Opinion
WD-20-056
06-25-2021
State of Ohio Appellee v. William Penn Johnson Appellant
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.
Trial Court No. 2019CR0521
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
DECISION AND JUDGMENT
ZMUDA, P.J.
I. Introduction
{¶ 1} This matter is before the court on appeal of the judgment of the Wood County Court of Common Pleas sentencing appellant, William Penn Johnson, to a 17- month term in prison, following his guilty plea to domestic violence in violation of R.C. 2919.25(A) and (D)(3). Finding no error, we affirm.
II. Background and Procedural History
{¶ 2} On July 16, 2019, Perrysburg police received a 911 call reporting an assault on a women at the Econo Lodge at 10667 Fremont Pike, in Wood County, Ohio. The 911 caller witnessed an unknown man shove an unknown female into a door. Police arrived and spoke to the woman, S.J., who indicated her husband, appellant, had been hitting her that day, and had punched her in the chest, grabbed her hair, and threw her head into the door. S.J. also told officers that appellant threatened to kill her. Appellant had previously been convicted of a family violence charge in Augusta, Georgia on December 27, 2018.
{¶ 3} On December 23, 2019, appellant was arraigned on a single count of domestic violence, in violation of R.C. 2919.25(A) and (D)(3), a felony of the fourth degree, and entered a plea of not guilty. Appellant withdrew that plea, and entered a plea of guilty to the charge on February 26, 2020. After engaging in the Crim.11 colloquy with appellant, the trial court accepted the plea, found appellant guilty, and continued the matter for a presentence investigation and sentencing.
{¶ 4} After a continuance of the sentencing hearing due to COVID 19, the trial court called the matter for a sentencing hearing on May 18, 2020, but appellant did not appear. Noting that appellant failed to participate with the presentence investigation and that "there were several bench warrants and active warrants issued at the time of the PSI," the trial court issued a bench warrant.
{¶ 5} Appellant was subsequently taken into custody, and appeared for sentencing on July 6, 2020. Appellant's trial counsel acknowledged appellant's "extensive past record" and the fact "he has been in prison before" and had a "new charge in Georgia" that led to his conveyance to Ohio on the trial court's warrant. Counsel also noted the toxic relationship between appellant and his wife, the victim, who had passed away, and argued that appellant's grief played a factor in his failure to appear for court and participate in preparation of the presentence investigation. Finally, appellant's trial counsel noted appellant's poor health and disability, as well as his potential for continued employment should he be placed on community control.
{¶ 6} The state recommended community control, pursuant to the plea agreement.
{¶ 7} The trial court recognized the presumption for community control, but found that presumption overcome by the physical harm to the victim, the threats of physical harm, and the prior conviction in which appellant caused physical harm to a person, noting appellant "previously served a prison term and [was] on a supervision order at the time of the [present] offense." The trial court articulated its consideration of the factors under R.C. 2929.11 and 2929.12, and determined a prison sentence to be appropriate. The trial court imposed a 17-month sentence and imposed court costs.
{¶ 8} Appellant filed a timely appeal of this judgment.
III. Assignments of Error
{¶ 9} Appellant now challenges his sentence in a single assignment of error, as follows:
THE COURT ABUSED ITS DISCRETION BY SENTENCING APPELLANT TO SERVE A SEVENTEEN-MONTH TERM IN THE OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS INSTEAD OF ORDERING COMMUNITY CONTROL SANCTIONS, AS RECOMMENDED BY THE STATE OF OHIO.
IV. Analysis
{¶ 10} Appellant challenges his sentence, arguing that the trial court erred in imposing a prison sentence contrary to the state's recommendation for a community control sanction. Appellant does not challenge the trial court's finding under R.C. 2919.13(B), relative to overcoming a presumption for community control. Instead, appellant argues that the trial court failed to properly consider the factors under R.C. 2929.11 and 2929.12, based on the near-maximum sentence and appellant's view that the trial court did not consider any mitigating factors, such as his need for rehabilitation, his health issues, and his "genuine remorse. Essentially, appellant argues his sentence is contrary to law because the record does not support the trial court's determination under R.C. 2929.11 and 2929.12, based on his disagreement with the trial court's consideration of mitigating factors.
{¶ 11} A felony sentence is reviewed under R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. An appellate court may increase, modify, or vacate and remand a sentence only upon a finding by clear and convincing evidence that either: (1) "the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant", or (2) "the sentence is otherwise contrary to law." R.C. 2953.08(G)(2).
{¶ 12} "Put simply, R.C. 2953.08(G)(2)(a) permits appellate courts to vacate or modify a sentence when certain statutory findings are not supported by the record. R.C. 2953.08(G)(2)(b) permits appellate courts to modify or vacate a sentence that is 'contrary to law.'" State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 7. Appellant bears the burden of identifying error, by clear and convincing evidence, under either provision. Id., citing State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6.
{¶ 13} A review of the sentence under R.C. 2953.08(G)(2) does not permit an independent determination as to whether the record supports his sentence under R.C. 2929.11 and R.C. 2929.12. As recently addressed by the Ohio Supreme Court in State v. Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 28, "R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a sentence if it clearly and convincingly finds that 'the record does not support the sentencing court's findings under' certain specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory provisions listed in R.C. 2953.08(G)(2)(a)." Simply put, there is "[n]othing in R.C. 2953.08(G)(2) [that] 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.
{¶ 14} We have previously applied Jones and found "R.C. 2953.08(G)(2)(a) does not permit us to review whether the trial court's R.C. 2929.11 and 2929.12 findings are supported by the record." Orzechowski at ¶ 10; see also State v. Woodmore, 6th Dist. Lucas No. L-20-1088, 2021-Ohio-1677, ¶ 17; State v. Buck, 6th Dist. Wood No. WD-20-031, 2021-Ohio-1073, ¶ 7; State v. White, 6th Dist. Wood No. WD-20-040, 2021-Ohio-987, ¶ 10. The Ohio Supreme Court's holding in Jones "precludes this court's review of felony sentences based solely on the appellant's contention that the trial court improperly considered the factors identified in R.C. 2929.11 and 2929.12 when it determined the appropriate sentence." Orzechowski at ¶ 13. "[A]ssigning error to the trial court's imposition of sentence as contrary to law based solely on its consideration of R.C. 2929.11 and 2929.12 is no longer grounds for this court to find reversible error." Id.
{¶ 15} Accordingly, we do not consider whether the record supports the trial court's findings under R.C. 2929.11 and 2929.12. Appellant's sole assignment of error, therefore, is not well-taken.
V. Conclusion
{¶ 16} For the forgoing reasons, we affirm the judgment of the Wood County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
MARK L. PIETRYKOWSKI, J., GENE A. ZMUDA, P.J., MYRON C. DUHART J. CONCUR.