[Cite as State v. Dickinson, 2023-Ohio-3068.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. CT2023-0008 : PARISS M. A. DICKINSON : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022-0607
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 30, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD L. WELCH CHRIS BRIGDON MUSKINGUM CO. PROSECUTOR 8138 Somerset Road JOHN CONNOR DEVER Thornville, OH 43076 27 North Fifth St., P.O. Box 189 Zanesville, OH 43702 [Cite as State v. Dickinson, 2023-Ohio-3068.]
Delaney, J.
{¶1} Appellant Pariss Dickinson appeals from the February 15, 2023 Entries of
the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
CR2022-0607: Aggravated vehicular homicide, failure to stop after an accident, and O.V.I.
{¶2} The following facts are adduced from the record of the change-of-plea
hearing on January 5, 2023 and the sentencing hearing on February 13, 2023.
{¶3} On October 28, 2022, appellant was on community control in a separate
case when she drank alcohol at her house and drove to Terry’s Tavern in Zanesville. At
the bar, she continued to drink and was eventually cut off by the bartender, who told
appellant she should not be driving. Appellant left Terry’s Tavern and drove to Putnam’s
Tavern in a 2008 Chrysler Aspen.
{¶4} Appellant is prohibited from entering Putnam’s Tavern, but she sat at the
bar and drank until she threw up twice. When recognized by the bartender, she was
immediately told to leave. Appellant left the bar and threw up again, outside.
{¶5} John Doe was standing outside the bar and appellant approached him,
trying to hug or kiss him. It appeared from a video that Doe rebuffed appellant. Whitney
Dickinson was with appellant throughout the evening; at some point, Dickinson
approached Doe and Doe put his hands up as if to indicate he didn’t want trouble.
{¶6} Appellant and Dickinson then got into appellant’s vehicle with appellant
driving. Appellant backed out of her parking spot, stopped the vehicle, and opened the
door attempting to leave the vehicle. The vehicle started moving in reverse and the
driver’s door struck appellant, knocking her to the ground. The vehicle continued in [Cite as State v. Dickinson, 2023-Ohio-3068.]
reverse and struck a parked car. Appellant then got up and got back into the driver’s
seat.
{¶7} At this point John Doe was directly in front of appellant’s vehicle, seemingly
trying to get her not to drive. Appellant accelerated and ran over John Doe.
{¶8} After running over John Doe, appellant accelerated and sped off, running
over parking blocks, into a yard across the alley from the Putnam Tavern parking lot.
Appellant stopped, got out of the vehicle, walked to the rear of the vehicle, got back into
the driver’s seat and fled the scene.
{¶9} Officers located appellant at her home shortly after the incident and she
denied any involvement.
{¶10} John Doe died later that evening as a result of his injuries.
{¶11} Appellant consented to a blood test which was analyzed and showed
appellant had a concentration of .185 percent by weight per unit volume of alcohol in her
whole blood at the time of driving.
{¶12} Appellant was charged by indictment as follows: aggravated vehicular
homicide pursuant to R.C. 2903.06(A)(1)(a) and R.C. 2903.06(B)(2)(a), a felony of the
second degree [Count I]; one count of aggravated vehicular homicide pursuant to R.C.
2903.06(A)(2)(a) and R.C. 2903.06(B)(3), a felony of the third degree [Count II]; one count
of failure to stop after an accident pursuant to R.C. 4549.02(A)(1)(a) and R.C.
4549.03(B)(3)(b), a felony of the second degree [Count III]; one count of failure to stop
after an accident pursuant to R.C. 4549.02(A)(1)(a) and R.C. 4549.03(B)(3)(a), a felony
of the third degree [Count IV]; one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(a) and
R.C. 4511.19(G)(1)(a), a misdemeanor of the first degree [Count V]; one count of O.V.I. [Cite as State v. Dickinson, 2023-Ohio-3068.]
pursuant to R.C. 4511.19(A)(1)(f) and R.C. 4511.19(G)(1)(a), a misdemeanor of the first
degree [Count VI]; and one count of criminal trespass pursuant to R.C. 2911.21(A)(1) and
R.C. 2911.21(D)(1), a misdemeanor of the fourth degree [Count VII]. Counts I through IV
were accompanied by a property forfeiture specification pursuant to R.C. 2941.1417(A).
{¶13} Appellant entered pleas of not guilty.
{¶14} On January 5, 2023, appellant appeared before the trial court and withdrew
her previously-entered pleas of not guilty and entered pleas of guilty to Counts I, IV, and
V. The guilty-plea form of January 5 notes the parties agreed appellee would make no
recommendation as to sentencing at the time of the guilty pleas, but both parties reserved
the right to argue at sentencing. Appellant agreed to forfeit a 2008 Chrysler Aspen and
appellee agreed to dismiss Counts II, III, VI, and VII.
{¶15} The trial court thereupon found appellant guilty upon Counts I, IV, and V
and ordered a pre-sentence investigation (P.S.I.).
{¶16} Appellee filed a sentencing memorandum on February 10, 2023. Appellant
filed a sentencing memorandum in February 13, 2023.
{¶17} On February 13, 2023, appellant appeared before the trial court for
sentencing. The trial court imposed a total aggregate indefinite prison term of 9 to 13
years as follows: on Count I, a mandatory term of 8 years with an indefinite term of 12
years; on Count IV, a stated prison term of 12 months; and on Count V, a term of 6 months
of local incarceration. Counts I and V were ordered to be served concurrently with each
other, and Count IV was ordered to be served consecutively to Counts I and V. [Cite as State v. Dickinson, 2023-Ohio-3068.]
CR2022-0141: Community-control violation
{¶18} At the sentencing hearing on February 13, 2023, appellant also pleaded
guilty to a violation of community control in a separate case, Muskingum County Court of
Common Pleas case no. CR2022-0141. The trial court imposed a prison term of 12
months, to be served consecutively with the sentence in the instant case. Appellant did
not appeal from the community-control case and that record is not before us, although
the community-control violation was addressed at sentencing in the instant case.
{¶19} Appellant now appeals from the trial court’s judgment entries of conviction
and sentence.
{¶20} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶21} “I. SHOULD THIS HONORABLE COURT SHOULD VACATE THE TRIAL
COURT’S DECISION TO IMPOSE CONSECUTIVE SENTENCES IN CASES 22CR607
AND 22CR141 BECAUSE THE CONSECUTIVE SENTENCE WAS IN
CONTRAVENTION OF STATUTE.”
{¶22} “II. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH IN O.R.C. 2929.11(B) AND FACTORS TO BE
CONSIDERED IN O.R.C. 2929.12(A)(1)(H).”
ANALYSIS
I.
{¶23} In her first assignment of error, appellant argues the trial court erred in
running her sentence on the community-control violation [CR2022-0141] consecutive with
the prison term in the instant case. We disagree. [Cite as State v. Dickinson, 2023-Ohio-3068.]
{¶24} The record of the community-control case is not before us, and appellant
did not appeal from CR2022-0141. We have only the record of the sentencing hearing
and know nothing about the underlying offense(s), the resulting sentence of community
control, the nature of the violation, or whether appellant was advised at sentencing in
CR2022-0141 that the sentence for a violation of community control could run
consecutively to a sentence upon a new offense. We also note the trial court referred to
two separate P.S.I.s, neither of which are in the record before us.
{¶25} Appellant’s arguments regarding CR2022-0141 are not properly before the
Court because appellant has not appealed from that case. Further, in reviewing assigned
error on appeal we are confined to the record that was before the trial court as defined in
App.R. 9(A). This rule provides that the record on appeal consists of “[t]he original papers
and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including
exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the
trial court.” The record of the instant case does not include the record of CR2022-0141.
{¶26} App.R. 9(B) also provides in part “ * * *[w]hen portions of the transcript
necessary for resolution of assigned errors are omitted from the record, the reviewing
court has nothing to pass upon and thus, as to those assigned errors, the court has no
choice but to presume the validity of the lower court’s proceedings, and affirm.”
{¶27} In Knapp v. Edwards Laboratories the Ohio Supreme Court stated: “The
duty to provide a transcript for appellate review falls upon the appellant. This is necessarily
so because an appellant bears the burden of showing error by reference to matters in
the record.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). [Cite as State v. Dickinson, 2023-Ohio-3068.]
{¶28} Appellant has not provided the record of CR2022-0141, nor has she
appealed from that case. We must therefore presume the regularity of the trial court’s
proceeding at sentencing. See, State v. Ellis, 5th Dist. No. 11-COA-015, 2011-Ohio-
5646, *2.
{¶29} Appellant’s first assignment of error is overruled.
II.
{¶30} In her second assignment of error, appellant argues her sentence in the
instant case is disproportionate and therefore inconsistent with the principles and
purposes of sentencing set forth in R.C. 2929.11 and R.C. 2929.12. We disagree.
{¶31} 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. Subsection
(G)(2) sets forth this court's standard of review:
(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 [Cite as State v. Dickinson, 2023-Ohio-3068.]
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.
{¶32} “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. “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. Padilla, 5th Dist. Tuscarawas No. 2022
AP 08 0023, 2023-Ohio-1995, ¶ 13, quoting State v. Dinka, 12th Dist. Warren Nos.
CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶33} 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 [Cite as State v. Dickinson, 2023-Ohio-3068.]
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.
{¶34} 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.’ ” 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. [Cite as State v. Dickinson, 2023-Ohio-3068.]
{¶35} In the instant case, appellant's sentence is within the statutory range for
felonies of the second degree. R.C. 2929.14(A)(2)(a). Appellant argues her sentence is
contrary to law, however, because her sentence is longer than that of other appellants in
the Fifth District convicted of aggravated vehicular homicide.
{¶36} A felony sentence should be proportionate to the severity of the offense
committed so as not to “shock the sense of justice in the community.” State v. Chaffin, 30
Ohio St.2d 13, 17, 282 N.E.2d 46 (1972); R.C. 2929.11(B). A defendant alleging
disproportionality in felony sentencing has the burden of producing evidence to “indicate
that his sentence is directly disproportionate to sentences given to other offenders with
similar records who have committed these offenses * * *.” State v. Ewert, 5th Dist.
Muskingum No. CT2012–0002, 2012–Ohio–2671, 2012 WL 2196326, ¶ 33, citing State
v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005–Ohio–510, 2005 WL 315370, ¶ 81.
{¶37} At sentencing in the instant case, the trial court noted the instant offenses
occurred almost exactly three months after appellant was placed on community control.
T. Sentencing, 14. The court noted appellant should have realized at that point her life
had changed and she must do something about it. Instead, she was drunk and behind
the wheel, and killed an innocent man. She created a substantial risk to bystanders in
recklessly and drunkenly fleeing the crime scene.
{¶38} The trial court specifically found consecutive sentences are necessary to
protect the public or to punish appellant, and are not disproportionate to the seriousness
of appellant’s conduct or to the danger she posed to the public. Further, the trial court
found one or more of the offenses were committed while appellant was on community
control, as part of a course of criminal conduct, and the harm caused by two or more of [Cite as State v. Dickinson, 2023-Ohio-3068.]
the multiple offenses was so great or unusual that no single prison term for any of the
offenses committed adequately reflects the seriousness of appellant’s conduct. T.
Sentencing, 17-18.
{¶39} In support of her argument regarding proportionality, appellant cites other
cases from this District involving convictions of aggravated vehicular homicide. In the
instant case, appellant was on community control when she got drunk, trespassed in a
bar she wasn’t allowed to be in, then killed a patron of the bar in the parking lot with her
vehicle. She fled the scene and when found at home by police, told them she was home
before her community-control curfew but otherwise denied involvement. None of the
cases cited by appellant are factually similar, and it is not evident what sentencing factors
were significant in the other cases. Our review of these cases indicates their only similarity
to the case at bar is the fact that they arose in the same District and involved aggravated
vehicular homicide. See, State v. Rosencranz, 5th Dist. No. 2019AP010002, 2019-Ohio-
2392, 138 N.E.3d 643, ¶ 23. Appellant summarily argues her sentence is disproportionate
to those of these (purportedly) similarly-situated individuals. Id. Appellant has failed to
provide any evidence her sentence is constitutionally disproportionate. Id.
{¶40} We find no error by the trial court with regard to proportionality.
R.C. 2929.11 and R.C. 2929.12
{¶41} The trial court cited the applicable statutes and made a record supporting
its findings, supra. R.C. 2929.11 governs the overriding purposes of felony sentencing
and states the following in pertinent part:
(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The [Cite as State v. Dickinson, 2023-Ohio-3068.]
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.
{¶42} R.C. 2929.12(A) governs factors to consider in felony sentencing and states
the following in pertinent part:
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 [Cite as State v. Dickinson, 2023-Ohio-3068.]
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.
{¶43} 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 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.
{¶44} 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 [Cite as State v. Dickinson, 2023-Ohio-3068.]
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.
{¶45} Appellant's sentence is neither excessive nor shocking. See, State v.
Cottrell, 5th Dist. Muskingum No. CT2022-0061, 2023-Ohio-1391. 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.
{¶46} Upon review, we find that the trial court's sentencing complies with
applicable rules and sentencing statutes. While appellant may disagree with the weight
given to these factors by the trial judge, her sentence was within the applicable statutory
range and 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. Appellant's second
assignment of error is overruled. [Cite as State v. Dickinson, 2023-Ohio-3068.]
CONCLUSION
{¶47} Appellant’s two assignments of error are overruled and the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.