Opinion
Appellate Case No. 2019-CA-85
11-13-2020
STATE OF OHIO Plaintiff-Appellee v. RAKEEM FORD Defendant-Appellant
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor's Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant
Trial Court Case No. 2019-CR-414A (Criminal Appeal from Common Pleas Court)
OPINION
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor's Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant WELBAUM, J.
{¶ 1} Defendant-appellant, Rakeem Ford, appeals from his conviction in the Clark County Court of Common Pleas after he pled guilty to one count of possession of heroin and one count of obstructing official business. In support of his appeal, Ford contends that his aggregate two-year prison sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. Ford also claims that the trial court erred by imposing consecutive sentences and by imposing his sentence without considering the purposes and principles of felony sentencing in R.C. 2929.11. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On July 9, 2019, a Clark County grand jury returned an indictment charging Ford with single counts of trafficking in heroin, possession of heroin, trafficking in marijuana, improper handling of a firearm in a motor vehicle, receiving stolen property, and obstructing official business. The charge for receiving stolen property and each of the drug charges included a firearm specification. The charges for trafficking in heroin and possession of heroin also included forfeiture specifications for $2,230.
{¶ 3} The charges stemmed from Ford's encounter with police while he was riding as a front-seat passenger in a vehicle that was stopped for minor traffic violations during the early morning hours of March 17, 2019. The officer who initiated the traffic stop searched the driver and Ford after he noticed odors of brunt marijuana and an alcoholic beverage coming from the interior of the vehicle. The officer also observed a baggie of marijuana lying on Ford's seat in plain view. While searching Ford, the officer located several baggies of marijuana, a large bundle of currency, and a small baggie of off-white powder in the pockets of Ford's pants. The off-white powder was later confirmed to be 0.714 grams of heroin.
{¶ 4} When the officer attempted to arrest and handcuff Ford, Ford forcefully pulled away and began to flee from the officer on foot. As the officer was chasing Ford, a vehicle driven by the mother of one of Ford's children, Kamila Portis, approached them and drove directly at the officer in an aggressive manner. Portis then slammed on her vehicle's brakes and Ford entered the vehicle. The officer then approached the vehicle and ordered Portis to stop, but she instead sped away as the officer opened the driver's-side door. For safety purposes, the officer did not pursue the vehicle containing Ford and Portis. The officer, however, went back to search the vehicle that he had previously stopped and found a backpack containing a firearm and a loaded magazine. Ford was later placed in custody after a warrant was issued for his arrest.
{¶ 5} On November 5, 2019, Ford entered into a plea agreement with the State whereby he pled guilty to possession of heroin in violation of R.C. 2925.11(A) and obstructing official business in violation of R.C. 2921.31(A), both fifth-degree felonies. Ford also agreed to the forfeiture of $2,230 that was found on his person during the offenses in question. In exchange for Ford's guilty plea, the State agreed to dismiss the remaining charges and firearm specifications, including the firearm specification attached to the charge for possession of heroin. After conducting the necessary plea colloquy, the trial court accepted Ford's guilty plea and ordered a presentence investigation report ("PSI").
{¶ 6} At Ford's sentencing hearing, the trial court sentenced Ford to 12 months in prison for each of his two offenses. The trial court then ordered the sentences to be served consecutively for a total prison term of two years. The trial court also ordered Ford to forfeit the $2,230 found on his person. Ford now appeals, challenging his sentence and raising a single assignment of error for review.
Assignment of Error
{¶ 7} Under his assignment of error, Ford raises several arguments concerning the aggregate two-year prison sentence imposed by the trial court. Ford's primary argument is that his sentence violates the constitutional prohibition against cruel and unusual punishment under the Eighth Amendment. Ford also claims that the trial court erred by imposing consecutive sentences and by failing to consider the purposes and principles of felony sentencing in R.C. 2929.11. For the reasons outlined below, we find that Ford's claims lack merit.
{¶ 8} When reviewing felony sentences, this court must apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 and 7. Under that statute, an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it clearly and convincingly finds either: (1) the record does not support the sentencing court's findings under certain statutes (including R.C. 2929.14(C)(4), which concerns the imposition of consecutive sentences); or (2) the sentence is otherwise contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).
{¶ 9} As part of his argument, Ford is challenging the trial court's imposition of consecutive sentences. Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive sentences if it finds that: (1) consecutive service is necessary to protect the public from future crime or to punish the offender; (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) one or more of the following three findings are satisfied:
(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.R.C. 2929.14(C)(4)(a)-(c).
(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.
{¶ 10} "[A] trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings." State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. "[W]here a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an appellate court may not reverse the trial court's imposition of consecutive sentences unless it first clearly and convincingly finds that the record does not support the trial court's findings." State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). The consecutive nature of the trial court's sentencing decision should therefore stand "unless the record overwhelmingly supports a contrary result." (Citation omitted.) Id. at ¶ 39.
{¶ 11} In this case, the record establishes that the trial court made all the required consecutive-sentence findings at the sentencing hearing. The record also establishes that the trial court included those findings in the sentencing entry. Specifically, the trial court found that:
[C]onsecutive service is necessary to protect the public from future crime by the defendant * * * and to punish the defendant. Consecutive sentences are not disproportionate to the seriousness of his conduct and the danger he poses to the public. The Court also finds the defendant committed one or more multiple offenses while he was awaiting trial or sentencing, and the defendant's history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime by the defendant[.]Sentencing Tr. p. 12. See also Judgment Entry of Conviction p. 2.
{¶ 12} Upon review, we do not clearly and convincingly find that the record fails to support the trial court's consecutive-sentence findings. The PSI indicated that Ford had a lengthy criminal history that included several juvenile adjudications and adult convictions. For instance, as a juvenile, Ford was adjudicated for arson, disorderly conduct, aggravated assault, criminal damaging, criminal trespass, and several probation violations. As an adult, Ford had been convicted of receiving stolen property, aggravated robbery, vandalism, and several traffic violations, including driving under suspension and driving without a valid license. More recently, in 2015, Ford was convicted of fleeing and eluding and having a weapon while under disability. Then, in 2018, Ford was charged with driving under suspension in Madison County, where he failed to appear at court. This resulted in Madison County issuing a warrant for Ford's arrest in February 2019. Ford then committed the instant offenses while the Madison County warrant was active.
{¶ 13} The PSI also established that when Ford committed the instant offenses, he engaged in conduct that could have caused serious physical harm to a police officer. As previously noted, Ford jumped into a vehicle that drove directly at the officer who was chasing Ford. The vehicle then sped away as the officer attempted to open the driver's-side door. The PSI also indicated that a firearm was discovered in the vehicle Ford was initially traveling in. Although the State mentioned the firearm at the sentencing hearing, the trial court stated that because the firearm specifications were dismissed, it did not consider the firearm when sentencing Ford.
{¶ 14} The PSI further established that Ford scored high on the Ohio Risk Assessment Survey, which indicates a high risk of recidivism. The PSI also indicated that over the previous 12 years, Ford had served several jail terms, paid several fines, and performed several hours of community service, and yet had not responded favorably to these sanctions. Ford was also found to have shown no genuine remorse for his conduct in this case. Based on all the foregoing information, we cannot say that the record fails to support the trial court's consecutive-sentence findings. Therefore, we find no error with regard to the trial court's decision to impose consecutive sentences.
{¶ 15} We also do not clearly and convincingly find that Ford's sentence was otherwise contrary to law. "A sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12." (Citation omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.). " 'The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.' " State v. Fyffe, 2018-Ohio-112, 109 N.E.3d 51, ¶ 31 (2d Dist.), quoting State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).
{¶ 16} Contrary to Ford's claim otherwise, the record of the sentencing hearing and the sentencing entry indicate that the trial court considered the purposes and principles of felony sentencing in R.C. 2929.11, as well as the sentencing factors in R.C. 2929.12. See Sentencing Tr. p. 11; Judgment Entry of Conviction p. 1. In addition, the 12-month prison sentence imposed for each of Ford's offenses was within the authorized statutory range for fifth-degree felonies. See R.C. 2929.14(A)(5). Therefore, we do not clearly and convincingly find that Ford's individual prison sentences were contrary to law.
{¶ 17} "[A]n 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." Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. "If the record does not contain evidence from which we can determine that the sentence was clearly and convincingly improper, then we are without authority to vacate it." State v. Pack, 2d Dist. Clark No. 2018-CA-52, 2018-Ohio-4632, ¶ 12. Therefore, "the record must contain substantial affirmative factual information in support of the defendant to conclude that the trial court's sentencing decision was in error." Id., citing Withrow, 2016-Ohio-2884, 64 N.E.3d 553, at ¶ 40.
{¶ 18} After a thorough review of the record, we do not find by clear and convincing evidence that the record fails to support the trial court's decision to impose maximum, consecutive sentences. As we previously discussed, Ford had a lengthy criminal history, engaged in conduct that put a police officer in harm's way, had not responded favorably to previously imposed sanctions, received a high risk-of-recidivism score, and showed no genuine remorse for his conduct. Therefore, when considering all of the above, we cannot say that Ford's aggregate two-year prison sentence was unsupported by the record.
{¶ 19} We also find that Ford's allegation of cruel and unusual punishment is unpersuasive. "In addition to protecting individuals from punishment such as torture, the Eighth Amendment has been invoked to prohibit punishment that is disproportionate to the crime committed." State v. Harding, 2d Dist. Montgomery No. 20801, 2006-Ohio-481, ¶ 77, citing State v. Weitbrecht, 86 Ohio St.3d 368, 370, 715 N.E.2d 167 (1999). "Eighth Amendment violations are rare, and instances of cruel and unusual punishment are limited to those punishments, which, under the circumstances, would be considered shocking to any reasonable person." Id., citing Weitbrecht at 370. (Other citation omitted.) "The punishment must be so greatly disproportionate to the offense that it shocks the sense of justice of the community." Id. Because "we are bound to give substantial deference to the General Assembly, which has established a specific range of punishment for every offense," as a general rule, a sentence " 'that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.' " State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21 and 24, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). Accord State v. Mayberry, 2014-Ohio-4706, 22 N.E.3d 222, ¶ 38 (2d Dist.).
{¶ 20} In this case, each of Ford's individual prison sentences fell within the authorized statutory range for fifth-degree felonies. Consecutive service of those sentences was also authorized under R.C. 2929.14(C)(4). Ford's aggregate two-year prison sentence was also not so greatly disproportionate to his offenses that it would shock a reasonable person or the community's sense of justice. Therefore, because Ford's sentence was statutorily sanctioned and would not shock a reasonable person or the community's sense of justice, we cannot say that Ford's sentence amounted to cruel and unusual punishment under the Eighth Amendment. See Mayberry at ¶ 38.
{¶ 21} For all the foregoing reasons, Ford's sole assignment of error is overruled.
Conclusion
{¶ 22} Having overruled Ford's assignment of error, the judgment of the trial court is affirmed. TUCKER, P.J. and DONOVAN, J., concur. Copies sent to: John M. Lintz
Daniel F. Getty
Hon. Richard J. O'Neill