State v. Daniels

2024 Ohio 1095

• Court: Ohio Court of Appeals
• Decided: March 22, 2024
• Docket: 2023CA00065
• Status: Published

Opinion

[Cite as State v. Daniels, 2024-Ohio-1095.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2023CA00065 JEREMY DANIELS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 22CR00320

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 22, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNY WELLS TODD W. BARSTOW Prosecuting Attorney 261 Johnston Road, Suite 204 BY: KENNETH W. OSWALT Columbus, OH 43230 Assistant Prosecutor 20 S. Second Street, 4th Floor Newark, OH 43055 Licking County, Case No. 2023CA00065 2

Gwin, P.J.

{¶1} Defendant-appellant Jeremy J. Daniels [Daniels] appeals his convictions

and sentences after a negotiated guilty plea in the Licking County Court of Common

Pleas.

Facts and Procedural History

{¶2} On July 14, 2022, Daniels was indicted for one count of Unlawful Sexual

Conduct with a minor, thirteen years of age or older, but less than sixteen years of age,

a felony of the third degree in violation of R.C. 2907.04(A) and two counts of Pandering

Obscenity involving a minor, felonies of the second degree in violation of R.C.

2907.321(A)(1).

{¶3} On August 10, 2023, Daniels filed a notice of his intention to enter guilty

pleas. [Docket Entry No. 84]. On September 8, 2023, Daniels filed a written “Entry of

Guilty Plea,” and with his attorney, appeared before the trial judge for a change of plea

and sentencing. A presentence investigation report was prepared prior to the scheduled

court appearance. T., Change of Plea and Sentencing, Sept. 8, 2023 at 17.

{¶4} After being advised of his constitutional and nonconstitutional rights by the

trial judge, Daniels entered pleas of guilty to the charges set forth in the indictment. The

prosecutor's recitation of the facts revealed that in January of 2022, the Pataskala Police

Department was notified that M.A., a fourteen-year-old child, was involved in a sexual

relationship with Daniels, who was then 35 years old. Subsequent investigation revealed

that M.A. had sent Daniels nude pictures and videos depicting her engaging in sexual

activity via a cell phone. Daniels admitted the nature of the sexual relationship in a

recorded conversation with M.A.’ s mother. Id. at 14-15. Licking County, Case No. 2023CA00065 3

{¶5} Prior to sentencing, the trial judge heard from M.A. who provided a lengthy

and detailed rendition of the horrors Daniels inflicted upon her. M.A. told the judge that

Daniels pretended to be nineteen years old when the two met in an online chatroom. T.,

Change of Plea and Sentencing, Sept. 8, 2023 at 23-31. The trial judge heard that Daniels

contacted M.A. while in jail. Daniels further cut-off his ankle monitor, fled and remained

at large from November 2, 2023 until his arrest in Chicago, Il. on May 19, 2023. The trial

judge also heard from M.A.’s mother who detailed the ordeals effect on the family. T.,

Change of Plea and Sentencing, Sept. 8, 2023 at 21-23.

{¶6} The state recommended a sentence of 8 years. After hearing from all

parties, the trial court imposed a sentence of 8 years. Id. at 18. As part of the sentence,

the trial court sentenced Daniels to an indefinite prison term on the charges pursuant to

Revised Code section 2967.271, for an indeterminate sentence of 8 to 12 years. Id. at 41.

The trial court filed its sentencing entry on September 8, 2023.

Assignment of Error

{¶7} Daniels raises one Assignment of Error,

{¶8} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

SENTENCING HER IN CONTRAVENTION OF OHIO'S SENTENCING STATUTES.”

Law and Analysis

{¶9} We review 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. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record Licking County, Case No. 2023CA00065 4

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.

{¶10} Clear and convincing evidence is that evidence “which will provide 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. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).

“Where the degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St.

at 477, 120 N.E.2d 118.

{¶11} The Ohio Supreme Court reviewed the issue of “whether a sentence is

“contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds that the

record does not support a sentence with respect to R.C. 2929.11 and 2929.12. State v.

Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. Although a court imposing

a felony sentence must consider the purposes of felony sentencing under R.C. 2929.11

and the sentencing factors under R.C. 2929.12, “neither R.C. 2929.11 nor 2929.12

requires [the] court to make any specific factual findings on the record.” Id. at ¶ 20, citing

State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State

v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). 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. The Ohio Licking County, Case No. 2023CA00065 5

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 a

sentence imposed by the trial court based on its weighing of the considerations in R.C.

2929.11 and 2929.12.”

{¶12} “‘Otherwise contrary to law’ means “‘in violation of statute or legal

regulations at a given time.’” Jones 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.

Purposes and Principles of Felony Sentencing - R.C. 2929.11

{¶13} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes. In order

to achieve these purposes and principles, the trial court must 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. R.C. 2929.11(A). Additionally, the sentence “must be commensurate with, and

not demeaning to, the seriousness of the offender’s conduct and its impact on the victims Licking County, Case No. 2023CA00065 6

and consistent with sentences imposed for similar crimes by similar offenders.” R.C.

2929.11(B).

Seriousness and Recidivism - R.C. 2929.12

{¶14} R.C. 2929.12 is a guidance statute that sets forth the seriousness and

recidivism criteria that a trial court “shall consider” in fashioning a felony sentence.

Subsections (B) and (C) establish the factors indicating whether the offender’s conduct is

more serious or less serious than conduct normally constituting the offense. These factors

include the physical or mental injury suffered by the victim due to the age of the victim;

the physical, psychological, or economic harm suffered by the victim; whether the

offender’s relationship with the victim facilitated the offense; the defendant’s prior criminal

record; whether the defendant was under a court sanction at the time of the offense;

whether the defendant shows any remorse; and any other relevant factors. R.C.

2929.12(B). The court must also consider any factors indicating the offender’s conduct is

less serious than conduct normally constituting the offense, including any mitigating

factors. R.C. 2929.12(C). Subsections (D) and (E) contain the factors bearing on whether

the offender is likely or not likely to commit future crimes.

Issue for Appellate Review: Whether Daniels’ 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.

{¶15} In the instant case, the record demonstrates the trial court reviewed Daniels

PSI and listened to the statements from the prosecutor, the victim’s mother, the victim,

defense counsel, and Daniels. In open court and in its sentencing entry, the trial court

indicated it considered the seriousness and recidivism factors under R.C. 2929.11, Licking County, Case No. 2023CA00065 7

2929.12 and R.C. 2929.13. The trial court sentenced Daniels to a sentence that is

permissible for the felonies that he had pled guilty, and he 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.”

State v. Cottrell, 5th Dist. Muskingum No. CT2022-0061, 2023-Ohio-1391, ¶ 21, citing

Bryant, supra.

{¶16} Daniels argument that his sentence violates the general assembly’s intent

to minimize the unnecessary burden on state and local government resources is not well

taken. In State v. Ober, Second Dist. No. 97CA0019, 1997 WL 624811 (Oct. 10, 1997),

the Court considered this same issue. The Ober court concluded, “[a]lthough resource

burdens may be a relevant sentencing criterion, R.C. 2929.13(D) does not require trial

courts to elevate resource conservation above the seriousness and recidivism factors.”

Id.

{¶17} Several other appellate courts, including our own, considering these issues

have reached the same conclusion. See, e.g., State v. Hyland, 12th Dist. Butler No.

CA2005–05–103, 2006–Ohio–339, ¶ 32; State v. Brooks, 10th Dist. Franklin No. 97APA–

11–1543, 1998 WL 514111 (Aug. 18, 1998); State v. Stewart, 8th Dist. Cuyahoga No.

74691, 1999 WL 126940 (Mar. 4, 1999); State v. Fox, 3rd Dist. Wyandot No. 16–2000–

17, 2001 WL 218433 (Mar. 6, 2001); State v. Banks, 5th Dist. Ashland No. 12-COA-045,

2013-Ohio-2847, ¶27; State v. Miller, 5th Dist. Ashland No. 04–COA–003, 2004–Ohio–

4636. We agree with the reasoning of the Ober court and other courts considering this

issue and find no merit to Daniels argument. Licking County, Case No. 2023CA00065 8

{¶18} Likewise, Daniels appeal to this Court to adopt Justice Donnelly’s dissenting

opinion in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 is

unconvincing. [Appellant’s brief at 3]. Article IV of the Ohio Constitution designates a

system of “superior” and “inferior” courts, each possessing a distinct function. The

Constitution does not grant to a court of common pleas or to a court of appeals jurisdiction

to reverse or vacate a decision made by a superior court. See, State ex rel. Cordray v.

Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 666, ¶32; State, ex rel. Potain

v. Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343, 345 (1979); R.C. 2305.01. Unless

“anarchy [is] to prevail within [our] judicial system, a precedent of [a higher court] must be

followed by the lower [] courts no matter how misguided the judges of those courts may

think it to be.” Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982).

{¶19} Upon review, we find that the trial court’s sentencing complies with

applicable rules and sentencing statutes. While Daniels may disagree with the weight

given to these factors by the trial judge, his sentence was within the applicable statutory

range and not based on impermissible considerations—i.e., considerations that fall

outside those that are contained in R.C. 2929.11 and 2929.12; therefore, we have no

basis for concluding that it is contrary to law. State v. Elkins, 5th Dist. Knox No.

22CA000021, 2023-Ohio-1358, ¶ 22.

{¶20} Daniels sole Assignment of Error is overruled. Licking County, Case No. 2023CA00065 9

{¶21} The judgment of the Licking County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur