State v. Leonard

2012 Ohio 4742

• Court: Ohio Court of Appeals
• Decided: October 9, 2012
• Docket: 12CA27
• Status: Published

Opinion

[Cite as State v. Leonard, 2012-Ohio-4742.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

State of Ohio, : : Plaintiff-Appellee, : Case No. 12CA7 : v. : : Ronald Leonard, : DECISION AND : JUDGMENT ENTRY Defendant-Appellant. : : Filed: October 9, 2012 :

APPEARANCES:

Richard H. Hedges, Athens, Ohio, for Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee. ______________________________________________________________________

Kline, J.:

{¶1} Ronald Leonard (hereinafter “Leonard”) appeals the judgment of the

Athens County Court of Common Pleas, which convicted him of failure to appear. On

appeal, Leonard initially contends that insufficient evidence supports his conviction. We

disagree and find that any rational trier of fact could have found all the essential

elements of failure to appear proven beyond a reasonable doubt. Next, Leonard

contends that the trial court erred in sentencing him to twelve months in prison. We

disagree. Leonard’s sentence is not clearly and convincingly contrary to law, and we

find nothing arbitrary, unreasonable, or unconscionable about a twelve-month prison

term. Accordingly, we overrule Leonard’s assignments of error and affirm the judgment

of the trial court. Athens App. No. 12CA7 2

I.

{¶2} On July 10, 2008, Leonard was found guilty of cultivation of marihuana.

That same day, the trial court released Leonard on a recognizance bond pending his

sentencing hearing. Leonard appeared for the sentencing hearing on September 29,

2008, and the trial court sentenced him to three years in prison. See generally State v.

Leonard, 4th Dist. No. 08CA24, 2009-Ohio-6191 (upholding Leonard’s conviction for

cultivation of marihuana).

{¶3} In sentencing Leonard, the trial court ordered him to “report to

Southeastern Ohio Regional Jail on October 9, 2008, by 12:00 p.m., to await transport

to the State Penal System.” October 1, 2008 Judgment Entry at 2. The trial court did

not, however, issue a new recognizance bond after the sentencing hearing.

{¶4} Leonard did not report to the Southeastern Ohio Regional jail as ordered.

And on October 14, 2008, a warrant was issued for Leonard’s arrest. Eventually,

Leonard was arrested and charged with failure to appear, a fourth-degree felony, in

violation of R.C. 2937.99(A). Leonard’s indictment states that

on or about the 9th day of October, 2008, at the County of

Athens aforesaid, Ronald D. Leonard did commit the crime

of Failure to Appear, did, knowingly or recklessly fail to

appear as required, after having been released pursuant to

Section 2937.29 of the Revised Code in connection with a

felony charge, to wit: Defendant failed to report to the

Southeastern Ohio Regional Jail * * * as ordered in Athens Athens App. No. 12CA7 3

County Common Pleas Court in Case No. 06CR0087[.]

(Emphasis sic.)

{¶5} After a jury trial, Leonard was found guilty of failure to appear. (Leonard

was also charged with two counts of possession of drugs, but the jury found him not

guilty of those charges.) The trial court then sentenced Leonard to twelve months in

prison.

{¶6} Leonard appeals and asserts the following assignments of error: I. “The

conviction for failure to appear/report as a violation of a Release on Recognizance is

against the manifest weight of the evidence.” And II. “The Trial Court erred by

sentencing the Defendant to prison time in contradiction to [sic] the Revised Code

§2929.13(B)(1)(b)(3) which directs the Court to place an individual convicted of a felony

of the 4th degree to community control.”

II.

{¶7} In his first assignment of error, Leonard contends there is insufficient proof

that a valid recognizance bond was in place on October 9, 2008. As a result, Leonard

argues that he did not violate R.C. 2937.99(A) when he failed to report to the

Southeastern Ohio Regional Jail.

{¶8} Although Leonard’s first assignment of error states that his conviction is

against the manifest weight of the evidence, Leonard is actually making an argument

based on the sufficiency of the evidence.1 That is, Leonard contends the state did not

1 Leonard’s appellate brief does not contain a legal standard for either a sufficiency-of- the-evidence challenge or a manifest-weight-of-the-evidence challenge. Therefore, his first assignment of error is not entirely clear. We choose a sufficiency review because Leonard’s argument focuses on the burden of production, not the burden of persuasion. Athens App. No. 12CA7 4

prove that he had “been released pursuant to section 2937.29 of the Revised Code[.]”

R.C. 2937.99(A). Accordingly, we will review Leonard’s first assignment of error under

a sufficiency-of-the-evidence standard.

{¶9} When reviewing a case to determine if the record contains sufficient

evidence to support a criminal conviction, we must

“examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind

of the defendant’s guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Smith, 4th

Dist. No. 06CA7, 2007-Ohio-502, ¶ 33, quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

See also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶10} The sufficiency-of-the-evidence test “raises a question of law and does not

allow us to weigh the evidence.” Smith, 2007-Ohio-502, at ¶ 34, citing State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Instead, the sufficiency-of-

the-evidence test “‘gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.’” Smith, 2007-Ohio-502, at ¶ 34, quoting Jackson at

See generally State v. Bonneau, 8th Dist. No. 97565, 2012-Ohio-3258, ¶ 24-25 (discussing the tests for sufficiency and manifest weight). Athens App. No. 12CA7 5

319. This court will “reserve the issues of the weight given to the evidence and the

credibility of witnesses for the trier of fact.” Smith, 2007-Ohio-502, at ¶ 34, citing State

v. Thomas, 70 Ohio St.2d 79, 79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

{¶11} Here, we find that sufficient evidence supports Leonard’s conviction for

failure to appear. Under R.C. 2937.99(A), “No person shall fail to appear as required,

after having been released pursuant to section 2937.29 of the Revised Code.” And

R.C. 2937.29 provides: “When from all the circumstances the court is of the opinion that

the accused will appear as required, either before or after conviction, the accused may

be released on his own recognizance.” On appeal, Leonard does not deny that he

failed to report to the Southeastern Ohio Regional Jail on October 9, 2008. And despite

Leonard’s arguments to the contrary, we find there was a valid recognizance bond in

place that day.

A.

{¶12} Initially, we reject Leonard’s argument that the Athens County Court of

Common Pleas had to issue a new recognizance bond on the date of sentencing. The

July 10, 2008 recognizance bond remained in force until Leonard was to report to

{¶13} Leonard’s argument regarding the July 10, 2008 recognizance bond is not

entirely clear. Nevertheless, the evidence demonstrates that on July 10, 2008, Leonard

was “released pursuant to section 2937.29 of the Revised Code.” R.C. 2937.99(A).

First, the Athens County Court of Common Pleas set Leonard’s bond “at $10,000 with

the following conditions[:] signature bond with co-signature. Sign ROR.” July 10, 2008 Athens App. No. 12CA7 6

Judgment Entry. And upon his July 10, 2008 release, Leonard signed two different

forms, both entitled “RECOGNIZANCE OF ACCUSED.” (These forms were entered

into evidence as “Exhibit 6” and “Exhibit 7.”) A deputy clerk for the Athens County Clerk

testified that Exhibit 6 “is the actual release of recognizance of accused form, signed by

the person that co-signed the bond and signed by the defendant himself as well.”

January 10, 2012 Transcript at 196. According to the deputy clerk, the co-signer did not

deposit cash because “it was a signature bond.” Id. at 211. Moreover, Exhibit 6 does

not indicate that either Leonard or the co-signer deposited any cash. Compare State v.

Fusik, 4th Dist. No. 04CA28, 2005-Ohio-1056, ¶ 7-19 (reversing a failure-to-appear

conviction when the defendant posted both a cash bond and a recognizance bond).

The deputy clerk also testified about Exhibit 7: “Exhibit 7 is release on recognizance of

accused. This form there was no bond ordered. This was just straight release on

recognizance. Defendant signs this form only. No one else signs this one.” January

10, 2012 Transcript at 196. Finally, both Exhibit 6 and Exhibit 7 substantially comply

with the “[f]orm of recognizance” found in R.C. 2937.44.

{¶14} In relevant part, the July 10, 2008 forms state the following:

THE CONDITION OF THIS RECOGNIZANCE IS SUCH,

THAT IF THE ABOVE BOUND PERSONALLY BE AND

APPEAR BEFORE SAID COURT OF COMMON PLEAS AT

THE TERM OF SAID COURT AND UNTIL THE CAUSE IS

DISPOSED OF, THEN AND THERE TO ANSWER A

CHARGE OF Athens App. No. 12CA7 7

-ILLEGAL CULTIVATION OF MARIHUANA ORC

2925.04(A), F3

AND ABIDE THE ORDER AND JUDGMENT OF THE

COURT, AND NOT DEPART WITHOUT LEAVE, THEN

THIS RECOGNIZANCE SHALL BE VOID; OTHERWISE IT

SHALL BE AND REMAIN IN FULL FORCE AND VIRTUE IN

LAW. (Emphasis added).

According to the plain language of the July 10, 2008 recognizance bond, Leonard was

required to appear until the “cause [was] disposed of[.]” And in applying R.C. 2937.29,

we have held that “[t]he execution of appellant’s sentence constitutes the final step of

the criminal proceedings.” State v. Hiatt, 120 Ohio App.3d 247, 255, 697 N.E.2d 1025

(4th Dist.1997). Therefore, because his cause was not yet disposed of, Leonard’s July

10, 2008 recognizance bond remained in “full force” until he was to report to the

Southeastern Ohio Regional Jail on October 9, 2008. See id. The Athens County Court

of Common Pleas was not required to issue a new recognizance bond on the date of

Leonard’s sentencing.

B.

{¶15} We also reject Leonard’s argument that the recognizance bond was

somehow negated by the October 14, 2008 arrest warrant. The arrest warrant was

issued on October 14, 2008, but Leonard failed to appear on October 9, 2008.

Therefore, even if the arrest warrant had negated the recognizance bond, the negation

would not have occurred until after Leonard had violated R.C. 2937.99(A).

C. Athens App. No. 12CA7 8

{¶16} In conclusion, we find sufficient evidence that a valid recognizance bond

was in place when Leonard failed to report to the Southeastern Ohio Regional Jail. And

after viewing the evidence in a light most favorable to the state, we find that any rational

trier of fact could have found all the essential elements of failure to appear proven

beyond a reasonable doubt. As a result, we overrule Leonard’s first assignment of

error.

III.

{¶17} In his second assignment of error, Leonard contends that the trial court

erred in imposing a twelve-month prison term for failure to appear.

{¶18} We use a two-step approach to review a felony sentence. “First, [we]

must examine the sentencing court’s compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and convincingly

contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed

under an abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-

4912, 896 N.E.2d 124, ¶ 4.

{¶19} Initially, we find that the trial court complied with all applicable rules and

statutes. Leonard was convicted of failure to appear, which is a non-violent felony of

the fourth degree. See R.C. 2929.13(B)(1)(a). However, in committing failure to

appear, Leonard violated the conditions of bond as set by the court. Therefore, the trial

court was authorized to impose a prison term under R.C. 2929.13(B)(1)(b)(iii). And a

twelve-month prison term falls within the permissible statutory range. See R.C.

2929.14(A)(4); State v. Stonerock, 4th Dist. No. 11CA15, 2012-Ohio-2290, ¶ 21-22.

Finally, the trial court considered the general guidance factors set forth in R.C. 2929.11 Athens App. No. 12CA7 9

and 2929.12. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶

42; Kalish at ¶ 13. Specifically, the trial court noted that it (1) had considered “the

principles and purposes of sentencing under R.C. 2929.11” and (2) had “balanced the

seriousness and recidivism factors under R.C. 2929.12.” January 23, 2012 Judgment

Entry. Accordingly, Leonard’s twelve-month sentence is not clearly and convincingly

contrary to law.

{¶20} Next, we address whether the trial court abused its discretion in imposing

Leonard’s sentence. An abuse of discretion connotes more than a mere error of

judgment; it implies that the court’s attitude is arbitrary, unreasonable, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). “In

the sentencing context, we review the trial court’s selection of the sentence within the

permissible statutory range.” State v. Smith, 4th Dist. No. 08CA6, 2009-Ohio-716, ¶ 17,

citing Kalish at ¶ 17. Sentencing courts “have full discretion to impose a prison

sentence within the statutory range and are [not] required to make findings or give their

reasons for imposing maximum * * * or more than the minimum sentences.” Foster at

paragraph seven of the syllabus; accord Kalish at ¶ 11. “Nevertheless, * * * courts must

still consider the general guidance factors set forth in R.C. 2929.11 and R.C. 2929.12.”

State v. Voycik, 4th Dist. Nos. 08CA33 & 08CA34, 2009-Ohio-3669, ¶ 14.

{¶21} Leonard argues that the trial court should not have imposed a prison term

because of R.C. 2929.13(B)(1)(a), which states the following: “Except as provided in

[R.C. 2929.13(B)(1)(b)], if an offender is convicted of or pleads guilty to a felony of the

fourth or fifth degree that is not an offense of violence, the court shall sentence the

offender to a community control sanction of at least one year’s duration if all of the Athens App. No. 12CA7 10

following apply: * * *.” Leonard argues that, because failure to appear is not an offense

of violence, the trial court should have imposed a community-control sanction.

However, a trial “court has discretion to impose a prison term upon an offender who is

convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense

of violence if * * * [t]he offender violated a term of the conditions of bond as set by the

court.” R.C. 2929.13(B)(1)(b)(iii). And by committing failure to appear, Leonard

necessarily violated the conditions of his recognizance bond. Therefore, the trial court

acted within its discretion by imposing a prison term instead of community control.

Furthermore, we can find nothing arbitrary, unreasonable, or unconscionable about a

twelve-month prison term, especially considering Leonard’s prior felony record. See

R.C. 2929.12(D)(2).

{¶22} Accordingly, we overrule Leonard’s second assignment of error. Having

overruled both of his assignments of error, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Athens App. No. 12CA7 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that Appellant pay the costs herein taxed.

The Court finds that there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. and Harsha, J: Concur in Judgment & Opinion.

For the Court

BY: Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.