State v. Arnold

2024 Ohio 4503

• Court: Ohio Court of Appeals
• Decided: September 13, 2024
• Docket: 2024-CA-1
• Status: Published

Opinion

[Cite as State v. Arnold, 2024-Ohio-4503.]

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

STATE OF OHIO : : Appellee : C.A. No. 2024-CA-1 : v. : Trial Court Case No. 23-CR-0477 : ZAEVION ARNOLD : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on September 13, 2024

LUCAS W. WILDER, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

.............

TUCKER, J.

{¶ 1} Defendant-appellant Zaevion Arnold appeals from his convictions following

his plea of guilty to improper discharge of a firearm at or into a habitation, tampering with

evidence, and receiving stolen property. He challenges the sentence imposed by the

trial court. For the reasons set forth below, we affirm. -2-

I. Factual and Procedural History

{¶ 2} On May 30, 2022, officers were dispatched to the residence of A.I., who

stated that someone had fired shots toward her home. Security camera video showed

that two individuals had exited a black SUV and walked toward her home. Shots can

then be heard on the video, and the two men ran back to the SUV and left the scene.

The video also showed the SUV driving past A.I.’s home earlier that same day. In the

morning hours of May 31, 2022, the same SUV drove by the house again and more shots

were fired.

{¶ 3} Following an investigation, Arnold was identified as one of the shooters. He

was charged as a juvenile but was subsequently bound over to the general division of the

common pleas court to be tried as an adult. In July 2023, Arnold was indicted on one

count each of improper discharge of a firearm at or into a habitation, discharge of a firearm

on or near prohibited premises, improper handling of a firearm in a motor vehicle,

tampering with evidence, having weapons under disability, and receiving stolen property.

The counts of improper discharge of a firearm into a habitation and discharge of a firearm

on prohibited premises carried attendant firearm specifications.

{¶ 4} The matter proceeded to a jury trial, but after the trial had commenced,

Arnold entered into a plea agreement with the State. Arnold pled guilty to improper

discharge of a firearm at or into a habitation, tampering with evidence, and receiving

stolen property; in exchange, the State dismissed the remaining counts and the firearm

specifications. -3-

{¶ 5} At sentencing, the trial court imposed an indefinite sentence of 7 to 10½

years for improper discharge of a firearm, a definite sentence of three years for tampering

with evidence, and a definite sentence of one year for receiving stolen property. The trial

court ordered the sentences to be served consecutively, for an aggregate prison term of

11 to 14½ years.

{¶ 6} Arnold appeals.

II. Sentence Proportionality

{¶ 7} Arnold’s sole assignment of error states:

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT

TO SIX MORE YEARS IN PRISON THAN HIS CO-DEFENDANT IN

VIOLATION OF R.C. 2929.11(B).

{¶ 8} Arnold claims his sentence should be vacated because it is “grossly

disproportionate” to that imposed upon the codefendant involved in the shooting.

{¶ 9} This exact issue was recently addressed in State v. Williamson, 2024-Ohio-

1599 (10th Dist.), wherein the court stated:

R.C. 2953.08(G)(2) generally governs our review of felony

sentences. See, e.g., State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,

¶ 26-42. Under that statute, we are permitted to modify or vacate a sentence

only if we clearly and convincingly find either: (1) the record does not

support the sentencing court's findings under certain statutes, none of which

are implicated here; or (2) the sentence is otherwise contrary to law. Id. at -4-

¶ 30-39; R.C. 2953.08(G)(2).

Relevant here, a sentence is contrary to law if the trial court failed to

consider the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. See,

e.g., State v. Dodson, 10th Dist. No. 20AP-297, 2021-Ohio-2415, ¶ 11,

quoting State v. Haddad, 10th Dist. No. 16AP-459, 2017-Ohio-1290, ¶ 19.

However, “[n]othing in R.C. 2953.08(G)(2) 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.” Jones at ¶ 42.

Central to [the defendant’s] assignment of error is his general

dissatisfaction with receiving a longer prison sentence than his

codefendant. Specifically, he takes issue with the trial court's application of

R.C. 2929.11(B), which states:

A sentence imposed for a felony shall be reasonably calculated

to achieve the three overriding purposes of felony sentencing set forth

in [R.C. 2929.11(A)], commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact upon the victim,

and consistent with sentences imposed for similar crimes committed by

similar offenders.

(Emphasis added.)

Initially, we note that although [the defendant] contends that his -5-

sentence is “disproportionate” to his codefendant's, his argument is, in

reality, one of consistency. “For purposes of R.C. 2929.11(B), ‘consistency’

relates to the sentences in the context of sentences given to other

offenders; ‘proportionality’ relates solely to the punishment in the context of

the offender's conduct (does the punishment fit the crime).” State v. Moore,

8th Dist. No. 99788, 2014-Ohio-5135, ¶ 17. See also State v. Murphy, 10th

Dist. No. 12AP-952, 2013-Ohio-5599, ¶ 13.

...

Consistency in sentencing is accomplished by the trial court's

consideration and application of the controlling statutory sentencing factors

and guidelines in the Ohio Revised Code. See, e.g., Murphy at ¶ 13, quoting

State v. McMichael, 10th Dist. No. 11AP-1042, 2012-Ohio-3166, ¶ 42, citing

State v. Hayes, 10th Dist. No. 08AP-233, 2009-Ohio-1100, ¶ 9; State v.

Holloman, 10th Dist. No. 07AP-875, 2008-Ohio-2650, ¶ 19. There is no

requirement that codefendants receive equal sentences. State v. Hall, 179

Ohio App.3d 727, 2008-Ohio-6228, ¶ 10 (10th Dist.), citing State v.

Templeton, 5th Dist. No. 2006-CA-33, 2007-Ohio-1148, ¶ 103. Rather,

“consistency has a goal of similar sentences for similar offenses.” Murphy

at ¶ 14, citing State v. Battle, 10th Dist. No. 06AP-863, 2007-Ohio-1845. “As

a result, consistency includes a range of sentences, taking into

consideration a trial court's discretion to weigh the relevant statutory

factors.” Id. Thus, even where offenses are similar, “distinguishing factors -6-

may justify dissimilar sentences.” Id., citing Battle at ¶ 24. “A consistent

sentence is not derived from a case-by-case comparison; rather, the trial

court's proper application of the statutory sentencing guidelines ensures

consistency.” Hall at ¶ 10, citing State v. Swiderski, 11th Dist. No. 2004-L-

112, 2005-Ohio-6705, ¶ 58.

It is well-established that a trial court has “full discretion to impose a

prison sentence within the applicable sentencing range.” State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, ¶ 100. And “neither R.C. 2929.11 nor

2929.12 requires a trial court to make any specific factual findings on the

record.” Jones, 2020-Ohio-6729 at ¶ 20, citing State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208,

215 (2000). . . . The trial court was not required to make any specific

findings on the record as to its application of the “consistency” requirement

in R.C. 2929.11(B) or any of the sentencing factors.

Williamson at ¶ 16-25.

{¶ 10} In Arnold’s case, in explaining its sentencing, the trial court noted that the

codefendant had entered a guilty plea to one offense while Arnold had entered guilty

pleas to three offenses. The trial court also found that Arnold had shown no remorse

and indeed had denied responsibility for the offenses during his presentence investigation

(PSI) interview. Importantly, the trial court noted that Arnold had been previously

adjudicated delinquent for an offense that would constitute a felony gun offense had he -7-

been an adult.

{¶ 11} The trial court expressly stated that it had considered and applied the R.C.

2929.11 and 2929.12 sentencing factors in determining what sentence was appropriate

to the circumstances surrounding Arnold’s case. Based on our review of the sentencing

hearing transcript and the trial court's judgment entry, we find no basis for concluding the

trial court failed to properly consider the relevant sentencing factors. Further, the

sentences imposed were within the allowable statutory range for each offense. Thus,

we find no merit in Arnold’s argument.

{¶ 12} Because Arnold’s assignment of error arguably challenges the imposition

of consecutive sentences by the trial court, we will also examine whether the trial court

erred in that aspect of sentencing.

{¶ 13} When multiple prison terms are imposed, Ohio law presumes those

sentences will run concurrently rather than consecutively. R.C. 2929.41(A). However,

R.C. 2929.14(C)(4) permits the imposition of consecutive sentences if the trial court

makes the findings prescribed by the statute. Specifically, the trial court must find that:

(1) “the 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 is made:

(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 -8-

was under post-release control for a prior offense.

(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.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 14} “[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, ¶ 38 (2d Dist.).

Under R.C. 2953.08(F), the “record” includes, among other things, any presentence or

other report submitted to the trial court, the trial record in the case, and any oral or written

statements made by or submitted to the trial court at the sentencing hearing. The clear-

and-convincing standard requires “a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, (1954), paragraph three of the

syllabus.

{¶ 15} There is no dispute the trial court made the requisite findings for the

imposition of consecutive sentences. Thus, the question before us is simply whether we -9-

can clearly and convincingly find that the record does not support the trial court’s findings.

{¶ 16} According to the PSI, Arnold was adjudicated delinquent on May 5, 2022,

for offenses which would have constituted felony crimes of carrying a concealed weapon

and receiving stolen property had he been an adult. The charge of receiving stolen

property was reduced to a misdemeanor. In the June 2022 judgment entry in that case,

Arnold was placed on intensive probation. As part of that probation, he was ordered to

have no contact with the man who took part in the offenses at issue in this case. Thus,

at the time he committed the instant offenses, Arnold had a history of committing a felony

gun offense and of violating the terms of his probation. R.C. 2929.14(C)(4)(c).

{¶ 17} Based upon our review, we cannot clearly and convincingly conclude that

the record does not support the trial court’s consecutive sentencing findings.

{¶ 18} Because we find no error in sentencing, the sole assignment of error

asserted by Arnold is overruled.

III. Conclusion

{¶ 19} The judgment of the trial court is affirmed.

WELBAUM, J. and LEWIS, J., concur.