State v. Dawson

2018 Ohio 1157

• Court: Ohio Court of Appeals
• Decided: March 23, 2018
• Docket: 17CA8
• Status: Published

Opinion

[Cite as State v. Dawson, 2018-Ohio-1157.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 17CA8

v. : DECISION AND DWAYNE C. DAWSON, : JUDGMENT ENTRY

Defendant-Appellant. : RELEASED 03/23/2018

APPEARANCES: Matthew L. O’Leary, Circleville, Ohio, for defendant-appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Heather MJ Armstrong, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for plaintiff-appellee.

Hoover, P.J. {¶1} This is an appeal from a judgment of conviction and sentence entered by the

Pickaway County Court of Common Pleas following a guilty plea by Dwayne C. Dawson

(“Dawson”), appellant herein, to one count of involuntary manslaughter and one count of

trafficking in heroin. On appeal, Dawson contends that his sentence was clearly and

convincingly contrary to law. Specifically, Dawson claims that the record does not support the

trial court’s consideration of R.C. 2929.11 and R.C. 2929.12.

{¶2} For the reasons discussed more fully below, we overrule Dawson’s sole

assignment of error and affirm the judgment of the trial court.

I. Facts and Procedural History Pickaway App. No. 17CA8 2

{¶3} In June 2016, the Pickaway County Grand Jury returned an indictment charging

Dawson with one count of involuntary manslaughter, in violation of R.C. 2903.04(A), a felony

of the first degree, and one count of trafficking in heroin, in violation of R.C.

2925.03(A)(1)/(C)(6)(a), a felony of the fifth degree. In August 2016, Dawson pleaded not guilty

at his arraignment.

{¶4} The charges stemmed from the death of Jessica Lillie, a twenty-seven year old

woman. Jessica had been in an accident for which a doctor prescribed pain killers. She had

become addicted to the pills; and when they ran out, she did heroin. On the evening of the crime,

Dawson had left a dose of heroin outside of Jessica’s home for her to retrieve. Early the next

morning, Jessica was found cross-legged on the floor, dead.

{¶5} In December 2016, the matter was scheduled for a jury trial. On the day of trial,

the parties presented the trial court with a “Petition to Enter Plea of Guilty.” Dawson petitioned

the trial court to accept his pleas of guilty to the two counts of the indictment. The petition

specified that the maximum penalty for the involuntary manslaughter charge was eleven years;

and the maximum penalty for the trafficking in heroin charge was twelve months. Although the

petition specifically stated that the State would recommend a three year sentence, the petition,

that Dawson executed, also stated:

I also understand that if I plead “Guilty” to the charges against me, the Court may

impose the same punishment as if I had plead “Not Guilty,” stood trial and had

been convicted by a jury.

{¶6} The trial court accepted the guilty pleas to both counts, entered a finding of guilt,

and passed the case for sentencing until such time that the pre-sentence investigation report could

be completed and reviewed. Pickaway App. No. 17CA8 3

{¶7} In March 2017, Dawson was sentenced. Although the State had recommended a

sentence of three years in the Ohio Department of Rehabilitation and Corrections, the trial court

sentenced Dawson to eleven years on the offense of involuntary manslaughter and twelve

months on the offense of trafficking in heroin. The sentences were ordered to run concurrent

with one another.

{¶8} Dawson appealed his conviction.

II. Assignment of Error

{¶9} Dawson assigns the following error for our review:

APPELLANT’S SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW.

III. Law and Analysis

A. Standard of Review

{¶10} The standard of review for reviewing felony sentences is set forth in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22.

Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence or may

vacate the sentence and remand the matter to the sentencing court if it clearly and convincingly

finds either:

(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; Pickaway App. No. 17CA8 4

(b) That the sentence is otherwise contrary to law.

B. Dawson’s Sentence is Not Clearly and Convincingly Contrary to Law

{¶11} Dawson claims that his sentence is clearly and convincingly contrary to law

because the “record does not support the trial court’s required consideration of R.C. 2929.11 and

R.C. 2929.12.” Dawson also claims that the “record does not support the court’s findings and

imposition of a maximum sentence.”

{¶12} Because maximum sentences do not require specific findings referenced in R.C.

2953.08(G)(2)(a), we focus on subpart (b) of that section to determine if the sentence is

otherwise contrary to law. See State v. Farnese, 4th Dist. Washington No. 15CA11, 2015–Ohio–

3533, ¶ 5; State v. Lister, 4th Dist. Pickaway No. 13CA15, 2014–Ohio–1405, ¶ 10. When we

analyze whether a sentence is contrary to law, “ ‘[t]he only specific guideline is that the sentence

must be within the statutory range [.]’ ” State v. Sims, 4th Dist. Gallia No. 10CA17, 2012–Ohio–

238, ¶ 11, quoting State v. Welch, 4th Dist. Washington No. 08CA29, 2009–Ohio–2655, ¶ 7,

quoting State v. Ross, 4th Dist. Adams No. 08CA872, 2009–Ohio–877, ¶ 10. The trial court

must also consider the overriding principles of R.C. 2929.11 and R.C. 2929.12 before imposing a

sentence.

{¶13} R.C. 2929.11(A) states:

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 and to punish

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 Pickaway App. No. 17CA8 5

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.

{¶14} R.C. 2929.12 also provides a non-exhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the offender

will commit future offenses. State v. Milner, 4th Dist. Washington No. 15CA3, 2015-Ohio-5005,

¶ 8, citing Lister, supra, at ¶ 15.

{¶15} Here, the trial court stated prior to sentencing Dawson:

THERE’S A PERSON WHOSE LIFE HAS BEEN LOST BECAUSE OF

YOUR CONDUCT. TO ME IT’S NEXT TO A MURDER CASE, OKAY.

THAT’S HOW SERIOUS THIS IS. I KNOW IT’S NOT MURDER, YOU’RE

NOT CHARGED WITH MURDER, OTHERWISE YOU WOULD BE

LOOKING AT BEING IN PRISON FOR LIFE. BUT YOU TOOK A LIFE.

AND HERE’S WHAT I READ, AND THIS JUST SETS ME OFF. THIS IS HER

FATHER, APPARENTLY TO THE RESPONDING OFFICER.

“UPON MY ARRIVAL I SPOKE WITH THE REPORTEE AND

FATHER OF THE VICTIM JAY LILLE [SIC]. MR. LILLE [SIC] ADVISED

THAT AROUND 5:39 A.M. ON TODAY’S DATE HE WENT TO THE

VICTIM’S ROOM TO CHECK ON HER AS HE DOES EVERY MORNING

PRIOR TO GETTING READY FOR WORK.” HERE’S A WORKING MAN

5:39 A.M. IN THE MORNING CHECKING ON HIS DAUGHTER. NOW

THAT’S RESPONSIBLE. “HE WAS UNABLE TO GET THE DOOR OPEN

AND HAD TO FORCE THE DOOR OPEN. MR. LILLE [SIC] FOUND THAT Pickaway App. No. 17CA8 6

THE VICTIM HAD USED A WALKING CANE TO KEEP THE DOOR SHUT.

MR. LILLE [SIC] SAW HIS DAUGHTER SITTING CROSS LEGGED ON

THE FLOOR WITH HER HEAD DOWN ON THE FLOOR. MR. LILLE [SIC]

ADVISED THAT HE ATTEMPTED TO MOVE HIS DAUGHTER AND FELT

THAT SHE WAS COLD. HE WAS UNABLE TO PICK HER UP SO HE

REQUESTED HIS BROTHER LOWELL LILLE [SIC] COME HELP HIM. MR.

LILLE AND HIS BROTHER PICKED THE VICTIM UP AND CARRIED HER

INTO THE LIVING ROOM. MR. LILLE [SIC] ADVISED THAT THE

VICTIM’S SEVEN-YEAR OLD AYDEN WAS STILL ASLEEP IN THE BED

AND MR. LILLE WAS WORRIED ABOUT HIM WAKING UP AND SEEING

THE VICTIM DECEASED ON THE FLOOR.”

NOW THAT’S PROBABLY ETCHED IN HIS MIND THE REST OF

HIS LIFE. PEOPLE SAY I’M SORRY, I DIDN’T MEAN FOR THAT TO

HAPPEN, WHAT DO YOU THINK IS GOING TO HAPPEN? DO YOU SEE

WHAT’S GOING ON IN ROSS COUNTY? THOSE PEOPLE DOWN THERE

ARE GETTING HEROIN THAT’S LACED WITH FENTANYL THAT’S

KILLING THEM LIKE FLIES. YOU PEOPLE, YOU JUST AMAZE ME. TO

BRING THIS POISON AROUND AND SPREAD IT AROUND AND GET

CAUGHT. YOU GOT CAUGHT. SO YOU’RE GOING TO PAY THE PRICE.

LET THE MESSAGE GO OUT, YOU DO THIS STUFF IN PICKAWAY

COUNTY AND YOU KILL THESE PEOPLE, YOU GO TO PRISON. YOU’VE

BEEN THERE BEFORE, OUR PATHS HAVE CROSSED BEFORE. Pickaway App. No. 17CA8 7

I READ THE PRESENTENCE INVESTIGATION. I SENT YOU TO

PRISON FOR NINE MONTHS BACK IN 2002 ON ASSAULT ON A PEACE

OFFICER. I REMEMBER THAT CASE. THAT’S ANOTHER CRIME THAT

SETS ME OFF, IS WHEN PEOPLE ASSAULT POLICE OFFICERS. AND

YOU DID THAT AND YOU DID NINE MONTHS FOR THAT. I WOULD

THINK AT THAT POINT IN TIME, MR. DAWSON, THAT YOU WOULD

THINK HEY, IF I’M GOING TO LIVE IN PICKAWAY COUNTY, MAYBE I

OUGHT TO STRAIGHTEN UP BECAUSE THIS JUDGE AIN’T GOING TO

PUT UP WITH IT, BUT YOU DIDN’T.

AND THEN YOU GOT ALL THESE POSSESSION OF DRUGS, AN F-

5, WHICH STARTED OUT AS AN F-5 IN MUNICIPAL COURT. THE LAW

DIRECTOR, FOR WHATEVER REASON DOWN THERE, DECIDED TO

REDUCE IT TO ATTEMPTED POSSESSION, AN M-1, AND GAVE YOU

120 DAYS IN JAIL AND SUSPENDED IT, $250.00 FINE AND COST,

TWELVE MONTHS PROBATION, NOT TO USE DRUGS OF ABUSE. THEN

YOU COME BACK IN ON POSSESSION OF DRUGS IN 2012,

APPARENTLY OUT OF LICKING COUNTY, SIX MONTHS

CONFINEMENT AT ODRC, ONE YEAR LICENSE SUSPENSION,

RECEIVED ORIENT CORRECTIONAL INSTITUTION ON 2/5/13; DRUG

PARAPHRENALIA 2007 IN MUNICIPAL COURT, $125.00 FINE, OL

SUSPENDED 12 MONTHS, GIVES YOU DRIVING PRIVILEGES, AND

THEN YOU HAD PETTY THEFT IN ’82 AS A JUVENILE, POSSESSION OF

MARIJUANA IN 1981 IN JUVENILE COURT. YOU JUST RANG THE BELL Pickaway App. No. 17CA8 8

TODAY MR. DAWSON. SO WHEN YOU GET OUT YOU CAN ELECT TO

LIVE HERE IN PICKAWAY COUNTY, OHIO, BUT IF YOU DO THIS KIND

OF STUFF AND YOU GET CAUGHT, DON’T COME IN AND SAY I’M

SORRY, BECAUSE THAT DOESN’T PAY THE PIPER.

{¶16} The trial court did not follow the State’s recommended sentence of three

years. Instead, the trial court sentenced Dawson to twelve months on the trafficking in

heroin charge and eleven years on the involuntary manslaughter charge. But, Dawson

executed the petition to enter guilty plea that specified that he understood that if he

pleaded guilty to the charges, the Court may impose the same punishment as if he had

pleaded not guilty, stood trial, and had been convicted by a jury.

{¶17} Moreover, the trial court’s sentence on both charges is within the statutory range

for sentencing; and the sentences were run concurrent to one another. Furthermore, in Dawson’s

sentencing entry, the trial court expressly stated that it considered “the criteria set forth in ORC

2929.11 and 2929.12 concerning the imposition of sentence”; and it also considered the

presentence investigation report. Although the trial court did not make specific findings

concerning the various factors in these statutes, it had no obligation to do so. State v. Taylor, 4th

Dist. Athens No. 08CA23, 2009–Ohio–3119, ¶ 13, citing State v. Woodruff, 4th Dist. Ross No.

07CA2972, 2008–Ohio–967, ¶ 16. Therefore, we reject Dawson’s argument.

{¶18} Dawson does not cite to any other failure of the trial court to comply with other

“applicable rules and statutes.” We, thus, find that Dawson’s maximum sentence is not clearly

and convincingly contrary to law. See State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015–

Ohio–3703, ¶ 47.

{¶19} Accordingly, we overrule Dawson’s sole assignment of error. Pickaway App. No. 17CA8 9

IV. Conclusion

{¶20} Having overruled Dawson’s assignment of error, we affirm the judgment of the

trial court.

JUDGMENT AFFIRMED. Pickaway App. No. 17CA8 10

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

The Court finds that reasonable grounds existed for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J. and McFarland, J.: Concur in Judgment and Opinion.

For the Court

By: ____________________________ Marie Hoover, Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.