State v. Cannon

2025 Ohio 5729

• Court: Ohio Court of Appeals
• Decided: December 23, 2025
• Docket: C-250313
• Status: Published

Opinion

[Cite as State v. Cannon, 2025-Ohio-5729.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250313 TRIAL NO. B-2403430 Plaintiff-Appellee, :

vs. :

DARIUS CANNON, : JUDGMENT ENTRY

Defendant-Appellant. :

This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed 50% to appellee and 50% to appellant. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 12/23/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as State v. Cannon, 2025-Ohio-5729.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250313 TRIAL NO. B-2403430 Plaintiff-Appellee, : OPINION vs. :

DARIUS CANNON, :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: December 23, 2025

Connie Pillich, Hamilton County Prosecuting Attorney, and Candace Crear, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jeffrey J. Cutcher, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Darius Cannon appeals his sentences for two counts of trafficking in a

fentanyl-related compound, both fifth-degree felonies, for selling less than one gram

of a controlled substance to a confidential informant. The trial court sentenced

Cannon to three years of community control, 180 days’ incarceration in the jail,

completion of the CBI Program, and 50 hours of community service. In his sole

assignment of error, Cannon argues that he was entitled to a community-control

sentence under R.C. 2929.13(B)(1)(a), and that the trial court’s imposition of a jail

term amounted to a “trial tax.” For the following reasons, we affirm the judgment of

the trial court in part, reverse the judgment of the trial court in part, and remand the

cause to the trial court.

Factual Background

{¶2} After a trial, the jury found Cannon guilty of two counts of trafficking in

a fentanyl-related compound, both fifth-degree felonies. The trial court ordered a

presentence investigation (“PSI”) and ordered that Cannon be taken into custody.

Defense counsel asked the court to consider a stay of one week to allow Cannon to get

his affairs in order. The court responded, “No.”

{¶3} At the sentencing hearing, Cannon’s counsel acknowledged that Cannon

is addicted to Percocet pills and requested drug treatment at an outpatient facility,

DeCoach in Westwood. Counsel informed the court that the convictions should merge,

and that Canon was entitled to a presumption of community control because this was

his first felony conviction as an adult.

{¶4} Cannon read a statement to the court, explaining that he was a full-time

parent to three children, ages one, eight, and nine. His father died when he was one,

and his mother died when he was 15, 13 years prior. After his mother’s death, he

3 OHIO FIRST DISTRICT COURT OF APPEALS

allowed himself to be influenced by the wrong people. While in jail, he had worked in

the kitchen every day. Cannon graduated from high school, and being in jail made him

realize that he can do better in life.

{¶5} The State agreed that the convictions should merge because Cannon

sold one substance and deferred to the court as to sentencing.

{¶6} The court informed Cannon that he did not admit that he committed the

offenses or express remorse. Then the court asked him why he used Percocet. Cannon

explained that he started using Percocet when his mom died in 2013. When asked by

the court, Cannon admitted that he sold fentanyl but said he did not use the drug

because it could kill him. The court asked why he would sell it to others, and Cannon

responded, “My mind wasn’t right. And I’m sorry. I take full responsibility.” The

following colloquy occurred,

The Court: I understand that, and I appreciate that. You take full

responsibility now because the jury found you guilty. You did not -- you

exercised your constitutional right, which you’re absolutely are entitled

to do, and the jury proved it. But you didn’t take responsibility before.

You know, seems a little disingenuous, no offense, you know?

Cannon: Yes, ma’am.

The Court: And no explanation for why you’re doing that. If you’ve got

this job with your wife -- I mean, not your wife, the mother of your kid,

and you’ve got this cleaning business, why aren’t you doing that and not

selling drugs and taking care of your kid?

Cannon: We just started it. So I about to get my mind right.

The Court: And now you’re in jail because you sell drugs to other people.

That’s the problem I got. You know, if you were just a drug addict and

4 OHIO FIRST DISTRICT COURT OF APPEALS

had a drug problem, I could put you in a treatment program and help

you. But you’re not. You’re a trafficker. You’re a drug seller. You sell

drugs to other people, and they ruin their lives. I can’t help you with

that. You’re just making money. If you’re a drug user, yeah, I can help

you. Drug seller, I cannot. You know, you ruin things for everybody

else.

{¶7} The court sentenced Cannon to three years of community control on

intensive supervision probation, 180 days in the justice center with credit for the 36

days he had already served, completion of the CBI program, and 50 hours of

community service.1 The court sentenced him on both offenses and ordered that the

sentences be served concurrently despite the fact that the State conceded that the

offenses should have merged.

{¶8} Cannon appeals, and in his sole assignment of error, he contends that

the trial court erred by imposing sentences that amounted to a “trial tax” when the

court sentenced him to a period of incarceration equal to the minimum term of

incarceration permitted by law for a felony of the fifth degree in addition to placing

him on community control, where he was convicted of two felonies of the fifth degree

and the defendant had not previously been convicted of a felony offense.

Community-Control Sentencing

{¶9} The standard of review for an appeal of a felony sentence is governed by

R.C. 2953.08(G)(2). See State v. Marcum, 2016-Ohio-1002, ¶ 1. An appellate court

may vacate or modify a felony sentence on appeal if it determines by clear and

convincing evidence that the sentence is contrary to law. See id. A sentence is contrary

1 Notably, the court could have imposed up to five years of community control.

5 OHIO FIRST DISTRICT COURT OF APPEALS

to law if the trial court vindictively sentences a defendant for exercising his

constitutional right to a jury trial. State v. Rahab, 2017-Ohio-1401, ¶ 33. “A

defendant’s assertion of actual vindictiveness should be reviewed with the

presumption that the trial court considered the appropriate sentencing criteria.” State

v. Arnold, 2021-Ohio-2836, ¶ 14 (1st Dist.), citing Rahab at ¶ 19. “We will reverse the

sentence only if we clearly and convincingly find the sentence is contrary to law

because it was imposed as a result of actual vindictiveness on the part of the trial

court.” Id. at ¶ 33.

{¶10} Cannon was sentenced under R.C. 2929.13(B)(1)(a),which requires a

court to “sentence the offender to a community control sanction or combination of

community control sanctions” when, as here, the most serious conviction is a fifth-

degree felony,2 the offender has no prior felony convictions, and no convictions within

the past two years for a misdemeanor offense of violence.

{¶11} When the court is not required to impose a prison term, “the court may

directly impose a sentence that consists of one or more community control sanctions

authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code.”

R.C. 2929.15(A)(1). “The duration of all community control sanctions imposed on an

offender under this division shall not exceed five years.” R.C. 2929.15(A)(1). Under

R.C. 2929.16(A), the court may impose any community residential sanction or

combination of community residential sanctions under this section. A court is

authorized to impose a jail term of up to six months under R.C. 2929.16(A)(2).

{¶12} Thus, the court was authorized to impose community control for three

2 See State v. Bailey, 2025-Ohio-5254, ¶ 10 (1st Dist.) (R.C. 2929.13(B)(1)(a) applies when a defendant is convicted of one fourth- or fifth-degree felony and “does not apply when defendants are convicted of multiple fourth- or fifth-degree felonies . . .”).

6 OHIO FIRST DISTRICT COURT OF APPEALS

years and a jail term of up to six months under R.C. 2929.13(B)(1)(a), R.C.

2929.15(A)(1), and R.C. 2929.16(A)(2). Cannon agrees that a jail term was authorized

as a community-control sanction. However, he argues that the jail term amounted to

a “trial tax” for exercising his right to a jury trial.

{¶13} Therefore, this court must “review the entire record—the trial court’s

statements, the evidence adduced at trial, and the information presented during the

sentencing hearing—to determine whether there is evidence of actual vindictiveness.”

Rahab, 2017-Ohio-1401, at ¶ 19. “We will reverse the sentence only if we clearly and

convincingly find the sentence is contrary to law because it was imposed as a result of

actual vindictiveness on the part of the trial court.” Id., citing R.C. 2953.08(G)(2);

Marcum, 2016-Ohio-1002, at ¶ 1.

{¶14} Here, our record is somewhat limited because it does not include the

trial transcripts, only the transcripts from the verdict and sentencing. After the jury

found Cannon guilty, the court ordered a PSI and remanded him into custody. When

Cannon requested a week to get his affairs in order, the court responded, “No.”

Cannon suggests, without explanation or supporting case law, that remanding him

into custody was “the first indicator that a trial tax was being imposed.” The court

made no statements that could be construed as punishing Cannon for exercising his

right to a jury trial when declining Cannon’s request for time to get his affairs in order.

Moreover, after a conviction, “bail is more likely to be denied since the danger of flight

is ‘inherently greater after conviction than before a guilty verdict.’” Miles v. Telb,

2003-Ohio-4220, ¶ 2 (6th Dist.), citing Christopher v. McFaul, 18 Ohio St.3d 233, 234

(1985).

{¶15} After Cannon read his statement of allocution at the sentencing hearing,

the court pointed out that Cannon did not admit that he committed the offenses or

7 OHIO FIRST DISTRICT COURT OF APPEALS

express his remorse in his statement. The court further remarked, “You take full

responsibility now because the jury found you guilty. You did not -- you exercised your

constitutional right, which you’re absolutely are entitled to do, and the jury proved it.

But you didn’t take responsibility before. You know, seems a little disingenuous, no

offense, you know?”

{¶16} Cannon contends these statements indicate that the jail sentence was a

trial tax. However, “[g]enuine remorse is one factor to be considered by the court

when it makes its sentencing decision.” Rahab, 2017-Ohio-1401, at ¶ 28. Likewise,

“[a]cceptance of responsibility is an appropriate sentencing consideration.” Id. at ¶

17. During allocution, Cannon did not express remorse or accept responsibility for his

conduct. After the court pointed this out, Cannon apologized. The court’s statements

reflect the court’s acknowledgement that Cannon belatedly took responsibility and

expressed remorse, but the court was skeptical about the genuineness of his

statements.

{¶17} In State v. Davis, 2006-Ohio-4723 (9th Dist.), the defendant argued

that the court erred in sentencing him by discounting his statement of remorse. Id. at

¶ 5. The court noted that, “While it is true that [defendant] apologized for his conduct,

it is equally true that the trial court considered [defendant’s] statement of remorse and

found it to be less than genuine.” The court held that the sentencing statute “requires

only that trial courts ‘shall consider’ an offender’s showing of genuine remorse, not

that a court must accept such statement as true if one is offered.” Id. at ¶ 7.

{¶18} Here, as in Davis, “the trial court considered [Cannon’s] statement and

rejected it, as is within its discretion.” See id. Moreover, the court did not disparage

Cannon or criticize his decision to go to trial. More importantly, the court

acknowledged that Cannon was absolutely entitled to exercise his right to a jury trial.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} Reviewing the court’s comments in totality, the court may have shown

some degree of frustration or displeasure that Cannon sold drugs that could

potentially kill the individuals who purchased them from him, while admitting that he

did not use fentanyl due to the risk of death. Prior to imposing the sentence, the court

further explained its frustration, “And now you’re in jail because you sell drugs to other

people. That’s the problem I got. . . . You’re a trafficker. You’re a drug seller. You sell

drugs to other people, and they ruin their lives. I can’t help you with that. You’re just

making money.”

{¶20} The record indicates that the sentence was based upon the evidence of

Cannon’s guilt presented at trial, his admission of guilt, his lack of remorse, and the

harm that fentanyl has caused to the community. The record does not clearly and

convincingly demonstrate that the trial court based its sentence on actual

vindictiveness.

{¶21} Accordingly, we overrule the sole assignment of error.

Double Jeopardy

{¶22} We note that the trial court sentenced Cannon on both offenses despite

the fact that the State agreed the offenses should merge for sentencing. As the State

explained to the trial court, both offenses were based on the sale of a single mixture of

drugs and should have merged. See State v. Keese, 2024-Ohio-5075, ¶ 56 (1st Dist.)

(“In State v. Pendleton, 2020-Ohio-6833, ¶ 19-20, the Ohio Supreme Court held that

R.C. 2925.03 does not allow separate punishments for multiple drug-trafficking

convictions when the factual basis of the convictions is trafficking a mixture of

[drugs].”); State v. Pendleton, 2020-Ohio-6833, ¶ 19 (In imposing separate sentences

for two trafficking convictions based on a mixture of drugs, “the trial court punished

[defendant] twice for a singular quantity of drugs, violating his right to be free from

9 OHIO FIRST DISTRICT COURT OF APPEALS

double jeopardy.”).

{¶23} An appellate court “‘may recognize plain error, sua sponte, to prevent a

miscarriage of justice.’” State v. Berry, 2021-Ohio-2249, ¶ 21 (6th Dist.), citing State

v. Magee, 2019-Ohio-1921, ¶ 25 (6th Dist.), quoting State v. Vinson, 2016-Ohio-7604,

¶ 66 (8th Dist.); State v. Slagle, 65 Ohio St.3d 597, 604 (1992) (recognizing that

Crim.R. 52(B) allows an appellate court to sua sponte consider a trial error to which

the appellant did not object). Here, Cannon and the prosecutor agreed that the

offenses should have been merged for sentencing.

{¶24} Accordingly, we reverse the trial court’s sentences and remand the cause

for resentencing so that the State may choose which offense to pursue.

Conclusion

{¶25} We reverse the judgment of the trial court and remand the cause to the

trial court for a new sentencing hearing to allow the State to choose which offense it

wishes to pursue for sentencing. We affirm the trial court’s judgment in all other

respects.

Judgment accordingly.

BOCK and NESTOR, JJ., concur.