State v. Cottrell

2023 Ohio 1391

• Court: Ohio Court of Appeals
• Decided: April 27, 2023
• Docket: CT2022-0061
• Status: Published

Opinion

[Cite as State v. Cottrell, 2023-Ohio-1391.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : CHIRON S. COTTRELL : Case No. CT2022-0061 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2021-0431

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 27, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN CONNOR DEVER CHRIS BRIGDON 27 North Fifth Street 8138 Somerset Road P.O. Box 189 Thornville, OH 43076 Zanesville, OH 43702 Muskingum County, Case No. CT2022-0061 2

King, J.

{¶ 1} Defendant-Appellant, Chiron S. Cottrell, appeals his June 6, 2022 sentence

from the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-Appellee is the

state of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 19, 2021, the Muskingum County Grand Jury filed a twenty-

count indictment against Cottrell alleging his involvement in a sophisticated drug

trafficking network using the U.S. Mail for the interstate sale of drugs. On March 21, 2022,

Cottrell pled guilty to one count of engaging in a pattern of corrupt activity (F1) in violation

of R.C. 2923.32 and one count of trafficking in drugs (Methamphetamine) (F2) in violation

of R.C. 2925.03. Both counts included forfeiture specifications. By entry filed June 6,

2022, the trial court sentenced appellant to ten years on the F1 count and two years

mandatory on the F2 count, to be served concurrently.

{¶ 3} Cottrell filed an appeal with the following assignment of error:

I

{¶ 4} "SHOULD (SIC) THIS COURT SHOULD REVERSE THE TRIAL COURT'S

DECISION TO IMPOSE A 10 YEAR SENTENCE ON F1 ENGAGING IN A PATTERN OF

CORRUPT ACTIVITY AND A 2 YEAR MANDATORY SENTENCE ON THE F2

TRAFFICKING DRUGS CONSIDERING THE MITIGATING FACTORS DESCRIBED BY

THE DEFENSE COUNSEL AND THE PSI; BECAUSE, THE SENTENCE WAS IN

CONTRAVENTION OF THE SENTENCING STATUTES R.C. §2929.11 AND R.C.

§2929.12." Muskingum County, Case No. CT2022-0061 3

{¶ 5} Cottrell claims his sentence was in contravention of R.C. 2929.11 and

2929.12. We disagree.

{¶ 6} This court reviews felony sentences using the standard of review set forth

in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.

Subsection (G)(2) sets forth this court's standard of review as follows:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law. Muskingum County, Case No. CT2022-0061 4

{¶ 7} "Clear and convincing evidence is that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty

as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

{¶ 8} "A sentence is not clearly and convincingly contrary to law where the trial

court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.' " State v. Morris, 5th Dist. Ashland No. 20-COA-

015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-

022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.

{¶ 9} There is no dispute that the sentences imposed herein are within the

statutory ranges for felonies of the first and second degree. R.C. 2929.14(A)(1) and (2).

In fact, the trial court sentenced Cottrell to the minimum on the F2.

{¶ 10} Cottrell argues his poor health and desire to turn his life around were

mitigating factors to consider and thus he should have been sentenced to the minimum.

He argues the proportionality of his sentence was inconsistent with the principles set forth

in R.C. 2929.11.

{¶ 11} R.C. 2929.11 governs the overriding purposes of felony sentencing and

states the following in pertinent part: Muskingum County, Case No. CT2022-0061 5

(A) A court that sentences an offender for a felony shall be guided by

the overriding purposes of felony sentencing. The overriding purposes of

felony sentencing are to protect the public from future crime by the offender

and others, to punish the offender, and to promote the effective

rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary

burden on state or local government resources. To achieve those

purposes, the sentencing court shall consider the need for incapacitating

the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.

(B) A sentence imposed for a felony shall be reasonably calculated

to achieve the three overriding purposes of felony sentencing set forth in

division (A) of this section, 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.

{¶ 12} R.C. 2929.12 governs factors to consider in felony sentencing and states

the following in pertinent part:

(A) Unless otherwise required by section 2929.13 or 2929.14 of the

Revised Code, a court that imposes a sentence under this chapter upon an Muskingum County, Case No. CT2022-0061 6

offender for a felony has discretion to determine the most effective way to

comply with the purposes and principles of sentencing set forth in section

2929.11 of the Revised Code. In exercising that discretion, the court shall

consider the factors set forth in divisions (B) and (C) of this section relating

to the seriousness of the conduct, the factors provided in divisions (D) and

(E) of this section relating to the likelihood of the offender's recidivism, and

the factors set forth in division (F) of this section pertaining to the offender's

service in the armed forces of the United States and, in addition, may

consider any other factors that are relevant to achieving those purposes and

principles of sentencing.

{¶ 13} R.C. 2929.11 does not require the trial court to make any specific findings

as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require

the trial court to "use specific language or make specific findings on the record in order to

evince the requisite consideration of the applicable seriousness and recidivism factors."

State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Therefore, although

there is a mandatory duty to "consider" the relevant statutory factors under R.C. 2929.11

and 2929.12, the sentencing court is not required to engage in any factual findings under

said statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17;

State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. "The trial court

has no obligation to state reasons to support its findings, nor is it required to give a

talismanic incantation of the words of the statute, provided that the necessary findings Muskingum County, Case No. CT2022-0061 7

can be found in the record and are incorporated into the sentencing entry." State v. Webb,

5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.

{¶ 14} As stated by the Supreme Court of Ohio, R.C. 2953.08(G)(2)(b) "does not

provide a basis for an appellate court to modify or vacate a sentence based on its view

that the sentence is not supported by the record under R.C. 2929.11 and 2929.12." State

v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. "Nothing 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." Id. at 42.

{¶ 15} The Supreme Court of Ohio recently clarified the Jones opinion as follows:

The narrow holding in Jones is that R.C. 2953.08(G)(2) does not

allow an appellate court to modify or vacate a sentence based on its view

that the sentence is not supported by the record under R.C. 2929.11 and

2929.12. See Jones at ¶¶ 31, 39. Nothing about that holding should be

construed as prohibiting appellate review of a sentence when the claim is

that the sentence was imposed based on impermissible considerations—

i.e., considerations that fall outside those that are contained in R.C. 2929.11

and 2929.12. Indeed, in Jones, this court made clear that R.C.

2953.08(G)(2)(b) permits appellate courts to reverse or modify sentencing

decisions that are " 'otherwise contrary to law.' " Jones at ¶ 32, quoting R.C.

2953.08(G)(2)(b). This court also recognized that "otherwise contrary to

law" means " 'in violation of statute or legal regulations at a given time.' " Muskingum County, Case No. CT2022-0061 8

Id. at ¶ 34, quoting Black's Law Dictionary 328 (6th Ed.1990). Accordingly,

when a trial court imposes a sentence based on factors or considerations

that are extraneous to those that are permitted by R.C. 2929.11 and

2929.12, that sentence is contrary to law. Claims that raise these types of

issues are therefore reviewable.

State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶22.

{¶ 16} Cottrell argues the trial court impermissibly considered prior arrests of

unproven charges thereby violating his due process rights. However, "[c]ourts have

consistently held that evidence of other crimes, including crimes that never result in

criminal charges being pursued, or criminal charges that are dismissed as a result of a

plea bargain, may be considered at sentencing." Mt. Vernon v. Hayes, 5th Dist. Knox No.

09-CA-00007, 2009-Ohio-6819, ¶ 54. Accord State v. Smith, 5th Dist. Licking No. 09-CA-

42, 2010-Ohio-1232, ¶ 117-118.

{¶ 17} Cottrell cites the case of State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-

2338, 888 N.E.2d 1073, for the premise that his sentence was not proportional and

"shocks the sense of community." Cottrell also cites the Eighth Amendment to the United

States Constitution prohibiting cruel and unusual punishment. However, Cottrell's

sentence is well within the statutory range, a fact he does not challenge. "As a general

rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and

unusual punishment." McDougle v. Maxwell, 1 Ohio St.2d 68,69, 203 N.E.2d 334 (1964). Muskingum County, Case No. CT2022-0061 9

Accord Hairston at ¶ 21. Further, Cottrell's medical condition is not a factor in the

consideration of cruel and unusual punishment:

In all cases, the United States Supreme Court has applied the Eighth

Amendment prohibition against cruel and unusual punishment to

punishment which is grossly disproportionate to the offense itself. While

defendant, because of his handicaps, may suffer greater hardships in prison

than one without such disabilities, these hardships are not a result of his

conviction or imprisonment but are the result of his physical and mental

conditions which are essentially the same whether defendant is

incarcerated or not. (Emphasis sic.)

State v. O'Shannon, 44 Ohio App.3d 197, 200-201, 542 N.E.2d 693 (10th Dist.1988).

{¶ 18} Accordingly, Cottrell's sentence is neither excessive nor shocking.

{¶ 19} The record demonstrates the trial court received and reviewed the

presentence investigation report, and heard statements from the prosecutor, defense

counsel, and Cottrell himself. The trial court reviewed Cottrell's criminal history which

included prior convictions from 2013, 2007, and 2002. June 2, 2022 T. at 9. The trial

court noted the present case had "a whole bunch of counts dismissed and a bunch of

drugs involved." Id. Cottrell was facing twenty counts and many possible years in prison

before he chose to plead guilty to two counts. The trial court also noted Cottrell's poor

health. Id. Muskingum County, Case No. CT2022-0061 10

{¶ 20} In its sentencing entry, the trial court indicated it considered "the principles

and purposes of sentencing under Ohio Revised Code §R.C. 2929.11 and its balance of

seriousness and recidivism factors under Ohio Revised Code §R.C. 2929.12." The trial

court sentenced Cottrell to terms within the statutory range and ordered them to be served

concurrently. Cottrell has not demonstrated that the trial court imposed the sentence

"based on impermissible considerations—i.e., considerations that fall outside those that

are contained in R.C. 2929.11 and 2929.12." Bryant, supra.

{¶ 21} Upon review, we find the trial court's sentence is not clearly and

convincingly contrary to law. The trial court considered the R.C. 2929.11 and 2929.12

factors, imposed postrelease control, and sentenced Cottrell within the statutory ranges.

{¶ 22} The sole assignment of error is denied.

{¶ 23} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By King, J.

Gwin, P.J. and

Baldwin, J. concur.

AJK/db