State v. Grannon

2022 Ohio 220

• Court: Ohio Court of Appeals
• Decided: January 27, 2022
• Docket: CT2021-0028
• Status: Published

Opinion

[Cite as State v. Grannon, 2022-Ohio-220.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. CT2021-0028 JASON M. GRANNON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2021-0004

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 27, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH JAMES S. SWEENEY Prosecuting Attorney James Sweeney Law, LLC Muskingum County, Ohio 285 South Liberty Street Powell, Ohio 43065 TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43701 Hoffman, J. {¶1} Defendant-appellant Jason M. Grannon appeals the judgment entered by

the Muskingum County Common Pleas Court convicting him following his pleas of guilty

to two counts of vehicular assault (R.C. 2903.08(A)(2)(b)) and sentencing him to eighteen

months incarceration on each count, to be served consecutively. Plaintiff-appellee is the

state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 8, 2020, Appellant drove his pickup truck left of center on State

Route 93 in Muskingum County, striking two vehicles. The driver of the first vehicle

Appellant struck sustained a fractured ankle, as well as other minor injuries. The driver

of the second vehicle struck by Appellant sustained broken ribs and other minor injuries.

A witness to the crash told police Appellant had been swerving the entire time she traveled

behind him prior to the crash. Appellant had blood drawn, which showed

methamphetamine, amphetamine, cocaine metabolite, and fentanyl in his system at the

time of the crash.

{¶3} On January 14, 2021, the Guernsey County Grand Jury indicted Appellant

on two counts of aggravated vehicular assault (R.C. 2903.08(A)(1)(a)), felonies of the

second degree, and two counts of operating a motor vehicle while intoxicated (R. C.

4511.19(A)(1)(a)), misdemeanors of the first degree.

{¶4} Appellant appeared in the Muskingum County Common Pleas Court on

March 22, 2021, for a change in plea hearing. The State amended the two charges of

aggravated vehicular assault, second degree felonies, to two counts of vehicular assault,

fourth degree felonies. The State dismissed the charges of operating a motor vehicle

while intoxicated. {¶5} The trial court held a sentencing hearing on April 28, 2021. The court

sentenced Appellant to 18 months incarceration on each count, to be served

consecutively, for an aggregate term of imprisonment of 36 months.

{¶6} It is from the April 29, 2021 judgment of the trial court Appellant prosecutes

his appeal, assigning as error:

I. THE TRIAL COURT’S MAXIMUM SENTENCE ON EACH COUNT

WAS NOT SUPPORTED BY THE RECORD AND WAS CONTRARY TO

LAW.

II. THE TRIAL COURT ERRED WHEN IT IMPOSED

CONSECUTIVE SENTENCES ON THE APPELLANT.

I.

{¶7} In his first assignment of error, Appellant argues the trial court’s imposition

of maximum sentences on each count was not supported by the record, and was therefore

contrary to law.

{¶8} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,

citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.

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

and remand for sentencing where we clearly and convincingly find either the record 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(l), or the sentence is otherwise contrary to law. Id.,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

{¶9} When sentencing a defendant, the trial court must consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-

Ohio-5025, ¶ 7.

{¶10} “The 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.” R.C. 2929.11(A). To achieve these 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. Id. Further, the sentence imposed shall be

“commensurate with and not demeaning to the seriousness of the offender's conduct and

its impact on the victim, and consistent with sentences imposed for similar crimes by

similar offenders.” R.C. § 2929.11(B).

{¶11} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion, but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12. {¶12} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh

the evidence in the record and substitute our own judgment for that of the trial court to

determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.

2929.12. State v. Jones, 1163 Ohio St.3d 242, 69 N.E.3d 649, 2020-Ohio-6729, ¶ 42.

This Court is without authority to disturb Appellant's sentence absent a finding by clear

and convincing evidence the record does not support the trial court's findings under R.C.

2929.11 and R.C. 2929.12. Instead, we may only determine if the sentence is contrary to

{¶13} 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. Pettorini, 5th Dist. Licking No. 2020 CA

00057, 2021-Ohio-1512, 2021 WL 1714216, ¶¶ 14-16 quoting State v. Dinka, 12th Dist.

Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.

{¶14} Appellant does not argue his sentence was outside the sentencing range

permitted by law, but rather argues the trial court erred in sentencing him to the maximum

sentence based on its weighing of the factors set forth in R.C. 2929.11 and R.C. 2929.12.

The trial court stated in its sentencing entry it had considered the purposes and principles

of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors

set forth in R.C. 2929.12, as well as the record, all statements including any victim impact

statement, and the plea recommendation. The record further reflects the trial court

received and considered a presentence investigation report. The trial court stated at the

hearing the victims’ letters were sent to the court, along with the picture of one of the victim’s vehicle. The trial court noted its surprised anyone walked away from the accident,

as well as the fact one of the victims was told if anyone had been in the passenger seat

of her vehicle, the passenger would have died. The court noted not only was Appellant

using drugs at the time of the accident, when he was arrested some time later he also

tested positive for illegal drugs. The court also stated Appellant had three prior felonies,

including a conviction of theft of a motor vehicle for which he was serving a sentence at

the time of the hearing. The victim impact statement, which was part of the presentence

investigation and summarized by the prosecutor at the sentencing hearing, demonstrated

ongoing physical, emotional, and psychological damage to one of the victims as a result

of the accident.

{¶15} Based on the foregoing, we find the trial court considered the purposes and

principles of sentencing (R.C. 2929.11) as well as the factors the court must consider

when determining an appropriate sentence. (R.C. 2929.12). Although not required to do

so, the trial court set forth its reasons for the sentence on the record. While Appellant may

disagree with the weight given to these factors by the trial judge, Appellant's sentence

was within the applicable statutory range, and we find no basis for concluding the

sentence is contrary to law.

{¶16} The first assignment of error is overruled.

II.

{¶17} In his second assignment of error, Appellant argues the record does not

support the trial court’s imposition of consecutive sentences.

{¶18} R.C. 2929.14(C)(4) provides: (4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶19} In the instant case, the trial court found at the sentencing hearing based on

Appellant’s criminal history, consecutive sentences are necessary to protect the public

from future crimes, and consecutive sentences are not disproportionate to the seriousness of the conduct and the danger posed to the public. At the hearing and in the

sentencing entry, the trial court stated it based its decision on the fact Appellant had three

prior felony convictions, there were separate victims, and Appellant continued to use

drugs and commit criminal offenses after this incident. Based on the record before this

court, we do not clearly and convincingly find the trial court's findings in support of its

imposition of consecutive sentences are not supported by the record.

{¶20} The second assignment of error is overruled.

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

By: Hoffman, J. Wise, Earle, P.J. and Delaney, J. concur