State v. Anderson

2024 Ohio 2191

Opinion

[Cite as State v. Anderson, 2024-Ohio-2191.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-49 : v. : Trial Court Case No. 22-CR-0913 : CARDEN ANDERSON : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on June 7, 2024

JENNIFER E. MARIETTA, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

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TUCKER, J.

{¶ 1} Carden Anderson appeals from his conviction following a guilty plea to three

counts of felonious assault.

{¶ 2} Anderson contends the trial court violated Crim.R. 11 during his plea hearing

by failing to advise him properly regarding his potential maximum sentence and his

eligibility for community-control sanctions. He also claims the trial court incorrectly -2-

calculated jail-time credit and failed to consider statutory sentencing factors regarding his

youth.

{¶ 3} We conclude that the trial court properly advised Anderson in accordance

with Crim.R. 11. We also reject his argument regarding the trial court’s failure to consider

statutory factors regarding his youth. We agree, however, that the trial court incorrectly

computed his jail-time credit. Accordingly, the trial court’s judgment will be affirmed in part

and reversed in part, and the case will be remanded for recalculation of jail-time credit.

I. Background

{¶ 4} Less than three months before his eighteenth birthday, Anderson

participated in a drive-by shooting that injured three people inside of a residence.

Following the filing of a delinquency complaint in juvenile court, Anderson was bound over

to the common pleas court and charged with three counts of felonious assault, improperly

discharging a firearm at or into a habitation, discharging a firearm at or near a prohibited

premises, improper handling of a firearm in a motor vehicle, and having a weapon while

under disability. The charges included several firearm specifications and specifications

for discharging a firearm from a vehicle.

{¶ 5} Anderson subsequently entered into a written plea agreement with the State.

The agreement provided for him to plead guilty to three counts of felonious assault and

to testify against co-defendants in exchange for dismissal of all other charges and

specifications. The trial court held a plea hearing on March 17, 2023. During the hearing,

the trial court engaged in a Crim.R. 11 colloquy with Anderson. As relevant here, it

advised him of the maximum penalty for felonious assault and explained the Reagan -3-

Tokes Law. The trial court did not specifically mention consecutive sentencing or

community-control eligibility. At the conclusion of the hearing, the trial court accepted the

plea and made findings of guilt. The trial court later imposed three consecutive sentences

resulting in an aggregate prison term of 22 to 26 years. Anderson appeals, advancing

three assignments of error.

II. Analysis

{¶ 6} The first assignment of error states:

The Court failed to comply with Crim.R. 11 when it failed to advise

Defendant appropriately of the potential maximum sentence and when

it did not advise him of his eligibility for community control sanctions.

{¶ 7} Anderson’s first assignment of error invokes Crim.R. 11(C)(2)(a), which

obligated the trial court at the plea hearing to be sure he understood “the maximum

penalty involved” and “if applicable,” that he was “not eligible” for community-control

sanctions. He contends the rule’s reference to “the maximum penalty” obligated the trial

court to advise him it could impose consecutive sentences. He also claims the rule

obligated the trial court to advise him that he was eligible for community-control sanctions.

Given the trial court’s failure to address these issues, Anderson asserts that he is not

required to show prejudice and that his plea must be vacated.

{¶ 8} Upon review, we find Anderson’s argument to be unpersuasive. Although

Crim.R. 11(C)(2)(a) obligates a trial court to inform a defendant of “the maximum penalty

involved,” this court consistently has held that it does not apply to potential consecutive

sentencing. State v. Shade, 2d Dist. Montgomery Nos. 29373 & 29374, 2022-Ohio-3845, -4-

¶ 13 (citing cases); see also State v. Willard, 2021-Ohio-2552, 175 N.E.3d 989, ¶ 63-70

(11th Dist.). In Shade, we did recognize that Crim.R. 11(C)(2)(a) might require a

defendant to be advised of consecutive sentences if they were a mandatory, guaranteed

consequence of his plea. Shade at ¶ 14-16. But neither Shade nor the present case

involved mandatory consecutive sentences.

{¶ 9} Anderson relies on State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132,

124 N.E.3d 766, to support his argument about Crim.R. 11(C)(2)(a). Bishop involved a

defendant who committed a new offense while on post-release control. The Ohio

Supreme Court held that Crim.R. 11(C)(2)(a) obligated the trial court to inform the

defendant that upon conviction for the new felony it could terminate post-release control

and impose a mandatory consecutive sentence for the violation. Id. at ¶ 17, 21. Notably,

however, in Shade, a post-Bishop case that did not involve a consecutive sentence for a

post-release-control violation, we adhered to the general rule that a trial court need not

advise a defendant of potential consecutive sentences.

{¶ 10} We did the same in a very recent case involving one of Anderson’s co-

defendants. In State v. Koob, 2d Dist. Clark No. 2023-CA-42, 2024-Ohio-1073, one of

Anderson’s co-defendants pled guilty to the same three charges as Anderson and

received the same consecutive sentences from the same judge. On appeal, the co-

defendant argued that his plea was invalid because the judge had not informed him of

the potential for consecutive sentences on each count of felonious assault. We rejected

this argument, holding that Crim.R. 11(C) required no such advisement. Id. at ¶ 13; see

also State v. Swaney, 2d Dist. Montgomery Nos. 28357 & 28515, 2020-Ohio-210, ¶ 28 -5-

(noting that trial courts normally are not required to advise a defendant that consecutive

sentences may be imposed). On the authority of Koob and the other cases from this

district, we conclude that the trial court did not violate Crim.R. 11(C)(2)(a) by failing to

mention the possibility of consecutive sentences during Anderson’s plea hearing.

{¶ 11} Anderson next contends the trial court violated Crim.R. 11(C)(2)(a) by failing

to advise him that he was eligible for community-control sanctions. But “Crim.R. 11(C)

does not require the trial court to inform a defendant when he or she is eligible for

community control; it only requires that a defendant be informed of his or her ineligibility.”

State v. Russell, 2d Dist. Clark No. 2010-CA-54, 2011-Ohio-1738, ¶ 9; see also State v.

Drzayich, 2016-Ohio-1398, 62 N.E.3d 850, ¶ 22 (6th Dist.) (“[T]he rule makes clear that

the trial court must orally advise a defendant of his or her ineligibility for community

control. There is no converse requirement that the trial court advise the defendant that he

or she is eligible for community control.”); State v. Anderson, 7th Dist. Mahoning No. 11

MA 125, 2012-Ohio-2759, ¶ 17 (“Crim.R. 11(C) only requires an advisement if the

offender is not eligible for probation or a community control sanction.”). Accordingly, the

first assignment of error is overruled.

{¶ 12} Anderson’s second assignment of error states:

Defendant was not properly afforded jail time credit in accordance

with R.C. 2929.19(B)(2)(g)(i).

{¶ 13} Anderson notes that the trial court’s judgment entry of conviction awarded

him 464 days of jail-time credit from May 25, 2022, to September 1, 2023, with additional

jail-time credit from September 1, 2023, until his conveyance to prison. Anderson argues -6-

that there were 465 days from May 25, 2022 to September 1, 2023. He also asserts that

his incarceration began on May 20, 2022, not May 25, 2022. For its part, the State

concedes error, acknowledging that Anderson was arrested on May 20, 2022, and it urges

us to remand the case for recalculation of jail-time credit.

{¶ 14} Upon review, we note that there were 464 days “from May 25, 2022 to

September 1, 2023,” which is what the trial court’s judgment entry correctly stated. With

regard to Anderson’s arrest date, however, the record reflects that he was arrested on

May 20, 2022, not May 25, 2022. As a result, we sustain Anderson’s assignment of error

seeking recalculation of jail-time credit.

{¶ 15} Anderson’s third assignment of error states:

The Trial Court did not consider the required factors involving

Defendant’s youth under R.C. 2929.19(B)(1)(b), nor indicate it had

considered the factors contained in R.C. 2929.11 and R.C. 2929.12.

{¶ 16} Anderson first claims the trial court gave no indication that it had considered

the statutory purposes of felony sentencing in R.C. 2929.11 or the “seriousness” and

“recidivism” factors in R.C. 2929.12. Therefore, he contends his sentence was contrary

to law.

{¶ 17} Although the trial court did not mention the foregoing factors during

Anderson’s sentencing hearing, its judgment entry of conviction referenced its

consideration of them. The trial court had no obligation to do more. State v. Segovia, 2d

Dist. Clark No. 2023-CA-35, 2024-Ohio-1392, ¶ 49; State v. Thompson, 2d Dist. Clark

No. 2022-CA-3, 2022-Ohio-2316, ¶ 15. Indeed, even “ ‘[o]n a silent record, a trial court is -7-

presumed to have considered the statutory purposes and principles of sentencing, and

the statutory seriousness and recidivism factors.’ ” State v. Bryant, 2d Dist. Miami No.

2023-CA-17, 2024-Ohio-1192, ¶ 33, quoting State v. Goldblum, 2d Dist. Montgomery No.

25851, 2014-Ohio-5068, ¶ 50. The trial court’s failure explicitly to address the factors or

make findings on them did not render Anderson’s sentence contrary to law.

{¶ 18} In a final argument, Anderson contends the trial court failed to consider

statutory factors in R.C. 2929.19(B)(1)(b) concerning his youth. Anderson argues that his

sentence is contrary to law because the record “affirmatively shows” that the trial court

did not consider these factors. In support, he cites the trial court’s failure to mention the

statutory youth factors during the sentencing hearing or in its judgment entry of conviction.

Although defense counsel made arguments about his youth and its relevance to

sentencing, Anderson claims the record is devoid of evidence that the trial court

considered counsel’s remarks.

{¶ 19} In 2021, the General Assembly enacted R.C. 2929.19(B)(1)(b), which

obligates a trial court to consider certain factors when an offender was under age 18 at

the time of his offense. Specifically, the statute obligates a trial court at sentencing to

“consider youth and its characteristics as mitigating factors, including” the following:

(i) The chronological age of the offender at the time of the offense and that

age’s hallmark features, including intellectual capacity, immaturity,

impetuosity, and a failure to appreciate risks and consequences;

(ii) The family and home environment of the offender at the time of the

offense, the offender’s inability to control the offender's surroundings, a -8-

history of trauma regarding the offender, and the offender's school and

special education history;

(iii) The circumstances of the offense, including the extent of the offender’s

participation in the conduct and the way familial and peer pressures may

have impacted the offender’s conduct;

(iv) Whether the offender might have been charged and convicted of a

lesser offense if not for the incompetencies associated with youth, such as

the offender’s inability to deal with police officers and prosecutors during the

offender’s interrogation or possible plea agreement or the offender’s

inability to assist the offender’s own attorney;

(v) Examples of the offender’s rehabilitation, including any subsequent

growth or increase in maturity during confinement.

R.C. 2929.19(B)(1)(b)(i)-(v).

{¶ 20} This court twice recently has addressed appellate review of a trial court’s

obligation to consider the statutory youth factors quoted above. See Bryant at ¶ 36-40;

State v. Wallace, 2d Dist. Clark No. 2023-CA-53, 2024-Ohio-1393, ¶ 11-12. As in the

present case, the trial court in Bryant did not mention R.C. 2929.19(B)(1)(b) during the

sentencing hearing or in its judgment entry. Bryant at ¶ 35. Adopting the analysis applied

by other Ohio appellate districts, we concluded “that our review is limited to whether the

record affirmatively demonstrates that the court failed to consider the R.C.

2929.19(B)(1)(b) factors.” Id. at ¶ 37. Although the trial court had not mentioned any of

the statutory youth factors, we found evidence in the record pertaining to several of them -9-

(including a presentence-investigation report and a forensic-evaluation report) that the

trial court had considered. Id. at ¶ 38-39. “Based on the statements made at the

sentencing hearing and other evidence in the record,” we did not find that the record

affirmatively demonstrated the trial court’s failure to consider the R.C. 2929.19(B)(1)(b)

factors. Id. at ¶ 40.

{¶ 21} The second case, Wallace, involved another of Anderson’s co-defendants.

The 17-year-old defendant in Wallace was bound over from juvenile court and tried as an

adult just like Anderson. After entering a negotiated guilty plea to three counts of felonious

assault, the defendant in Wallace received an aggregate sentence of 22 to 26 years in

prison, which was the same sentence imposed on Anderson by the same judge. On

appeal, the defendant referenced the R.C. 2929.19(B)(1)(b) factors and argued that the

trial court had not adequately considered his youth.

{¶ 22} Relying on our earlier opinion in Bryant, we rejected the defendant’s

argument, reasoning:

Here, the only mention of Wallace’s youth at the disposition (by any

party) was a brief recitation of his juvenile record by the court. The rest of

the record, though, contained indications of Wallace’s youth. The court

noted that it had considered the PSI, which contained information about

Wallace’s social, family, education, and health history. Among other things,

the report recounted the death of his mother, drug use, the fact that he

dropped out of high school after the ninth grade, and that he had two young

children. The trial court also had two forensic evaluations which gave -10-

detailed analyses of Wallace’s mental health, intellectual capacity, and

maturity, as well as the juvenile court’s findings on amenability. Based on

documents in possession of the trial court, it cannot be said that the record

affirmatively demonstrates that the court failed to consider the R.C.

2929.19(B)(1)(b) factors.

Id. at ¶ 12.

{¶ 23} In the present case, Anderson stresses the trial court’s failure to mention

the statutory youth factors at sentencing or in its judgment entry. For its part, the State

concedes “error” insofar as the trial court did not specifically reference Anderson’s youth

as a sentencing factor, while arguing that his sentence nevertheless was appropriate. In

Bryant and Wallace, however, the trial courts also did not mention R.C. 2929.19(B)(1)(b)

or reference the statutory youth factors. Despite this omission, our analysis focused on

whether the record contained evidence pertaining to them and whether the trial court had

considered that evidence. In both cases, we found that the trial court had considered such

evidence, which existed in the form of PSI reports and forensic evaluations. Therefore,

the record did not affirmatively demonstrate the trial court’s failure to consider the

statutory youth factors.

{¶ 24} We reach the same conclusion in Anderson’s case. At sentencing, defense

counsel stressed Anderson’s young age. Defense counsel also referenced Anderson’s

“difficult time as a child” and lack of guidance as a teenager. The trial court’s judgment

entry reflected its consideration of these statements by defense counsel. As in Wallace,

the trial court at sentencing also made a brief reference to Anderson’s juvenile record, -11-

which included prior adjudications for attempted breaking and entering, theft, and

burglary.

{¶ 25} The record before the trial court contained significant additional information

pertaining to Anderson’s youth. In its judgment entry, the trial court stated that it had

considered a PSI report, which indicated that Anderson had resided with a foster family

and, by his own admission, “had a messed up life.” The PSI report stated that he had quit

school in the ninth grade, that he had no income, and that he began drinking alcohol at

age 15. The report also noted his continuing use of marijuana and “pills.”

{¶ 26} In addition to the PSI report, the trial court indicated that it had reviewed the

“record,” which included two comprehensive forensic evaluations addressing Anderson’s

amenability to rehabilitation in the juvenile system. These written evaluations provided

the trial court with a thorough analysis of his mental health, intellectual capacity, and

maturity. Both lengthy reports examined virtually every aspect of Anderson’s life, including

the circumstances of the offense, his childhood history, educational history, mental-health

history, mental status, legal history, relationship history, personality traits, and intellectual

capacity.

{¶ 27} As we did in Bryant and Wallace, we conclude that the record does not

affirmatively demonstrate the court’s failure to consider the R.C. 2929.19(B)(1)(b) factors.

Accordingly, Anderson’s third assignment of error is overruled.

III. Conclusion

{¶ 28} Having sustained the second assignment of error, we reverse the trial

court’s judgment with regard to jail-time credit and remand the case for recalculation of -12-

that credit. In all other respects, the trial court’s judgment is affirmed.

WELBAUM, J. and HUFFMAN, J., concur.