[Cite as State v. Evers, 2021-Ohio-4227.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-27 : v. : Trial Court Case No. 2020-CR-610 : DANIEL EVERS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 3rd day of December, 2021.
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
JEFFREY R. MCQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
TUCKER, P.J. -2-
{¶ 1} Defendant-appellant Daniel Evers appeals from his conviction following a
guilty plea to aggravated possession of drugs. For the reasons set forth below, we
affirm.
I. Facts and Course of the Proceedings
{¶ 2} On October 26, 2020, a Clark County grand jury returned an indictment
charging Evers with one count of aggravated possession of drugs in violation of R.C.
2925.11(A), a felony of the third degree. The charge arose after a deputy sheriff made
a traffic stop of a vehicle in which Evers was a passenger and discovered that Evers had
an active arrest warrant. As Evers exited the vehicle, the deputy observed a meth pipe
between where Evers had been sitting and the center console. During a search incident
to arrest, the deputy found a baggie in Evers’s pocket containing what was later
determined to be 4.45 grams of methamphetamine.
{¶ 3} On March 23, 2021, Evers appeared for a plea hearing. The parties advised
the trial court that they had arrived at an agreement whereby Evers would plead guilty to
the indicted charge and, in exchange, the State would dismiss a separate case in which
Evers had been charged with felony failure to comply. The State also recommended
community control sanctions with attendant drug treatment. Following an appropriate
Crim.R. 11 plea colloquy, the trial court accepted Evers’s guilty plea. The trial court
ordered a presentence investigation (PSI) report and set a date for sentencing.
{¶ 4} The sentencing hearing was conducted on April 7, 2021. During the
hearing, the trial court reviewed the PSI and noted that Evers had a “pretty lengthy -3-
criminal record.” Evers’s criminal record dated back to 1997 when he was convicted of
operating a vehicle while under the influence. In 1998, Evers was convicted of
possession of cocaine, and in 2002, he was convicted of operating a vehicle without a
license. He was also convicted of driving under a suspension six times in a span of 15
years. Evers was convicted of aggravated possession of drugs in 2016 and receiving
stolen property in 2018. Finally, he was convicted of the instant felony offense and
indicted on the dismissed charge of felony failure to comply. After reviewing the PSI on
the record, the trial court stated, “I noticed in looking at the disposition on all of these
cases, that, miraculously, you have not served one day in jail.” The court later stated,
“Your luck is going to run out today, Mr. Evers.” The court proceeded to sentence Evers
to a prison term of 30 months
{¶ 5} Evers appeals.
II. Analysis
{¶ 6} Evers’s sole assignment of error states the following:
APPELLANT’S SENTENCE OF 30 MONTHS INCARCERATION IS
CLEARLY AND CONVINCINGLY UNSUPPORTED BY THE RECORD1
{¶ 7} Evers asserts that the trial court erred in sentencing.
{¶ 8} We review felony sentences under the standard of review 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,
¶ 9. That statute provides an appellate court may increase, reduce, or otherwise modify
1 Evers’s appellate brief fails to conform to App.R. 19(A), as it is single-spaced. Thus, counsel is admonished to comply with the Rules of Appellate Procedure in future filings. -4-
a sentence, or vacate a sentence and remand for resentencing, if it clearly and
convincingly that the record does not support the sentencing court's findings under certain
statutory provisions not at issue in this case or that the sentence is otherwise contrary to
law.
{¶ 9} Evers first claims the sentence is contrary to law because the trial court did
not consider the purposes of felony sentencing as set forth in R.C. 2929.11 or the
seriousness and recidivism factors of R.C. 2929.12. In support, he cites State v. Wiley,
180 Ohio App.3d 475, 2009-Ohio-109, 905 N.E.2d 1273, ¶ 13 (4th Dist.), in which the
court of appeals held a defendant’s sentence was “clearly and convincingly contrary to
law” because the trial court failed to properly consider R.C. 2929.12.
{¶ 10} However, since Wiley was decided, the Ohio Supreme Court has decided
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. In that case, the
Court noted that R.C. 2953.08(G)(2)(a) allows modification or vacation of a sentence if
an appellate court clearly and convincingly determines the record does not support the
sentencing court's findings under certain specific statutory provisions. Jones at ¶ 28.
The Court went on to state that “R.C. 2929.11 and R.C. 2929.12 are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a).” Id. Thus, the Court concluded that
R.C. 2953.08(G)(2)(a) does not allow the modification or vacation of a sentence on the
basis that it is not supported under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 29.
{¶ 11} Jones also noted that an appellate court may modify or vacate a sentence
if it is “otherwise contrary to law.” Id. at ¶ 32, quoting R.C. 2953.08(G)(2)(b). “But the
Supreme Court ruled that an appellate court may not vacate or modify a sentence based
upon the conclusion the sentence is contrary to law because it ‘is not supported under -5-
R.C. 2929.11 and R.C. 2929.12.’ ” State v. Kelly, 2d Dist. Clark No. 2020-CA-8, 2021-
Ohio-325, ¶ 87, quoting Jones at ¶ 39.
{¶ 12} Evers entered a guilty plea, which the trial court accepted after finding it was
made in accordance with Crim.R. 11. At the sentencing hearing, the judge heard from
the prosecutor on behalf of the State, from defense counsel on behalf of Evers, and from
Evers. The court also noted that it had considered the record and the PSI. The record
reflects that the trial court gave due consideration to the relevant statutory factors. The
court considered the purposes and principles of felony sentencing under R.C. 2929.11
and balanced the seriousness and recidivism factors under R.C. 2929.12. In addition,
Evers’s sentence of 30 months in prison was within the statutory range for a third-degree
felony offense. R.C. 2929.14(A)(3)(b). Also, the record reveals that the trial court
properly advised Evers regarding post-release control. Accordingly, we conclude
Evers’s sentence is not contrary to law.
{¶ 13} Evers next asserts that the trial court “impermissibly imposed a harsher
sentence based upon its interpretation that [Evers] had received more lenient sentences
for past convictions. Given the fact that the court did not preside over the prior
convictions, it had no basis for determining that [Evers] received inappropriately lenient
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[Cite as State v. Evers, 2021-Ohio-4227.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-27 : v. : Trial Court Case No. 2020-CR-610 : DANIEL EVERS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 3rd day of December, 2021.
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
JEFFREY R. MCQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
TUCKER, P.J. -2-
{¶ 1} Defendant-appellant Daniel Evers appeals from his conviction following a
guilty plea to aggravated possession of drugs. For the reasons set forth below, we
affirm.
I. Facts and Course of the Proceedings
{¶ 2} On October 26, 2020, a Clark County grand jury returned an indictment
charging Evers with one count of aggravated possession of drugs in violation of R.C.
2925.11(A), a felony of the third degree. The charge arose after a deputy sheriff made
a traffic stop of a vehicle in which Evers was a passenger and discovered that Evers had
an active arrest warrant. As Evers exited the vehicle, the deputy observed a meth pipe
between where Evers had been sitting and the center console. During a search incident
to arrest, the deputy found a baggie in Evers’s pocket containing what was later
determined to be 4.45 grams of methamphetamine.
{¶ 3} On March 23, 2021, Evers appeared for a plea hearing. The parties advised
the trial court that they had arrived at an agreement whereby Evers would plead guilty to
the indicted charge and, in exchange, the State would dismiss a separate case in which
Evers had been charged with felony failure to comply. The State also recommended
community control sanctions with attendant drug treatment. Following an appropriate
Crim.R. 11 plea colloquy, the trial court accepted Evers’s guilty plea. The trial court
ordered a presentence investigation (PSI) report and set a date for sentencing.
{¶ 4} The sentencing hearing was conducted on April 7, 2021. During the
hearing, the trial court reviewed the PSI and noted that Evers had a “pretty lengthy -3-
criminal record.” Evers’s criminal record dated back to 1997 when he was convicted of
operating a vehicle while under the influence. In 1998, Evers was convicted of
possession of cocaine, and in 2002, he was convicted of operating a vehicle without a
license. He was also convicted of driving under a suspension six times in a span of 15
years. Evers was convicted of aggravated possession of drugs in 2016 and receiving
stolen property in 2018. Finally, he was convicted of the instant felony offense and
indicted on the dismissed charge of felony failure to comply. After reviewing the PSI on
the record, the trial court stated, “I noticed in looking at the disposition on all of these
cases, that, miraculously, you have not served one day in jail.” The court later stated,
“Your luck is going to run out today, Mr. Evers.” The court proceeded to sentence Evers
to a prison term of 30 months
{¶ 5} Evers appeals.
II. Analysis
{¶ 6} Evers’s sole assignment of error states the following:
APPELLANT’S SENTENCE OF 30 MONTHS INCARCERATION IS
CLEARLY AND CONVINCINGLY UNSUPPORTED BY THE RECORD1
{¶ 7} Evers asserts that the trial court erred in sentencing.
{¶ 8} We review felony sentences under the standard of review 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,
¶ 9. That statute provides an appellate court may increase, reduce, or otherwise modify
1 Evers’s appellate brief fails to conform to App.R. 19(A), as it is single-spaced. Thus, counsel is admonished to comply with the Rules of Appellate Procedure in future filings. -4-
a sentence, or vacate a sentence and remand for resentencing, if it clearly and
convincingly that the record does not support the sentencing court's findings under certain
statutory provisions not at issue in this case or that the sentence is otherwise contrary to
law.
{¶ 9} Evers first claims the sentence is contrary to law because the trial court did
not consider the purposes of felony sentencing as set forth in R.C. 2929.11 or the
seriousness and recidivism factors of R.C. 2929.12. In support, he cites State v. Wiley,
180 Ohio App.3d 475, 2009-Ohio-109, 905 N.E.2d 1273, ¶ 13 (4th Dist.), in which the
court of appeals held a defendant’s sentence was “clearly and convincingly contrary to
law” because the trial court failed to properly consider R.C. 2929.12.
{¶ 10} However, since Wiley was decided, the Ohio Supreme Court has decided
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. In that case, the
Court noted that R.C. 2953.08(G)(2)(a) allows modification or vacation of a sentence if
an appellate court clearly and convincingly determines the record does not support the
sentencing court's findings under certain specific statutory provisions. Jones at ¶ 28.
The Court went on to state that “R.C. 2929.11 and R.C. 2929.12 are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a).” Id. Thus, the Court concluded that
R.C. 2953.08(G)(2)(a) does not allow the modification or vacation of a sentence on the
basis that it is not supported under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 29.
{¶ 11} Jones also noted that an appellate court may modify or vacate a sentence
if it is “otherwise contrary to law.” Id. at ¶ 32, quoting R.C. 2953.08(G)(2)(b). “But the
Supreme Court ruled that an appellate court may not vacate or modify a sentence based
upon the conclusion the sentence is contrary to law because it ‘is not supported under -5-
R.C. 2929.11 and R.C. 2929.12.’ ” State v. Kelly, 2d Dist. Clark No. 2020-CA-8, 2021-
Ohio-325, ¶ 87, quoting Jones at ¶ 39.
{¶ 12} Evers entered a guilty plea, which the trial court accepted after finding it was
made in accordance with Crim.R. 11. At the sentencing hearing, the judge heard from
the prosecutor on behalf of the State, from defense counsel on behalf of Evers, and from
Evers. The court also noted that it had considered the record and the PSI. The record
reflects that the trial court gave due consideration to the relevant statutory factors. The
court considered the purposes and principles of felony sentencing under R.C. 2929.11
and balanced the seriousness and recidivism factors under R.C. 2929.12. In addition,
Evers’s sentence of 30 months in prison was within the statutory range for a third-degree
felony offense. R.C. 2929.14(A)(3)(b). Also, the record reveals that the trial court
properly advised Evers regarding post-release control. Accordingly, we conclude
Evers’s sentence is not contrary to law.
{¶ 13} Evers next asserts that the trial court “impermissibly imposed a harsher
sentence based upon its interpretation that [Evers] had received more lenient sentences
for past convictions. Given the fact that the court did not preside over the prior
convictions, it had no basis for determining that [Evers] received inappropriately lenient
sentences.” In support, he cites the above-quoted passages from the sentencing
hearing.
{¶ 14} We have reviewed the record and cannot agree with Evers’s assertion.
Nothing in the transcript leads us to conclude that the trial court was opining as to the
propriety of any of the prior sanctions imposed or that the court’s sentence was improperly
based upon its surmised finding of leniency regarding any of the prior sentences. -6-
Indeed, a reading of the entire transcript demonstrates that the trial court was merely
noting that Evers had a lengthy criminal history, but had never been sentenced to a term
of incarceration despite having at least one prior felony. In our view, the court was
addressing the recidivism factors of R.C. 2929.12(D) by noting Evers had not been
rehabilitated and had “not responded favorably to previously imposed criminal sanctions.”
R.C. 2929.12(D)(3). Thus, we find nothing that would lead us to conclude the trial court
acted improperly.
{¶ 15} The sole assignment of error is overruled.
III. Conclusion
{¶ 16} The judgment of the trial court is affirmed.
DONOVAN, J. and EPLEY, J., concur.
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Ian A. Richardson Jeffrey R. McQuiston Hon. Douglas M. Rastatter