[Cite as State v. Barnes, 2017-Ohio-8443.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2017-T-0040 - vs - :
JONATHAN M. BARNES, JR., :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR 00486.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, Ashleigh Musick, Assistant Prosecutor, and Charles L. Morrow, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Jonathan M. Barnes, appeals his sentence for
Trafficking in Heroin in the Trumbull County Court of Common Pleas. The issue to be
determined in this case is whether a trial court violates a defendant’s right to due
process by commenting on the drug epidemic and drug deaths when sentencing him for
Trafficking. For the following reasons, the judgment of the lower court is affirmed. {¶2} On September 27, 2016, Barnes was indicted by the Trumbull County
Grand Jury on one count of Trafficking in Heroin, a felony of the first degree, in violation
of R.C. 2925.03(A)(2) and (C)(6)(f), and one count of Possession of Heroin, a felony of
the first degree, in violation of R.C. 2925.11(A) and (C)(6)(e). Both counts had a firearm
specification pursuant to R.C. 2941.141, and a forfeiture specification, as provided for in
R.C. 2941.1417 and R.C. 2981.02 and .04.
{¶3} A Finding on Guilty Plea to the Amended-Indictment was filed on March
10, 2017. Barnes pled guilty to one count of Trafficking in Heroin, as charged in the
Indictment, as well as the accompanying specifications. The State agreed to dismiss
the remaining count. The court accepted the plea and entered a finding of guilt.
{¶4} A sentencing hearing was held on April 3, 2017. Barnes apologized and
accepted responsibility for his actions. The State recommended a five-year prison
sentence. The court noted Barnes had no prior felony convictions and stated that “the
reason you’re not getting the top of the line prison time is because your record is
relatively minimal.”
{¶5} The court asked Barnes if he knew what the “number one killer of people
is today,” to which Barnes responded “heroin.” The court replied: “Yes. What were you
doing?,” to which Barnes responded, “selling heroin.” The court stated:
The epidemic * * * [has] been around for a long time and every day
I look in the obituary and I see people that are too young to die, and
it says they died suddenly at their home, which means they OD’d. I
see more of those than I do shootings, die of old age. You
understand what you did?
2 {¶6} The court sentenced Barnes to a term of five years in prison for Trafficking
in Heroin and one year for the gun specification, for a total term of six years. An Entry
on Sentence was filed on April 12, 2017, memorializing the sentence and stating that
the court had considered the purposes and principles of felony sentencing in R.C.
2929.11 and the factors in R.C. 2929.12, as well as the record, oral statements, and
presentence investigation report.
{¶7} Barnes timely appeals and raises the following assignment of error:
{¶8} “Appellant, Jonathan M. Barnes, assigns as error that the sentencing
judge erred when he made statements during the sentencing hearing that rendered the
sentencing hearing fundamentally unfair.”
{¶9} The standard of review for felony sentences is provided by R.C.
2953.08(G)(2). “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). “Applying the plain language of R.C.
2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is otherwise
contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1.
{¶10} Barnes does not argue that the court failed to sentence him to a term that
was within the permissible range or that it failed to consider the R.C. 2929.11 and .12
factors. There is no question that the court stated it considered the factors and
sentenced him within the permissible range, which, for the present case of Trafficking in
3 Heroin, is a term of three to eleven years. R.C. 2925.03(C)(6)(f); R.C. 2929.14(A)(1).
Barnes received a prison term toward the lower end of that range, with the court
recognizing his limited criminal record.
{¶11} Barnes emphasizes that the judge’s comments about the heroin epidemic
and deaths demonstrated that it improperly “enhanced” his sentence, resulting in an
unfair proceeding and violating his due process rights.
{¶12} “The United States Supreme Court has recognized that even a sentence
within the limits of a state’s sentencing laws may violate due process if the sentencing
proceedings are fundamentally unfair.” State v. Arnett, 88 Ohio St.3d 208, 217, 724
N.E.2d 793 (2000), citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92
L.Ed. 1690 (1948); also Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51
L.Ed.2d 393 (1977) (“[t]he defendant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence even if he may have no right to
object to a particular result of the sentencing process”).
{¶13} As the Ohio Supreme Court has explained, a sentence is properly vacated
as violative of due process when a “sentencing judge’s comments reveal that the court
imposed or enhanced the offender’s sentence because of improper considerations.”
Arnett at 218. These include the offender’s race, the consideration of false or unreliable
information, or parochialism. Id.
{¶14} Barnes essentially contends that he was given a greater sentence
because of the risk drugs pose to users, although he was not alleged to have caused
harm to any particular individual, emphasizing that many factors apart from drug dealing
have led to the epidemic. However, he cites to no case law to support his position that
4 a judge’s comments about the danger of drug use amount to a violation of due process
or an enhancement of his sentence due to improper considerations.
{¶15} The judge’s brief comments did not reach any conclusion as to the cause
of the whole epidemic, nor did he state that Barnes was responsible for causing the
epidemic or any deaths. The trial court’s comments amount to a recognition of the
dangers presented to society by drug trafficking, which is a relevant concern given
Barnes’ conviction. A judge is not prohibited from recognizing potential consequences
that may result from a defendant’s actions. Pursuant to R.C. 2929.11, the trial court
must consider protecting the public when sentencing an offender and it is not
unreasonable to consider the harm caused to the community by selling drugs in
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[Cite as State v. Barnes, 2017-Ohio-8443.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2017-T-0040 - vs - :
JONATHAN M. BARNES, JR., :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR 00486.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, Ashleigh Musick, Assistant Prosecutor, and Charles L. Morrow, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Jonathan M. Barnes, appeals his sentence for
Trafficking in Heroin in the Trumbull County Court of Common Pleas. The issue to be
determined in this case is whether a trial court violates a defendant’s right to due
process by commenting on the drug epidemic and drug deaths when sentencing him for
Trafficking. For the following reasons, the judgment of the lower court is affirmed. {¶2} On September 27, 2016, Barnes was indicted by the Trumbull County
Grand Jury on one count of Trafficking in Heroin, a felony of the first degree, in violation
of R.C. 2925.03(A)(2) and (C)(6)(f), and one count of Possession of Heroin, a felony of
the first degree, in violation of R.C. 2925.11(A) and (C)(6)(e). Both counts had a firearm
specification pursuant to R.C. 2941.141, and a forfeiture specification, as provided for in
R.C. 2941.1417 and R.C. 2981.02 and .04.
{¶3} A Finding on Guilty Plea to the Amended-Indictment was filed on March
10, 2017. Barnes pled guilty to one count of Trafficking in Heroin, as charged in the
Indictment, as well as the accompanying specifications. The State agreed to dismiss
the remaining count. The court accepted the plea and entered a finding of guilt.
{¶4} A sentencing hearing was held on April 3, 2017. Barnes apologized and
accepted responsibility for his actions. The State recommended a five-year prison
sentence. The court noted Barnes had no prior felony convictions and stated that “the
reason you’re not getting the top of the line prison time is because your record is
relatively minimal.”
{¶5} The court asked Barnes if he knew what the “number one killer of people
is today,” to which Barnes responded “heroin.” The court replied: “Yes. What were you
doing?,” to which Barnes responded, “selling heroin.” The court stated:
The epidemic * * * [has] been around for a long time and every day
I look in the obituary and I see people that are too young to die, and
it says they died suddenly at their home, which means they OD’d. I
see more of those than I do shootings, die of old age. You
understand what you did?
2 {¶6} The court sentenced Barnes to a term of five years in prison for Trafficking
in Heroin and one year for the gun specification, for a total term of six years. An Entry
on Sentence was filed on April 12, 2017, memorializing the sentence and stating that
the court had considered the purposes and principles of felony sentencing in R.C.
2929.11 and the factors in R.C. 2929.12, as well as the record, oral statements, and
presentence investigation report.
{¶7} Barnes timely appeals and raises the following assignment of error:
{¶8} “Appellant, Jonathan M. Barnes, assigns as error that the sentencing
judge erred when he made statements during the sentencing hearing that rendered the
sentencing hearing fundamentally unfair.”
{¶9} The standard of review for felony sentences is provided by R.C.
2953.08(G)(2). “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). “Applying the plain language of R.C.
2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is otherwise
contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1.
{¶10} Barnes does not argue that the court failed to sentence him to a term that
was within the permissible range or that it failed to consider the R.C. 2929.11 and .12
factors. There is no question that the court stated it considered the factors and
sentenced him within the permissible range, which, for the present case of Trafficking in
3 Heroin, is a term of three to eleven years. R.C. 2925.03(C)(6)(f); R.C. 2929.14(A)(1).
Barnes received a prison term toward the lower end of that range, with the court
recognizing his limited criminal record.
{¶11} Barnes emphasizes that the judge’s comments about the heroin epidemic
and deaths demonstrated that it improperly “enhanced” his sentence, resulting in an
unfair proceeding and violating his due process rights.
{¶12} “The United States Supreme Court has recognized that even a sentence
within the limits of a state’s sentencing laws may violate due process if the sentencing
proceedings are fundamentally unfair.” State v. Arnett, 88 Ohio St.3d 208, 217, 724
N.E.2d 793 (2000), citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92
L.Ed. 1690 (1948); also Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51
L.Ed.2d 393 (1977) (“[t]he defendant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence even if he may have no right to
object to a particular result of the sentencing process”).
{¶13} As the Ohio Supreme Court has explained, a sentence is properly vacated
as violative of due process when a “sentencing judge’s comments reveal that the court
imposed or enhanced the offender’s sentence because of improper considerations.”
Arnett at 218. These include the offender’s race, the consideration of false or unreliable
information, or parochialism. Id.
{¶14} Barnes essentially contends that he was given a greater sentence
because of the risk drugs pose to users, although he was not alleged to have caused
harm to any particular individual, emphasizing that many factors apart from drug dealing
have led to the epidemic. However, he cites to no case law to support his position that
4 a judge’s comments about the danger of drug use amount to a violation of due process
or an enhancement of his sentence due to improper considerations.
{¶15} The judge’s brief comments did not reach any conclusion as to the cause
of the whole epidemic, nor did he state that Barnes was responsible for causing the
epidemic or any deaths. The trial court’s comments amount to a recognition of the
dangers presented to society by drug trafficking, which is a relevant concern given
Barnes’ conviction. A judge is not prohibited from recognizing potential consequences
that may result from a defendant’s actions. Pursuant to R.C. 2929.11, the trial court
must consider protecting the public when sentencing an offender and it is not
unreasonable to consider the harm caused to the community by selling drugs in
determining the seriousness of the crime and the appropriate punishment. State v.
Dari, 8th Dist. Cuyahoga No. 99367, 2013-Ohio-4189, ¶ 8, 18 (where a defendant was
convicted of selling bath salts, the trial court’s statements about the drug epidemic and
that “this stuff kills” were not improper and “simply took into consideration the serious[]
nature of the offenses to which [the defendant] pleaded guilty”). See also State v.
McColor, 7th Dist. Mahoning No. 11 MA 64, 2013-Ohio-1279, ¶ 10-11 (where a
defendant was convicted of crimes related to his failure to confine a pit bull, the court
did not violate the defendant’s due process in referencing the risk of death to children
posed by improperly restrained dogs).
{¶16} To the extent that Barnes argues these comments were based only on the
judge’s personal views, we emphasize that “[a] judge’s sentencing requires the exercise
of personal judgment; the court is not required to divorce itself from all personal
experiences and make his decision in a vacuum.” State v. Cook, 65 Ohio St.3d 516,
5 529, 605 N.E.2d 70 (1992). The fact that the judge’s comments were based in part on
observations he had made regarding the cause of deaths in the community does not
mean that his comments were improper or deprived Barnes of due process.
{¶17} Given the foregoing, and in the absence of citation to any case law to the
contrary, we do not find that the trial court violated Barnes’ due process rights by
considering the impact of drug dealing in the community.
{¶18} The sole assignment of error is without merit.
{¶19} For the foregoing reasons, Barnes’ sentence for Trafficking in Heroin is
affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, P.J.,
THOMAS R. WRIGHT, J.,
concur.