State v. Hunter

2021 Ohio 1424

• Court: Ohio Court of Appeals
• Decided: April 22, 2021
• Docket: CT2020-0042
• Status: Published

Opinion

[Cite as State v. Hunter, 2021-Ohio-1424.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vs- Case No. CT2020-0042 TEDDIE HUNTER

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2020-0089

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 22, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH JAMES A. ANZELMO Prosecuting Attorney 446 Howland Drive Muskingum County, Ohio Gahanna, Ohio 43230

TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2020-0042 2

Hoffman, J. {¶1} Defendant-appellant Teddie Hunter appeals the judgment entered by the

Muskingum County Common Pleas Court convicting him of burglary (R.C. 2911.12(A)(1))

and sentencing him to a term of incarceration of eight to twelve years. Plaintiff-appellee

is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On February 2, 2020, Muskingum County Sheriff’s deputies were

dispatched to 16 Gaslight Lane in Zanesville, Ohio. Upon arriving at the residence,

Charles Perry and Laura Kronbitter, who resided at the home with their infant son,

reported a naked man attempted to force himself into their home. Perry and Kronbitter

told police the naked man said he was afraid because someone was trying to kill him.

Perry stated the man tried to force his way into the home with a PVC pipe, and tried to hit

Perry with the pipe by using the pipe as a spear. The man forced his foot inside the

residence, preventing Perry from closing the door. While Kronbitter called the police,

Perry managed to force the man outside.

{¶3} Police located a naked man, later identified as Appellant, at 15 Gaslight

Lane. Appellant admitted to using methamphetamine, and methamphetamine was found

in his system.

{¶4} Appellant was charged with one count of aggravated burglary with a repeat

violent offender specification. Pursuant to a negotiated plea, the State amended the

charge to one count of burglary, in exchange for Appellant’s plea of guilty to the charge.

Following a presentence investigation, Appellant was sentenced to eight to twelve years

incarceration. It is from the August 17, 2020 judgment of the Muskingum County Common

Pleas Court Appellant prosecutes his appeal, assigning as error: Muskingum County, Case No. CT2020-0042 3

I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED

CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING

FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES

AND THE STATE OF OHIO.

II. TEDDIE HUNTER RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE

OHIO CONSTITUTION.

III. THE TRIAL COURT ERRED WHEN IT SENTENCED HUNTER

TO A MAXIMUM TERM OF INCARCERATION, IN VIOLATION OF HIS

RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE

I OF THE OHIO CONSTITUTION, AND THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE OHIO CONSTITUTION.

IV. THE TRIAL COURT ERRED BY ORDERING HUNTER TO PAY

COURT COSTS.

I., II.

{¶5} Appellant was sentenced pursuant to the Reagan Tokes Act, as codified by

R.C. 2967.271. In his first assignment of error, he argues the presumptive release

provisions of the Act are unconstitutional. In his second assignment of error, he argues

his trial counsel was ineffective for failing to raise a constitutional challenge to the Act in

the trial court. For the reasons stated in State v. Downard, 5th Dist. Muskingum No. Muskingum County, Case No. CT2020-0042 4

CT2019-0079, 2020-Ohio-4227, appeal allowed, 160 Ohio St.3d 1507, 2020-Ohio-6835,

159 N.E.3d 1152, Appellant’s first and second assignments of error are overruled.

III.

{¶6} In his third assignment of error, Appellant argues the trial court erred in

imposing the maximum sentence. He argues he expressed remorse for his actions, and

he was hallucinating on methamphetamine at the time of the incident. He argues he did

not completely enter the residence, and only broke the door of the home with the PVC

pipe because his foot was caught in the door.

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

2953.08(G)(2), which provides in pertinent part:

(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 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 Muskingum County, Case No. CT2020-0042 5

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.

{¶8} A trial court's imposition of a maximum prison term is not contrary to law as

long as the court sentences the offender within the statutory range for the offense, and in

so doing, considers the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.

Kinser, 5th Dist. Muskingum No. CT2019-0089, 2020-Ohio-3881, ¶ 10, citing State v.

Santos, 8th Dist. Cuyahoga No. 103964, 2016-Ohio-5845, ¶ 12. Although a trial court

must consider the factors in R.C. 2929.11 and 2929.12, there is no requirement the court

state its reasons for imposing a maximum sentence, or for imposing a particular sentence

within the statutory range. Id. R.C. 2929.12 does not require the trial court to state on the

record it has considered the statutory criteria concerning seriousness and recidivism.

State v. Hayes, 5th Dist. Knox No. 18CA10, 2019-Ohio-1629, ¶49.

{¶9} 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. The trial court stated at the sentencing

hearing it had reviewed the presentence investigation. The court noted Appellant had an

extensive criminal history, including convictions for robbery in 2013 and 2010, receiving

stolen property and forgery in 2009, theft of checks and forgery in 2006, two counts of

forgery in 2003, and receiving stolen property in 1998. Appellant was sentenced to seven

years in prison for robbery in 2013, and was released on January 6, 2020, less than a Muskingum County, Case No. CT2020-0042 6

month before the commission of the instant offense. He was on post-release control at

the time of this offense. Further, the trial court noted during his most recent term in prison,

Appellant used marijuana “pretty consistently,” and had been caught with Suboxone and

“two gallons of hooch” in his possession. Sent. Tr. 11. The trial court also noted while

serving time in a halfway house, Appellant was found with a concealed bag of urine during

a drug test.

{¶10} 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 maximum 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.

{¶11} The third assignment of error is overruled.

IV.

{¶12} In his fourth assignment of error, Appellant argues the trial court erred in

imposing court costs because he is indigent. At the sentencing hearing, Appellant argued

he should not be ordered to pay court costs because he is disabled and receives Social

Security, which he would not receive while in prison.

{¶13} Pursuant to R.C. 2947.23, the trial court is required to impose the costs of

prosecution against all convicted defendants, regardless of whether the defendant is

deemed indigent. However, the court has jurisdiction at sentencing or any time thereafter

to waive, suspend, or modify payment of costs. R.C. 2947.23(C). “[A] trial court is not Muskingum County, Case No. CT2020-0042 7

required to consider the defendant's ability to pay in assessing a motion to waive,

suspend, or modify court costs under R.C. 2947.23(C), though it is permitted to do so.

State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶16.

{¶14} We find no error in the trial court’s imposition of court costs. Although

Appellant will not receive his Social Security payments while in prison, presumably he will

receive such payments after he is released from prison, and would then have the ability

to pay costs.

{¶15} The fourth assignment of error is overruled.

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

By: Hoffman, J. Baldwin, P.J. and Gwin, J. concurs in part; dissents in part Gwin, J., concurs in part; dissents in part

{¶17} I concur in the majority’s disposition of Appellant’s Third and Fourth

Assignments of Error.

{¶18} I respectfully dissent from the majority’s opinion concerning ripeness and

Appellant’s First and Second Assignments of Error for the reasons set forth in my

dissenting opinion in State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-Ohio-

5501.

{¶19} I further note that the Ohio Supreme Court has accepted a certified conflict

on the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review on

direct appeal or only after the defendant has served the minimum term and been subject

to extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas No. L-19-

1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d

1505, 2020-Ohio-6913, 159 N.E.3d 1150(Table) The conflict cases are State v. Leet, 2d

Dist. Montgomery No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist. Montgomery

No. 28644, 2020-Ohio-4153; State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-

Ohio-4150; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837;

See also, State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227,

appeal accepted on Appellant’s Proposition of Law No. II, State v. Downard, 160 Ohio

St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1507 (Table)(Sua sponte, cause held for the

decision in 2020-1266, State v. Maddox).