Opinion
No. 107641
05-23-2019
STATE OF OHIO, Plaintiff-Appellee, v. BRETT MORRIS, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kevin E. Bringman, Assistant Prosecuting Attorney, for appellee. Mary Catherine Corrigan, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627325-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kevin E. Bringman, Assistant Prosecuting Attorney, for appellee. Mary Catherine Corrigan, for appellant. PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Brett Morris ("Morris") appeals his 30-month prison sentence after pleading guilty to attempted felonious assault and assigns the following error for our review:
I. The trial court's sentence was contrary to law.
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's judgment. The apposite facts follow.
{¶ 3} On July 24, 2018, Morris pled guilty to one count of attempted felonious assault in violation of R.C. 2903.11(A)(1) and 2923.02, a third-degree felony. On August 20, 2018, the court sentenced Morris to 30 months in prison. It is from this order that Morris appeals.
Felony sentencing standard of review
{¶ 4} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences, the appellate court's standard is not whether the sentencing court abused its discretion; rather, if this court "clearly and convincingly" finds that (1) "the record does not support the sentencing court's findings under" R.C. Chapter 2929 or (2) "the sentence is otherwise contrary to law," then we may conclude that the court erred in sentencing. See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.
{¶ 5} A sentence is not clearly and convincingly contrary to law "where the trial court considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease control, and sentences a defendant within the permissible statutory range." State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, & 10.
{¶ 6} Pursuant to R.C. 2929.11(A), the two overriding purposes of felony sentencing are "to protect the public from future crime by the offender and others" and "to punish the offender using the minimum sanctions that the court determines accomplish those purposes * * *." Additionally, 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 committed by similar offenders." R.C. 2929.11(B).
{¶ 7} Furthermore, in imposing a felony sentence, "the court shall consider the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the likelihood of the offender's recidivism * * *." R.C. 2929.12. However, this court has held that "[a]lthough the trial court must consider the principles and purposes of sentencing as well as the mitigating factors, the court is not required to use particular language or make specific findings on the record regarding its consideration of those factors." State v. Carter, 8th Dist. Cuyahoga No. 103279, 2016-Ohio-2725, & 15.
{¶ 8} It is undisputed that Morris's 30-month prison sentence is within the permissible statutory range of between 9 and 36 months in prison for a third-degree felony conviction. R.C. 2929.14(A)(3)(b). On appeal, Morris argues that his sentence is contrary to law "because the record, including the Trial Court's journal entry, is devoid of any evidence that the Trial Court considered the factors in ORC 2929.12, and the oral record does not support the journal entry in demonstrating that the Trial Court considered the factors in ORC 2929.11."
{¶ 9} At Morris's sentencing hearing, the court stated on the record that it reviewed Morris's presentence investigation report. The state offered a summary of the incident associated with Morris's conviction, which occurred on March 12, 2018, when Morris held his girlfriend against her will in her apartment and pushed her resulting in a broken arm. Evidence in the record shows that Morris has a criminal history, including two prior domestic violence protection orders in the state of New Jersey. Furthermore, on the day of this incident, Morris fled back to New Jersey on a Greyhound bus and had to be extradited to Ohio for this case.
{¶ 10} The victim testified, in part, as follows:
I wish I could stand before you and tell you this has been an easy journey; however, that's not the case. Today though I am able to finally allow my voice to be heard.
Unfortunately, Mr. Morris has deep anger issues and a lack of respect for women as he openly admitted in the letter he wrote me. As a result of Mr. Morris not knowing how to handle himself correctly, he chose to use me as his release mechanism. I endured many times of his choice to use physical force against me. Two specific times are when he busted out my two front teeth and when he broke my left arm. As a result, I have lifelong damage.
* * *
I now have a plate and ten screws in my left arm which extends from my shoulder to my elbow, and I wake in pain every day and attend therapy twice weekly.
I had to spend two nights in the hospital. I had 54 staples in my arm, which has now left me with a large scar.
* * *
This has also affected me mentally and emotionally. Trying to rebuild myself as well as relationships with others has been difficult. I don't trust others. I have been attending and will continue to attend counseling once weekly. I also participate in trauma, depression and anxiety peer support groups weekly, as well as see my psychiatrist monthly.
I have tried to remain in my current home, however, due to the constant vivid, visual replaying of everything that happened, I am moving.
Your Honor, I don't hate Mr. Morris. And moving forward I would like to one day forgive him. I feel he needs help to deal with some of the things in his life so he can be a safe, productive member of society. I don't think that's right now though. And I hate the feeling of knowing that someone else can go through this.
{¶ 11} Defense counsel argued at the sentencing hearing that Morris was very remorseful for his actions, the victim has a history of medical issues including frequent dislocation of her left shoulder, and Morris did not "flee" on the day of the incident; rather, his plan was to return to New Jersey, which lead to an argument between Morris and the victim. According to defense counsel, Morris remained at the victim's apartment when EMS arrived to take her to the hospital. Morris spoke with the police that day, and he was neither charged nor arrested at the time. Defense counsel requested that the court sentence Morris to community control sanctions.
{¶ 12} Morris also spoke at his sentencing hearing, expressing remorse and regret for his actions. "A push turned into something that I regret it went any further than just a push. There was no malice and no intent for me to intentionally break her arm. That was something that happened by accident. As she fell onto the bed, she braced for impact and her arm popped out of place." According to Morris, he felt it was best to have no contact with the victim after the incident, so he went back to New Jersey as planned. Morris also told the court that he recently became reconnected with his two sons, and he has "been in anger management and mental health classes prior to even coming to Cleveland. * * * As I was incarcerated and while I was free, I was going to those classes on my own so I could better myself." Morris further stated that "I know I have some things that I have to work on, but those things did not come into play this day." Morris stated that if he were sentenced to community control sanctions, he "would utilize it to my advantage so that I can make a positive reintegration into society and finish doing what I was doing for my community back in New Jersey and possibly out here."
{¶ 13} In sentencing Morris, the court stated that it considered "the relationship or the situation" to determine whether this offense was more or less serious "than what I might otherwise expect * * *." The court also considered Morris's "criminal background" to "make an assessment as to whether * * * he would likely reoffend in the future." The court found that, in the case at hand, "the probation department has provided some view in that regard, and they have suggested that Mr. Morris is a high risk." The court also found that Morris "had some understanding" that the victim "may be more fragile than others" in relation to the potential for injury to her left arm. The court noted that "you have to take the victim as you find them," and Morris "has to be responsible" for the victim's injury "under our view of the law * * *."
{¶ 14} The court found that Morris had previously served prison time in New Jersey for "an assault-related matter * * *." The court also found that the victim's broken arm in this case was a "serious physical injury." The court accepted Morris's "acknowledgment of his conduct," but found that this did not diminish the "seriousness of the circumstances." The court found that community control sanctions would not be appropriate in this case, and sentenced Morris to 30 months in prison. The court noted that this was less than the maximum of 36 months in prison.
{¶ 15} The August 21, 2018 sentencing journal entry states that "[t]he court considered all required factors of the law. The court finds that prison is consistent with the purpose of R.C. 2929.11."
{¶ 16} Upon review, we find that the record supports the court's findings in the instant case. The court discussed on the record the seriousness and recidivism factors, and although the court did not use the "magic words" associated with the principles and purposes of felony sentencing, evidence in the record shows that the court considered these factors. See State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶ 10 ("it is not necessary for the trial court to articulate its consideration of each individual factor as long as it is evident from the record that the principles of sentencing were considered").
{¶ 17} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
PATRICIA ANN BLACKMON, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR