State v. Crawford

2024 Ohio 4454

Opinion

[Cite as State v. Crawford, 2024-Ohio-4454.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : SHANTIA CRAWFORD, : Case No. 2023 CA 0073 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2023 CR 0113

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 9, 2024

APPEARANCES:

For Defendant-Appellant

GREGORY SCOTT ROBEY Robey & Robey 14402 Granger Road Cleveland, Ohio 44137 Richland County, Case No. 2023 CA 0073 2

Baldwin, J.

{¶1} The appellant appeals her sentence following her plea of guilty to Trafficking

in a Fentanyl Related Compound, Possession of a Fentanyl Related Compound,

Trafficking in Heroin, and Possession of Heroin. The appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On April 21, 2023, the appellant was indicted for Trafficking in Fentanyl

Related Compound in violation of R.C. §2925.03(A)(2) and (C)(9)(f), Possession of a

Fentanyl Related Compound in violation of R.C. §2925.11 (A) and (C)(11)(e), Trafficking

in Heroin in violation of R.C. §2925.03(A)(2) and (C)(6)(e), and Possession of Heroin in

violation of R.C. §2925.11(A) and (C)(6)(d). The appellant entered a plea of not guilty to

the indictment.

{¶3} On June 30, 2023, the appellant filed a Motion to Suppress.

{¶4} On July 7, 2023, the trial court denied the appellant’s Motion to Suppress.

{¶5} On October 26, 2023, the appellant changed her plea to guilty on all four

counts.

{¶6} On November 27, 2023, the appellant was sentenced to an indefinite prison

term of six to nine years and fined $10,000 plus court costs.

{¶7} The appellant filed a timely appeal, and sets forth the following two

assignments of error:

{¶8} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED AN AGGREGATE

INDEFINITE PRISON TERM OF 6-9 YEARS, WHICH IS NOT SUPPORTED BY THE

RECORD.” Richland County, Case No. 2023 CA 0073 3

{¶9} “II. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN

FAILING TO TIMELY FILE A MOTION TO WAIVE MANDATORY DRUG FINE AND

COSTS, BASED UPON INDIGENCY, PRIOR TO THE SENTENCING HEARING.”

I.

{¶10} In her first assignment of error, the appellant argues the trial court erred in

sentencing her to a prison term of six to nine years as this sentence is not supported by

the record. We disagree.

STANDARD OF REVIEW

{¶11} Felony sentences are reviewed under R.C. §2953.08(G)(2). State v.

Goings, 2014-Ohio-2322 (6th Dist.), ¶20. An appellate court may increase, modify, or

vacate and remand a judgment only if it clearly and convincingly finds either “(a) 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” or “(b) the sentence is otherwise

contrary to law.” State v. Yeager, 2016-Ohio-4759 (6th Dist.), ¶7, citing R.C.

§2953.08(G)(2). Clear and convincing evidence is “that measure or degree of proof which

will produce in the mind of the trier of facts a firm belief or conviction as to the allegations

sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954).

ANALYSIS

{¶12} The appellant pleaded guilty to Trafficking in Fentanyl Related Compound

in violation of R.C. §2925.03(A)(2) and (C)(9)(f), Possession of a Fentanyl Related

Compound in violation of R.C. §2925.11 (A) and (C)(11)(e), Trafficking in Heroin in Richland County, Case No. 2023 CA 0073 4

violation of R.C. §2925.03(A)(2) and (C)(6)(e), and Possession of Heroin in violation of

R.C. §2925.11(A) and (C)(6)(d).

{¶13} R.C. §2925.03 provides, in pertinent part:

(A) No person shall knowingly do any of the following:

**

(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or

distribute a controlled substance or a controlled substance analog, when

the offender knows or has reasonable cause to believe that the controlled

substance analog is intended for sale or resale by the offender or another

person.

(C) Whoever violates division (A) of this section is guilty of one of the

following:

(6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A)

of this section is guilty of trafficking in heroin. The penalty for the offense

shall be determined as follows:

(e) Except as otherwise provided in this division, if the amount of the drug

involved equals or exceeds one hundred unit doses but is less than five

hundred unit doses or equals or exceeds ten grams but is less than fifty

grams, trafficking in heroin is a felony of the second degree, and the court

shall impose as a mandatory prison term a second degree felony mandatory Richland County, Case No. 2023 CA 0073 5

prison term. If the amount of the drug involved is within that range and if the

offense was committed in the vicinity of a school, in the vicinity of a juvenile,

or in the vicinity of a substance addiction services provider or a recovering

addict, trafficking in heroin is a felony of the first degree, and the court shall

impose as a mandatory prison term a first degree felony mandatory prison

term.

(9) If the drug involved in the violation is a fentanyl-related compound or a

compound, mixture, preparation, or substance containing a fentanyl-related

compound and division (C)(10)(a) of this section does not apply to the drug

involved, whoever violates division (A) of this section is guilty of trafficking

in a fentanyl-related compound. The penalty for the offense shall be

determined as follows:

(f) If the amount of the drug involved equals or exceeds two hundred unit

doses but is less than five hundred unit doses or equals or exceeds twenty

grams but is less than fifty grams and regardless of whether the offense

was committed in the vicinity of a school, in the vicinity of a juvenile, or in

the vicinity of a substance addiction services provider or recovering addict,

trafficking in a fentanyl-related compound is a felony of the first degree, and

the court shall impose as a mandatory prison term one of the prison terms

prescribed for a felony of the first degree.

{¶14} R.C. §2925.11 provides, in pertinent part: Richland County, Case No. 2023 CA 0073 6

(A) No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.

(C) Whoever violates division (A) of this section is guilty of one of the

(6) If the drug involved in the violation is heroin or a compound, mixture,

preparation, or substance containing heroin, whoever violates division (A)

of this section is guilty of possession of heroin. The penalty for the offense

(d) If the amount of the drug involved equals or exceeds one hundred unit

doses but is less than five hundred unit doses or equals or exceeds ten

grams but is less than fifty grams, possession of heroin is a felony of the

second degree, and the court shall impose as a mandatory prison term a

second degree felony mandatory prison term.

(11) If the drug involved in the violation is a fentanyl-related compound and

neither division (C)(9)(a) nor division (C)(10)(a) of this section applies to the

drug involved, or is a compound, mixture, preparation, or substance that

contains a fentanyl-related compound or is a combination of a fentanyl-

related compound and any other controlled substance and neither division

(C)(9)(a) nor division (C)(10)(a) of this section applies to the drug involved, Richland County, Case No. 2023 CA 0073 7

whoever violates division (A) of this section is guilty of possession of a

fentanyl-related compound. The penalty for the offense shall be determined

as follows:

(e) If the amount of the drug involved equals or exceeds two hundred unit

doses but is less than five hundred unit doses or equals or exceeds twenty

grams but is less than fifty grams, possession of a fentanyl-related

compound is a felony of the first degree, and the court shall impose as a

mandatory prison term one of the prison terms prescribed for a felony of the

first degree.

{¶15} R.C. §2929.14(A) addresses prison terms:

(1)(a) For a felony of the first degree committed after March 22, 2019, the

prison term shall be an indefinite prison term with a stated minimum term

selected by the court of three, four, five, six, seven, eight, nine, ten, or

eleven years and a maximum term that is determined pursuant to section

2929.144 of the Revised Code[.]

(2)(a) For a felony of the second degree committed after March 22, 2019,

the prison term shall be an indefinite prison term with a stated minimum

term selected by the court of two, three, four, five, six, seven, or eight years

and a maximum term that is determined pursuant to section 2929.144 of the

Revised Code[.] Richland County, Case No. 2023 CA 0073 8

{¶16} In the case sub judice, the trial court judge merged counts one, two, three,

and four. Thus, the appellant’s possible sentence for the Trafficking in Fentanyl Related

Compound offense, a first-degree felony, was three, four, five, six, seven, eight, nine, ten,

or eleven years. The trial court imposed a prison term of six to nine years, which is within

statutory parameters.

{¶17} R.C. §2929.11 addresses the purposes of felony sentencing, and states in

pertinent part:

(A) A court that sentences an on 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 Richland County, Case No. 2023 CA 0073 9

consistent with sentences imposed for similar crimes committed by similar

offenders.

{¶18} R.C. 2929.12 addresses the factors the trial court must take into account

when imposing sentence in felony matters, and provides 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

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.

(D) The sentencing court shall consider all of the following that apply

regarding the offender and any other relevant factors, as factors indicating

that the offender is likely to commit future crimes:

(2) The offender previously was adjudicated a delinquent child pursuant to

Chapter 2151. Of the Revised Code prior to January 1, 2002, or pursuant Richland County, Case No. 2023 CA 0073 10

to Chapter 2152. Of the Revised Code, or the offender has a history of

criminal convictions.

(E) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating

that the offender is not likely to commit future crimes:

(5) The offender shows genuine remorse of the offense.

{¶19} The appellant argues that the trial court abused its discretion when imposing

a sentence because it failed to take into account that she showed remorse for her actions,

alleges the appellant did not expect to cause harm by trafficking fentanyl, and that the

trial court gave unfair weight to the weight and type of drug involved. We disagree.

{¶20} The trial court noted during the sentencing hearing that while the appellant

was cooperative with police, she had a criminal record as a juvenile, and as an adult, she

had been convicted of disorderly conduct five times as well as conspiracy to distribute

narcotics. She has previously spent time in a federal penitentiary on a trafficking charge.

The appellant does not point to any place in the record demonstrating that the appellant

sincerely did not expect to cause harm by trafficking fentanyl.

{¶21} This court recently addressed sentencing issues in State v. Worden, 2022-

Ohio-4648 (5th Dist.), ¶27:

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 Richland County, Case No. 2023 CA 0073 11

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶39. The Ohio

Supreme Court further elucidated in State v. Toles, 166 Ohio St.3d 397,

2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,

precludes second-guessing sentence imposed by the trial court based on

its weighing of the considerations in R.C. 2929.11 and 2929.12.”

{¶22} The sentence imposed by the trial court on the charges to which the

appellant pleaded guilty complies with the applicable sentencing statutes. The sentence

was within the statutory sentencing range. The appellant has not shown that the trial court

imposed the sentence based upon impermissible considerations, for example,

considerations that fall outside those that are contained in R.C. 2929.11 and R.C.

2929.12. The record contains evidence supporting the trial court’s findings based upon

the applicable law. The trial court did not err in imposing a sentence upon the appellant,

and we find no basis for concluding that the trial court’s decision is contrary to law.

{¶23} The overriding purposes of felony sentencing are, inter alia, to punish the

offender and to protect the public from future crimes by the offender. The sentence

imposed by the trial court in this case achieves the aforesaid statutory purposes, as it

punishes the appellant for her offense and protects the public from future crimes by the

appellant. The trial court discussed the appellant’s criminal history during the sentencing

hearing. To achieve the purposes of felony sentencing in this case, the trial court properly

considered the appellant’s history, the need to incapacitate the appellant, and the need

to deter the appellant, and others, from committing future crimes.

{¶24} Based on the foregoing, we find that the trial court did not err when it

sentenced the appellant. The trial court’s sentencing on the charges to which the Richland County, Case No. 2023 CA 0073 12

appellant pleaded guilty complies with the applicable rules and sentencing statutes. While

the appellant may disagree with the way in which the trial court weighed those factors,

her sentence was within the applicable statutory range. Accordingly, there is no basis

upon which to conclude that the sentence imposed by the trial court is contrary to law.

{¶25} Accordingly, the appellant’s first Assignment of Error is overruled.

II.

{¶26} In her second assignment of error, the appellant summarily argues she was

deprived of effective assistance of counsel as her trial counsel failed to timely file a motion

to waive mandatory drug fines and costs. We disagree.

{¶27} The standard of review for ineffective assistance of counsel was set forth in

the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), and was discussed by this court in Mansfield v. Studer, 2012-Ohio-4840 (5th

Dist.):

A claim of ineffective assistance of counsel requires a two-prong

analysis. The first inquiry is whether counsel’s performance fell below an

objective standard of reasonable representation involving a substantial

violation of any of defense counsel’s essential duties to appellant. The

second prong is whether the appellant was prejudiced by counsel’s

ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, [113 S.Ct. 838];

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Richland County, Case No. 2023 CA 0073 13

{¶28} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111,

129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).

{¶29} To show deficient performance, the appellant must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland at 688.

This requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Strickland at 687. Counsel also has a duty to bring to bear such skill and knowledge as

will render the trial a reliable adversarial process. Strickland at 688.

Thus, a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct. A convicted

defendant making a claim of ineffective assistance must identify the acts or

omissions of counsel that are alleged not to have been the result of

reasonable professional judgment. The court must then determine whether,

in light of all the circumstances, the identified acts or omissions were outside

the wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel’s function, as

elaborated in prevailing professional norms, is to make the adversarial

testing process work in the particular case. At the same time, the court

should recognize that counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. Richland County, Case No. 2023 CA 0073 14

Id.

In light of the “variety of circumstances faced by defense counsel

[and] the range of legitimate decisions regarding how best to represent a

criminal defendant,” the performance inquiry necessarily turns on “whether

counsel’s assistance was reasonable considering all the circumstances.”

Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all

points, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at

2064.

Studer, Supra, at ¶¶58-61.

{¶30} To demonstrate prejudicial ineffective assistance of counsel, the appellant

must show a “reasonable probability that but for counsel’s errors, the result of the trial

would have been different.” Strickland at 687-688. “Reasonable probability” is “probability

sufficient to undermine confidence in the outcome.” Strickland at 694.

{¶31} The appellant summarily argues that her trial counsel was ineffective for

failing to request a waiver of fines and costs. However, appellants have the burden of

demonstrating an error on appeal. See, App.R. 16(A)(7). “It is the duty of the appellant,

not this court, to demonstrate his assigned error through an argument that is supported

by citations to legal authority and facts in the record.” State v. Untied, 2007-Ohio-1804

(5th Dist.), ¶141.

{¶32} The appellant did not support her argument with any citations to the record.

The appellant failed to demonstrate that she filed an affidavit of indigency at the trial court. Richland County, Case No. 2023 CA 0073 15

Furthermore, the record shows the appellant retained private counsel for proceedings at

the trial court. Therefore, the appellant failed to show that a request for waiver of fines or

costs would have had a reasonable probability of success. Accordingly, the appellant

failed to show she was prejudiced by any alleged ineffectiveness of trial counsel.

{¶33} The appellant’s second Assignment of Error is overruled.

CONCLUSION

{¶34} For the forgoing reasons, the judgment of the Court of Common Pleas,

Richland County, Ohio, is hereby affirmed.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.