State v. Brandon

2016 Ohio 227

• Court: Ohio Court of Appeals
• Decided: January 22, 2016
• Docket: 2014-CA-143, 2014-CA-144, 2014-CA-145
• Status: Published

Opinion

[Cite as State v. Brandon, 2016-Ohio-227.]

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

STATE OF OHIO : Appellate Case Nos. 2014-CA-143 : Appellate Case Nos. 2014-CA-144 Plaintiff-Appellee : Appellate Case Nos. 2014-CA-145 : v. : Trial Court Case Nos. 14-CR-653 : Trial Court Case Nos. 14-CR-519 DAWAUNE BRANDON : Trial Court Case Nos. 14-CR-596 : Defendant-Appellant : (Criminal Appeals from : Common Pleas Court) : ...........

OPINION

Rendered on the 22nd day of January, 2016

...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

CHARLES W. MORRISON, Atty. Reg. No. 0084368, Post Office Box 41450, Dayton, Ohio 45441 Attorney for Defendant-Appellant

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

HALL, J.

{¶ 1} Dawaune Brandon appeals his consecutive sentences for drug-possession -2-

offenses. Brandon argues that the record does not support the trial court’s findings, under

R.C. 2929.14(C)(4), that consecutive service is necessary to protect the public from future

crime by him and to punish him and that consecutive sentences are not disproportionate

to the seriousness of his conduct and to the danger that he poses to the public. The trial

court’s findings in this case are not clearly and convincingly unsupported by the record,

so we affirm.

I. Background

{¶ 2} On August 11, 2014, Brandon was indicted on four felonies in Case No.

2014-CR-519: trafficking in cocaine, a second-degree felony, with a specification that the

offense was committed within the vicinity of a school; trafficking in heroin, a third-degree

felony, also with a specification that the offense was committed within the vicinity of a

school; possession of cocaine, a third-degree felony; and possession of heroin, a second-

degree felony. There was also a specification requesting that he forfeit to the state $454

under R.C. Chapter 2981. While Brandon was out on bond in that case, he committed

five more felonies for which he was indicted on September 8 in Case No. 2014-CR-596:

trafficking in cocaine in the vicinity of a school, a second-degree felony; possession of

cocaine, a third-degree felony; trafficking in heroin in the vicinity of a school, a first-degree

felony; possession of heroin, a second-degree felony; and receiving stolen property (a

motor vehicle), a fourth-degree felony. The following month, October, Brandon was

indicted on two felonies in Case No. 2014-CR-653 that he had committed before the

felonies in the other two cases: carrying a concealed weapon, a fourth-degree felony, and

possession of cocaine, a fifth-degree felony.

{¶ 3} Brandon entered into a plea agreement under which he pleaded guilty in -3-

Case No. 2014-CR-519 to possession of heroin and forfeited $454, pleaded guilty to

possession of heroin in Case No. 2014-CR-596, and pleaded guilty to possession of

cocaine in Case No. 2014-CR-653. All of the other charges in the cases were dismissed.

The trial court sentenced Brandon to 4 years, 2 years, and 12 months in prison,

respectively. The court found that “consecutive sentences are necessary to protect the

public from future crime and to punish the Defendant and that consecutive sentence [sic]

are not disproportionate to the seriousness of the Defendant’s conduct or to the danger

that he poses to the public,” and that Brandon “committed one or more offenses while

awaiting trial or sentencing on a previous offense.” (Sentencing Tr. 9). Consequently the

court ordered him to serve the sentences consecutively, for a total of 7 years in prison.

{¶ 4} Brandon appealed.

II. Analysis

{¶ 5} The sole assignment of error alleges that the trial court erred by requiring

Brandon to serve the sentences consecutively. Section 2929.14(C)(4) of the Revised

Code permits a court to require the consecutive service of multiple prison terms “if the

court finds that the consecutive service is necessary to protect the public from future crime

or to punish the offender and that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public.”

The court must also find one of three facts listed in the section, one of which is that the

offender committed one of the offenses while awaiting trial. R.C. 2929.14(C)(4)(a). The

trial court here made all three required findings.

{¶ 6} Brandon admits that he committed one of the offenses while awaiting trial,

but he challenges the other two required findings. He contends that the record does not -4-

support finding that consecutive sentences are necessary to protect the public from future

crime or that consecutive sentences are not disproportionate to the seriousness of the

offenses.

{¶ 7} “R.C. 2953.08(G)(2) is the appellate standard of review for all felony

sentences, including consecutive sentences.” State v. Bittner, 2d Dist. Clark No. 2013-

CA-116, 2014-Ohio-3433, ¶ 8. When a defendant challenges a trial court’s consecutive-

sentence findings, “R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record,

including the findings underlying the sentence’ and to modify or vacate the sentence ‘if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing court’s

findings under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ ” State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting R.C.

2953.08(G)(2)(a).

{¶ 8} The Ohio Supreme Court has said that “a trial court is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry, but it has no obligation to state reasons to support its

findings.” Id. at the syllabus. Neither R.C. 2929.11 nor 2929.12 requires trial courts to give

reasons for their sentencing decisions or to make specific findings. R.C. 2929.11 requires

only that courts be guided by certain principles (like the purposes of felony sentencing)

and consider certain matters (like deterrence and rehabilitation). And R.C. 2929.12

requires courts only to consider factors relating to the seriousness of an offender’s

conduct and the likelihood of recidivism. “Trial courts, therefore, are required to consider

the factors set forth in R.C. 2929.12, but they need not articulate their considerations

explicitly on the record.” State v. Mabra, 2d Dist. Clark No. 2014-CA-147, 2015-Ohio- -5-

5493, ¶ 56. Indeed, this Court and the Ohio Supreme Court have held that “even a silent

record raises the presumption that the trial court considered the factors contained in R.C.

2929.12.” Id., citing State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988),

paragraph three of the syllabus, and State v. Carlton, 2d Dist. Montgomery No. 26086,

2014-Ohio-3835, ¶ 18 (observing that “we have held on more than one occasion that a

trial court’s consideration of the statutory sentencing factors may be presumed from a

silent record”).

{¶ 9} In making sentencing decisions, “a trial court may rely on ‘a broad range of

information.’ ” State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43,

quoting State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d

Dist.). The court may consider, among other things, “prior arrests, facts supporting a

charge that resulted in an acquittal, and facts related to a charge that was dismissed

under a plea agreement.” Id. A court may also consider “allegations of uncharged criminal

conduct found in a PSI [presentence investigation] report.” Bowser at ¶ 15.

{¶ 10} At the sentencing hearing here, the trial court said that it had reviewed the

PSI report1 and considered R.C. 2929.11 and 2929.12. As to the more-serious factors in

R.C. 2929.12(B), the court found that Brandon “was selling drugs which, by the nature of

the offense, is part of an organized criminal activity,” R.C. 2929.12(B). (Sentencing Tr. 6).

None of the less-serious factors in R.C. 2929.12(C) applied, found the court. As to the

recidivism factors in R.C. 2929.12(D), the court found that Brandon had committed the

Case No. 14-CR-519 offense in June 2014 for which he was indicted on August 11. A

1Although the PSI report was not in the record, we sua sponte ordered that the record be supplemented with the report and we have reviewed it. -6-

week after his indictment, on August 19, while he was out on bond, Brandon committed

the Case No. 14-CR-596 offense. And the offenses in both of those cases were committed

after he had been arrested and charged for the Case No. 14-CR-653 offenses, though

that case had been dismissed and was not pending at the time. The trial court also

considered Brandon’s juvenile record. “His history of criminal activity,” said the court, “if it

were to include his juvenile record, would also demonstrate consecutive sentences were

necessary to protect the public from future crimes by the defendant. As just before he

turned 18, he was found delinquent for offenses which would have been a felony [sic] if

he were convicted as an adult; but even if the juvenile record were not considered, the

fact that he committed another felony offense while awaiting trial or disposition on a prior

offense would indicate consecutive sentences are necessary.” (Id. at 9). The court found

that Brandon had been adjudicated delinquent and that he had not responded favorably

to the sanctions imposed by the juvenile court. The trial court noted that the juvenile court

had placed Brandon on indefinite probation in 2013, which appeared to be in effect still.

The next year, in April 2014, said the court, Brandon committed his first offense as an

adult. The last recidivism factor that the court noted was that Brandon did not show any

genuine remorse for his offenses. As to the not-likely-to-commit-future-crimes factors in

R.C. 2929.12(E), the court found that Brandon had no adult criminal history. The court

also noted that he “scored low on the Ohio Risk Assessment Survey.” (Id. at 8). But the

court questioned the utility of the survey, saying that “[i]f the purpose of that survey is to

decide whether or not there is or what risk of offending or committing further crime might

be, I do have to question the results of the factors they use in that survey.” (Id.).

{¶ 11} Brandon does not challenge any of these factual findings. His argument is -7-

that these facts are not enough to show that consecutive sentences are necessary to

protect the public from future crime and are not disproportionate to the seriousness of his

offenses. Brandon says that the results of the risk-assessment survey unequivocally show

that he has a low risk of reoffending. Other than in his juvenile record, says Brandon,

there are no objective facts on which to conclude that the risk to the community posed by

a 19-year-old, first-time, non-violent felony offender requires consecutive sentences.

{¶ 12} The standard used to review consecutive sentences is extremely

deferential:

It is important to understand that the “clear and convincing” standard

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.

2953.08(G)(2) makes it clear that “[t]he appellate court’s standard for review

is not whether the sentencing court abused its discretion.” As a practical

consideration, this means that appellate courts are prohibited from

substituting their judgment for that of the trial judge.

It is also important to understand that the clear and convincing

standard used by R.C. 2953.08(G)(2) is written in the negative. It does not

say that the trial judge must have clear and convincing evidence to support

its findings. Instead, it is the court of appeals that must clearly and

convincingly find that the record does not support the court’s findings. In

other words, the restriction is on the appellate court, not the trial judge. This

is an extremely deferential standard of review.

State v. Salyer, 2d Dist. Champaign No. 2013-CA-60, 2015-Ohio-2431, ¶ 21, quoting

State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20-21 (8th Dist.). -8-

{¶ 13} While Brandon admits to his juvenile record, he cites this Court’s decision

in State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160 (Hall, J., dissenting),

in which a majority of the panel found that an extensive juvenile history, along with a few

adult convictions, did not support the trial court’s findings that consecutive sentences

were necessary to protect the public from future crime and were not disproportionate to

the seriousness of the offenses. Brandon also cites the Adams majority for the idea that

his sentence may demean the seriousness of the impact caused by other felony

offenders.

{¶ 14} The Adams defendant’s juvenile record began when he was 15 years old

with convictions for complicity to unauthorized use of property and breaking and entering.

When he was 16, the defendant was convicted of disorderly conduct. And when the

defendant was 17, he was convicted of failure to control, of misdemeanor drug

possession, and in two separate speeding cases. Several other juvenile cases had been

filed and dismissed. As an adult, the defendant had been convicted of unauthorized use

of property and criminal damaging. The defendant had been convicted in Adams on three

counts of burglary and one count of heroin possession in four separate cases. The trial

court had ordered him to serve his sentences in the cases consecutively, for a total of 20

years in prison, two years shy of the statutory maximum.

{¶ 15} On appeal to this Court, the majority found that the record did not support

the trial court’s findings that consecutive sentences totaling 20 years in prison were

necessary to protect the public or punish the defendant and were not disproportionate to

the seriousness of his conduct and to the danger he posed to the public. The majority -9-

noted that all of his felonies (convicted and dismissed) occurred within a period of five

months, that none of the offenses was violent, and that all of the burglaries involved theft

offenses. The record showed that the defendant had a history of drug use that had not

been addressed. And the majority questioned some of the prosecutor’s statements about

drugs and the defendant. The majority found that the defendant’s offenses did not reflect

such seriousness and danger to the public that 20 years in prison was necessary. The

sentence, said the majority, “may demean the perceived seriousness of other crimes and

the harm to other victims; for example, the sentence for murder is 15 to life and rape has

a maximum sentence of 11 years.” Adams at ¶ 29.

{¶ 16} The facts in Adams distinguish it from the present case. The record here

does not show that Brandon has an unaddressed drug problem. Rather, according to the

PSI report, he sold drugs because he wasn’t working and needed money. Also,

Brandon’s total sentence is 7 years—a far cry from the Adams defendant’s 20 years. We

see no need to be concerned that Brandon’s sentence will demean the perceived

seriousness of other crimes and the harm to other victims.

{¶ 17} We cannot clearly and convincingly find that the record in this case does

not support the sentencing court’s consecutive-sentence findings.

{¶ 18} The sole assignment of error is overruled.

III. Conclusion

{¶ 19} Having overruled the sole assignment of error, the trial court’s judgment is

affirmed.

............. -10-

FAIN, J., and WELBAUM, J., concur.

Copies mailed to:

Ryan A. Saunders Charles W. Morrison Hon. Richard J. O’Neill