State v. Duncan

2019 Ohio 2436

• Court: Ohio Court of Appeals
• Decided: June 20, 2019
• Docket: 107397
• Status: Published

Opinion

[Cite as State v. Duncan, 2019-Ohio-2436.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107393 v. :

HERMAN R. DUNCAN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 20, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-624839-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Owen M. Patton, Assistant Prosecuting Attorney, for appellee.

Thomas A. Rein, for appellant.

RAYMOND C. HEADEN, J.:

Defendant-appellant Herman R. Duncan (“Duncan”) appeals from

his sentence. Factual and Procedural History

The charges in this case stem from a January 5, 2018 incident at a bar

in Bedford, Ohio. Duncan was dancing with two women when a group of men came

up to them on the dance floor and a fight broke out. Duncan was beaten by these

men. He left the bar, went to his car to retrieve a gun, and returned to fire a shot

through the window of the bar toward the dance floor.

On January 16, 2018, Duncan was indicted on two counts of felonious

assault and one count of having weapons while under disability. Both felonious

assault counts carried repeat violent offender specifications and multiple firearm

specifications. Duncan pleaded not guilty to the indictment.

On May 2, 2018, a plea hearing was held. After the trial court engaged

Duncan in a plea colloquy pursuant to Crim.R. 11, the court accepted Duncan’s guilty

plea to an amended count of felonious assault with a three-year firearm

specification. The remaining counts and specifications were dismissed, and Duncan

was referred to the probation department for a presentence investigation and report

and to the psychiatric department for a mitigation report.

On May 30, 2018, the trial court held a sentencing hearing. The

prosecutor, defense counsel, and Duncan each addressed the court. The court

sentenced Duncan to an aggregate prison term of ten years, made up of seven years

on the felonious assault charge and three years on the firearm specification. Duncan

appeals his sentence, presenting one assignment of error for our review. Law and Analysis

In his sole assignment of error, Duncan argues that the record clearly

and convincingly fails to support the imposition of more than a minimum sentence

upon him.

Pursuant to R.C. 2953.08(G)(2), a reviewing court may increase,

reduce, or otherwise modify a felony sentence if it clearly and convincingly finds that

either (a) the record does not support certain required statutory findings or, (b) the

sentence is otherwise contrary to law. A sentence is contrary to law if the court fails

to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11

and the sentencing factors set forth in R.C. 2929.12.

R.C. 2929.11(A) establishes that the overriding purposes of felony

sentencing are to protect the public from future crime by the offender and to punish

the offender using the minimum sanctions that the court determines will accomplish

those purposes. While sentencing courts have discretion to determine how best to

comply with these purposes, R.C. 2929.12 provides a list of factors that courts must

consider in felony sentencing. Courts must carefully consider these purposes and

factors, but “it is not necessary for the trial court to articulate its consideration of

each individual factor as long as it is evident from the record that the principles of

sentencing were considered.” State v. Gonzalez, 8th Dist. Cuyahoga No. 102579,

2015-Ohio-4765, ¶ 6, citing State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-

Ohio-1942, ¶ 10. A review of the record in this case shows that the trial court

considered the relevant factors in R.C. 2929.12 and the purposes of felony

sentencing in R.C. 2929.11. At sentencing, the court discussed the circumstances of

the offense and noted that when Duncan fired his gun into the bar, he was not

defending himself or others and the initial fight had ended. The court also discussed

Duncan’s criminal history, including his apparent disregard for the victims in prior

cases. Further, the sentencing journal entry states that “the court considered all

required factors of the law” and “finds that prison is consistent with the purpose of

R.C. 2929.11.” Duncan argues that the trial court did not reference R.C. 2929.12 at

the sentencing hearing or in the corresponding journal entry. Such a reference is

not necessary.

Even where a trial court does not reference its consideration of R.C. 2929.11 and 2929.12 at the sentencing hearing or in its sentencing journal entry, this court has held that it can be presumed that the trial court considered the relevant sentencing factors under R.C. 2929.11 and 2929.12 unless the defendant affirmatively shows otherwise.

State v. Jung, 2018-Ohio-1514, 111 N.E.3d 54, ¶ 16 (8th Dist.), citing State v. Jones,

8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. See also State v. Esner, 8th Dist.

Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 10.

Duncan more specifically argues that the court failed to consider that

he acted under strong provocation and there are substantial grounds to mitigate his

conduct, pursuant to R.C. 2929.12(C)(2) and (4). The record, however, clearly

indicates that the court considered the factors Duncan argues mitigate his conduct.

The fact that the trial court disagreed with his or his counsel’s theory that he was acting under strong provocation and was attempting to protect others does not

undermine the trial court’s consideration of those factors.

Duncan pleaded guilty to felonious assault, in violation of

R.C. 2903.11(A)(2), a felony of the second degree. R.C. 2929.14(A)(2)(a) provides

that the sentencing range for felonies of the second degree is two to eight years.

Here, the court’s seven-year sentence on the felony was within the statutory range.

Because Duncan’s sentence is within the statutory range and we do

not clearly and convincingly find that the record does not support the relevant

findings, we affirm Duncan’s sentence.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending is terminated. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

RAYMOND C. HEADEN, JUDGE

EILEEN T. GALLAGHER, P.J., and MICHELLE J. SHEEHAN, J., CONCUR