State v. Hartness

2025 Ohio 4584

• Court: Ohio Court of Appeals
• Decided: October 2, 2025
• Docket: 114241
• Status: Published

Opinion

[Cite as State v. Hartness, 2025-Ohio-4584.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114241 v. :

KENNETH HARTNESS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 2, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-689560-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Dominic Neville, Assistant Prosecuting Attorney, for appellee.

Jonathan N. Garver, for appellant.

SEAN C. GALLAGHER, J.:

Kenneth Hartness appeals his conviction for felonious assault,

abduction, and strangulation of his relative, and the resulting 12.5- to 16.5-year

aggregate term of imprisonment. For the following reasons, we affirm. According to the victim, Hartness struggles with mental-health

issues and has a history of aggression toward family members that has left them

terrified. On the day of the incident leading to the current conviction, Hartness

attacked and severely beat the victim in their shared home. During the attack,

Hartness posted comments to social media expressing suicidal ideations. When

police officers responded, they found the victim with such extensive injuries that

they believed she had been shot in the head. The victim sustained open wounds

requiring over 100 staples or sutures and surgery.

Hartness pleaded guilty to felonious assault, in violation of

R.C. 2903.11(A)(1); abduction, in violation of R.C. 2905.02(A)(2); strangulation,

in violation of R.C. 2903.18(B)(3); and domestic violence, in violation of

R.C. 2919.25(A). The domestic-violence count merged into the strangulation

conviction. The trial court sentenced Hartness to a stated minimum prison term

of eight years for the felonious assault, a definite three years for the abduction, and

18 months for the strangulation — all of which were imposed to be served

consecutively resulting in the 16.5-year maximum term. The trial court also

imposed a $5,000 fine. At the close of the sentencing hearing, the trial court

denied Hartness’s request for appointed appellate counsel, stating that Hartness

“can hire his own lawyer if he wants” to appeal the conviction.1 Tr. 35:7-18.

1 We cannot condone the deprivation of a defendant’s constitutional right to appellate counsel. All defendants are entitled to court-appointed counsel once declared indigent. Nothing in the record demonstrates that Hartness was denied counsel based on his financial means at the time of sentencing. Nonetheless, any deprivation of constitutional rights did not prejudice Hartness in this particular case. He timely Hartness retained appellate counsel to file this appeal. Retained

counsel filed a motion to withdraw, citing Anders v. California, 386 U.S. 738

(1967), and his inability to present any meritorious argument. This panel granted

the motion to withdraw but on different grounds, noting that adherence to the

procedure under Anders was unnecessary because the attorney was retained and

merely stating that arguments would be without merit was insufficient to warrant

dismissal of the appeal. See, e.g., State v. Davis, 2017-Ohio-7713, ¶ 8 (8th Dist.)

(retained counsel was permitted to withdraw without reviewing a brief filed under

Anders); State v. Roberts, 2020-Ohio-3391, ¶ 4 (2d Dist.) (retained counsel may

simply withdraw citing irreconcilable differences, and new counsel may be

appointed upon request). Under Anders, an appeal may be dismissed only if the

appointed counsel demonstrates that any and all potential appellate arguments

would be wholly frivolous if advanced. Anders at 742-743 (concluding that an

allegation that any appeal would be without merit was not sufficient to satisfy the

frivolity standard); see also State v. Flowers, 2025-Ohio-2071, ¶ 10 (8th Dist.).

Anything less deprives the appellant of his right to counsel. But see State v. Johnson,

2025-Ohio-2592 (8th Dist.) (affirming the convictions based on the arguments

presented by the pro se appellant whose appointed counsel was granted leave to

withdraw based on the claim that no meritorious arguments existed). Although the

preserved his appellate rights, and despite the procedural irregularities, appellate counsel was ultimately appointed. retained counsel’s brief under Anders was deficient, this panel granted him leave to

withdraw and new counsel was appointed to represent Hartness in this appeal.

Hartness now advances three assignments of error: that his

maximum consecutive sentences are excessive and unsupported by the record; that

the court erred by imposing the fine despite Hartness’s indigency; and that the trial

court denied him the right of allocution by repeatedly interrupting him and not

permitting him to finish addressing the court. Although the arguments lack merit,

none is wholly frivolous. Each assignment of error will be addressed in turn.

Under his first assignment of error, Hartness claims the trial court’s

imposition of maximum, consecutive sentences is not supported by the record. He

acknowledges, however, that the trial court made the requisite findings for imposing

consecutive sentences under R.C. 2929.14(C)(4).

Appellate review of the imposition of consecutive sentences is narrow.

State v. Rapier, 2020-Ohio-1611, ¶ 12 (8th Dist.). Under R.C. 2953.08(G)(2), an

appellate court “must examine the evidence in the record that supports the trial

court’s findings” and “may modify or vacate the sentence only if it ‘clearly and

convincingly finds’ that the evidence does not support the trial court’s

R.C. 2929.14(C)(4) findings.” State v. Glover, 2024-Ohio-5195, ¶ 45, quoting

R.C. 2953.08(G)(2)(a).

Hartness’s sole argument is that although the victim suffered serious

harm from the protracted assault, that harm was not so great or unusual to justify

the consecutive sentences. According to him, the aggregate term is “overkill.” Essentially, Hartness is inviting this panel to conduct a de novo review of the factors

considered for sentencing purposes. Appellate courts, however, cannot review the

weight of individual considerations to determine whether a trial court erred in

considering the facts underlying the consecutive-sentence findings. Rapier at ¶ 12,

citing R.C. 2953.08(G)(2) and State v. Marcum, 2016-Ohio-1002; see also State v.

Venes, 2013-Ohio-1891 (8th Dist.); State v. Jones, 2016-Ohio-8145, ¶ 17 (8th Dist.).

The sole question in this appeal is whether it can be clearly and convincingly

demonstrated that the record does not support the R.C. 2929.14(C)(4) findings.

Jones at ¶ 18.

Between the severity and duration of the assault and the victim’s

statements at sentencing regarding Hartness’s propensity for violent episodes, we

cannot conclude that the record clearly and convincingly does not support the

finding that the harm was so great and unusual that consecutive sentences were

necessary. Accord State v. Stiver, 2024-Ohio-65, ¶ 21 (8th Dist.) (noting the severity

of the abuse, the depravity displayed by the defendant during and after the assault,

and repeated criminal behavior were sufficient to support the consecutive-sentence

findings). The first assignment of error is overruled.

In the second assignment of error, Hartness claims the trial court

erred by imposing the $5,000 mandatory fine despite his indigency and without

considering his future ability to pay.

“There are no express factors that must be taken into consideration

nor specific findings that must be made by the court on the record, but there must be some evidence in the record that the trial court considered the defendant’s

ability to pay.” State v. Schneider, 2012-Ohio-1740, ¶ 10 (8th Dist.), citing State v.

Jacobs, 2010-Ohio-4010, ¶ 11 (8th Dist.). A trial court may satisfy this requirement

when the record shows that the court considered the presentence-investigation

report that contains detailed information regarding the defendant’s age, education,

physical and mental health, finances, and employment history. See State v.

Brown, 2020-Ohio-4474, ¶ 43 (8th Dist.).

Hartness did not object to the court’s imposition of the fines. He

instead argues that the record shows that he is indigent and that it is not likely that

he can afford to pay a $5,000 fine at any time in the foreseeable future. According

to Hartness, at the time of the offense he was living with his mother, was behind

on his child support, and although he was working part-time for a welding

company, he has no assets or career to fall back on when he is released from prison.

He maintains the totality of circumstances demonstrates the court failed to

consider his present and future ability to pay the fine.

“The fact that a defendant is ‘indigent’ or is represented by

appointed counsel does not preclude a trial court from imposing financial

sanctions.” Brown at ¶ 42, citing State v. Nitsche, 2016-Ohio-3170, ¶ 76 (8th

Dist.). Similarly, a lengthy prison sentence does not necessarily preclude a trial

court from imposing financial sanctions. Brown at ¶ 42, citing Nitsche at ¶ 76.

Although the trial court did not specifically inquire into his present or future ability

to pay the financial sanction, the court ordered a PSI report, which demonstrated that Hartness had some type of vocation for the purposes of future employment.

Further, although Hartness was not employed and was behind on his child-support

payments, the record shows he had posted a $10,000 surety bond at the onset of

proceedings. This information was available for the trial court’s consideration in

making an informed decision about Hartness’s future ability to pay the minimal

fine. See, e.g., State v. Rice, 2022-Ohio-1068, ¶ 16 (8th Dist.).

Hartness has not demonstrated error. The second assignment of

error is overruled.

In the third and final assignment of error, Hartness claims that the

trial court’s conduct “effectively denied [him] the right of allocution” because during

the sentencing hearing “the trial court repeatedly interrupted [him], berated him,

scolded him, used sarcasm to intimidate him, and then told him to sit down.”

The law is relatively settled. At sentencing, the trial court must

address the defendant “and ask whether he or she wishes to make a statement or

present information in mitigation of punishment” under Crim.R. 32(A)(1). State v.

Beasley, 2018-Ohio-493, ¶ 200. “If the court imposes sentence without affording

the defendant an opportunity to allocute, then resentencing is required unless the

error was invited or harmless.” Id., citing State v. Osie, 2014-Ohio-2966, ¶ 179. In

this case, the trial court offered Hartness the opportunity to speak but challenged

his statements minimizing or excusing his conduct.

Although the trial court spoke during Hartness’s allocution, which

could be best described as confrontational, it cannot be concluded that he was denied his right to speak. The trial court followed the interruptions to the

allocution by expressly permitting Hartness to speak further. The general rule in

Ohio is that “[a] trial court complies with a defendant’s right to allocution when it

personally addresses the defendant and asks whether he or she has anything to

say.” State v. Allison, 2025-Ohio-484, ¶ 12 (2d Dist.), quoting State v. Champeau,

2024-Ohio-4602, ¶ 11, citing State v. Frazier, 2019-Ohio-1546, ¶ 18 (2d Dist.); Osie

at ¶ 180. Although the trial court conversed with Hartness by challenging his

statements attempting to excuse his conduct, at no point did Hartness cede his

right to speak to the trial court. Although confrontational in tone, the trial court’s

interruptions were conversational in nature, responding to Hartness’s attempt to

downplay his responsibility or excuse his conduct based on vague assertions of

mental-health issues or a rough childhood. Following the interruptions, the trial

court expressly ensured that he was able to further speak. Although uninterrupted

allocution could be considered the best practice, this is not a case where the

defendant was “cowed” into silence by the interruptions. Allison at ¶ 13.

The third and final assignment of error is overruled.

Having overruled the assignments of error as presented, Hartness’s

convictions and sentences are 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 out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal 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.

______________________ SEAN C. GALLAGHER, JUDGE

LISA B. FORBES, P.J., CONCURS; EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY