Opinion
No. 106580
08-23-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. MITCHELL WHITE, JR. DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Edward M. Heindel 2200 Terminal Tower 50 Public Square Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Anna Woods Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-618670-A BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.
ATTORNEY FOR APPELLANT
Edward M. Heindel
2200 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Anna Woods
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Mitchell White, Jr., appeals his sentence. He raises one assignment of error for our review:
The trial court erred when it imposed a one-year prison term because the record does not support the sentencing court's statutory findings and the sentence is contrary to law.
{¶2} Finding no merit to White's appeal, we affirm the trial court's judgment.
I. Procedural History and Factual Background
{¶3} In July 2017, White was indicted on two counts: one count of second-degree felonious assault and one count of first-degree misdemeanor domestic violence. A few months later, White pleaded guilty to an amended indictment of attempted abduction, a fourth-degree felony, in violation of R.C. 2923.02 and 2905.02(A)(2), and domestic violence in violation of R.C. 2919.25 as charged in the indictment.
{¶4} The trial court sentenced White to an aggregate of one year in prison: 12 months in prison for abduction and 6 months in the county jail for domestic violence, which the trial court ordered to run concurrently to one another. The trial court also imposed costs and informed White that he may be subject to up to three years of postrelease control upon his release from prison. It is from this judgment that White now appeals.
II. Standard of Review
{¶5} An appellate court must conduct a meaningful review of the trial court's sentencing decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892. R.C. 2953.08(G)(2) provides that our review of felony sentences is not an abuse of discretion. Instead, an appellate court must "review the record, including the findings underlying the sentence or modification given by the sentencing court." Id. If an appellate court clearly and convincingly finds either that (1) the record does not support the sentencing court's findings under any of the statutes that require findings, or (2) the sentence is otherwise contrary to law, then "the appellate court may increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing." Id. The Ohio Supreme Court has further explained that
some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellant court finds by clear and convincing evidence that the record does not support the sentence.State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
III. R.C. 2929.11 and 2929.12
{¶6} White argues that his one-year prison sentence is not supported by the record. He maintains that the trial court failed to take into consideration the principles and purposes of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12.
{¶7} When sentencing a defendant, the court must consider the purpose and principles of felony sentencing set forth in R.C. 2929.11 and the serious and recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. R.C. 2929.11(A) and (B) states that the "overriding purposes of felony sentencing are to protect the public from future crime by the offender and others to punish the offender using the minimum sanctions that the court determines accomplish those purposes" and requires that the sentence be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim."
{¶8} R.C. 2929.12 sets forth a nonexhaustive list of factors that the court must consider in relation to the seriousness of the underlying crime and likelihood of recidivism, including "(1) the physical, psychological, and economic harm suffered by the victim, (2) the defendant's prior criminal record, (3) whether the defendant shows any remorse, and (4) any other relevant factors." State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26, citing R.C. 2929.12(B) and (D).
{¶9} Trial courts, however, are not required to make factual findings under R.C. 2929.11 or 2929.12 before imposing the maximum sentence. Id. at ¶ 27. In fact, "[c]onsideration of the factors is presumed unless the defendant affirmatively shows otherwise." State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12, citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234. "[T]his court has consistently recognized that a trial court's statement in the journal entry that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes." Kronenberg at ¶ 27, citing State v. Wright, 8th Dist. Cuyahoga No. 100283, 2014-Ohio-3321.
{¶10} At the sentencing hearing in this case, the trial court indicated that it had received and reviewed the presentence investigation report. The trial court then asked defense counsel if she had reviewed it as well. Defense counsel replied that she had and stated that she did not need to make any corrections. Defense counsel then informed the court of the following mitigating factors: (1) White did not have any prior felonies, (2) that on the night of the incident, White and the victim were "highly intoxicated," (3) White had accepted responsibility for his actions, (4) while White was not working at the time of the sentencing hearing, he was trying to find employment, (5) although White had not been diagnosed with any mental health issues, he and the victim had a child who was born stillborn approximately one year before the incident, and (6) that White had not fully dealt with losing a child, which led to him abusing alcohol and marijuana. Defense counsel asked the court to sentence White to community control sanctions with grief counseling so that he could address the issues underlying his alcohol and marijuana abuse.
{¶11} White informed the court that the incident occurred just after Father's Day and that he "just got out of his mind, just abusing alcohol and weed and [he] end[ed] up trying to harm [himself]." White stated that he did not even remember doing what he had done to the victim. He explained that he has trouble sleeping knowing what he did to the victim.
{¶12} The state told the court that a verbal argument between White and his then live-in girlfriend became physical. The state explained that White kicked his girlfriend in the head multiple times, bit her finger, and "then subsequently grabbed a steak knife, chased her outside of the residence, then held her against her will with this knife, and as she was trying to pull the knife away, ended up cutting her finger while it was held to her throat."
{¶13} The victim informed the court that she did not want White to go to prison. She opined that he only did it because he was intoxicated and that he did not mean for it to happen.
{¶14} The trial court stated that it considered the purposes and principles of felony sentencing and "all the appropriate recidivism and seriousness factors." The court told White that it was "extremely concerning to the court that a weapon was involved in this matter and that [his] recollection [was] hazy because of intoxication." The court expressed that it was concerned as to what would happen if he got "drunk again" or "high." The court told the victim that it understood she still had feelings for White, but that she was fortunate White did not "do something worse to her" when he blacked out.
{¶15} The court then stated it considered the fact that this was his first felony and that he accepted responsibility, which mitigates the penalty, but it was "just too serious of a situation," so it was imposing one year in prison for attempted abduction.
{¶16} White claims that because he was convicted of a fourth-degree felony, R.C. 2929.13 "instructs that community control sanctions are the preferred method of dealing with felonies of the fourth and fifth degree." But White concedes that community control sanctions are not the "preferred method" for offenses of violence. White further concedes that abduction and domestic violence are offenses of violence. R.C. 2901.01(A)(9)(a). Thus, White pleaded guilty to two offenses of violence in this case and, therefore, community control sanctions was not the preferred sentence.
{¶17} White further argues that the trial court failed to consider the following mitigating factors: (1) he was intoxicated on the night of the incident, (2) he did not have any prior felonies, (3) he did not have a pattern of domestic violence, (4) the victim did not want White to go to prison, and (5) he did not have any "diagnosed mental difficulties" but that he and the victim had lost a child.
{¶18} After review, we disagree that the trial court did not consider these mitigating factors. Indeed, the trial court explicitly addressed most of these factors on the record despite not having to do so. See State v. Gaines, 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11 (even where a trial court does not reference its consideration of R.C. 2929.11 and 2929.12 at the sentencing hearing or in its sentencing journal entry, this court has held that it can be presumed that the trial court considered the relevant sentencing factors under R.C. 2929.11 and 2929.12 unless the defendant affirmatively shows otherwise).
{¶19} The trial court stated in its journal entry that it considered all of the relevant statutory factors when sentencing White. The record also reflects that the trial court expressly stated on the record at the sentencing hearing that it had considered the purposes and principles purposes of sentencing and the seriousness and recidivism factors relevant to the offense before sentencing White. The record further reflects that the trial court reviewed the presentence investigation report and was aware that White did not have any prior felonies. Defense counsel also informed the court of each of these mitigating factors at the sentencing hearing. Nonetheless, the trial court found that the seriousness of White's actions, especially chasing the victim with a knife and then holding it to her throat — without remembering that he did so — were very serious actions that required serious consequences.
{¶20} After review, we find that White has not affirmatively shown that the trial court failed to consider the relevant statutory factors. We further find that the record supports the trial court's sentence of one year in prison for attempted abduction and six months concurrent in the county jail for domestic violence.
{¶21} White's sole assignment of error is overruled.
{¶22} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal 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/_________
MARY J. BOYLE, JUDGE EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR