, 2023 entry, the trial court stated it considered the factors set forth in R.C. 2929.11 and 2929.12 and found Reddick was "no longer amenable to Post Release Control."
{¶ 15} Upon review, we find the trial court's sentence is not clearly and convincingly contrary to law. The trial court considered the R.C. 2929.11 and 2929.12 factors, properly terminated and imposed Reddick's remaining post-release control time pursuant to R.C. 2929.141, properly advised Reddick of new post-release control time, and sentenced Reddick within the statutory range.
{¶ 16} The sole assignment of error is denied.
{¶ 17} The judgment of the Court of Common Pleas of Muskingum County, Ohio is hereby affirmed.
King, J. Gwin, P.J. and Hoffman, J. concur.