State v. Lewis

2023 Ohio 3307

Opinion

[Cite as State v. Lewis, 2023-Ohio-3307.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs- Case No. CT2023-0004 GARLAND LEWIS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022- 0486

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 15, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road Muskingum County, Ohio Thornville, Ohio 43076

JOHN CONNOR DEVER Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2023-0004 2

Hoffman, J. {¶1} Defendant-appellant Garland Lewis appeals his sentence entered by the

Muskingum County Court of Common Pleas, on five counts of corrupting another with

drugs, after the trial court accepted his guilty pleas. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On April 15, 2022, G.P., a minor, and several friends, including K.T. and

H.P., who were also minors, as well as H.E. and J.F., who were both 20 years old, were

having a “fun Friday,” getting drunk, doing coke, and smoking weed. Transcript of

Sentencing Hearing at p. 27. Shortly after midnight on April 16, 2022, G.P. contacted

Appellant’s co-defendant, Chad Kennedy, through Facebook Messenger. G.P. asked

Kennedy if he was with Appellant as she needed $70 worth of cocaine. After some

discussion, G.P. agreed to meet Appellant and Kennedy at the Lazy River Lounge to

purchase the drugs. G.P. traveled to the Lazy River Lounge with H.E. and another friend

who was not involved in the subsequent events. Following the purchase, G.P. and her

friends return to their other friends. G.P., K.T., H.P., H.E., and J.F. ultimately overdosed

on the cocaine which was laced with fentanyl. The five were taken to the hospital and

revived with Narcan.

{¶3} On September 28, 2022, the Muskingum County Grand Jury indicted

Appellant on five counts of corrupting another with drugs, in violation of R.C.

2925.02(A)(3) and (C)(1), felonies of the second degree; three counts of corrupting

another with drugs, in violation of R.C. 2925.02(A)(4)(a) and (C)(1), felonies of the second

degree; one count of trafficking in a fentanyl-related compound, in violation of R.C.

2925.03(A)(1) and (C)(9)(a), a felony of the fifth degree; and one count of trafficking in

cocaine, in violation of R.C. 2925.03(A)(1) and (C)(4)(a), a felony of the fifth degree. Muskingum County, Case No. CT2023-0004 3

Appellant appeared before the trial court for arraignment on October 5, 2022, and entered

pleas of not guilty to all of the charges.

{¶4} Appellant appeared before the trial court on November 21, 2022, withdrew

his former pleas of not guilty, and entered guilty pleas to Counts One, Two, Three, Four,

and Five of the Indictment. The trial court deferred sentencing, pending a pre-sentence

investigation.

{¶5} The trial court conducted a sentencing hearing on December 28, 2022. The

trial court imposed a mandatory minimum prison term of three (3) years to an indefinite

term of four and one-half (4 ½) years on Count One, and mandatory prison terms of three

(3) years on Counts Two, Three, Four, and Five. The trial court ordered the sentences

be served consecutively, for an aggregate sentence of a mandatory minimum of fifteen

(15) years to an indefinite term of sixteen and one-half (16 ½) years. The trial court

memorialized Appellant’s sentence via Entry filed January 5, 2023. Upon motion of the

state, the trial court dismissed Counts Six, Seven, Eight, Nine, and Ten of the Indictment.

January 6, 2023 Order Granting Motion to Dismiss.

{¶6} It is from this sentence Appellant appeals, raising the following assignments

of error:

I. THE PROPORTIONALITY OF THE SENTENCE WAS

INCONSISTENT WITH THE PRINCIPLES SET FORTH [IN] O.R.C.

2929.11 AND FACTORS TO BE CONSIDERED IN O.R.C. 2929.12.

II. SHOULD [SIC] THIS HONORABLE COURT SHOULD VACATE

THE TRIAL COURT’S DECISION TO IMPOSE CONSECUTIVE Muskingum County, Case No. CT2023-0004 4

SENTENCES ON COUNTS 2-3 AND 5 BECAUSE THE CONSECUTIVE

SENTENCES ARE IN CONTRAVENTION OF THE SENTENCING

STATUTES.

I, II

{¶7} 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.

{¶8} 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.

{¶9} “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 Muskingum County, Case No. CT2023-0004 5

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).

{¶10} 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.

{¶11} 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.

Instead, we may only determine if the sentence is contrary to law.

{¶12} 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. Muskingum County, Case No. CT2023-0004 6

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

permitted by law, but rather asserts his sentence was disproportionate and inconsistent

with 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 set forth in Jones, supra,

this Court is without authority to reweigh the statutory sentencing factors.

{¶14} In its January 5, 2023 Entry, the trial court stated it had “considered the

record, all statements, any victim impact statement, the plea recommendation in this

matter, as well as the principles and purposes of sentencing under Ohio Revised Code

2929.11 and its balance of the seriousness and recidivism factors under Ohio Revised

Code 2929.12.” Jan. 5, 2023 Entry at p. 1, unpaginated. Further, the trial court sentenced

Appellant within the statutory range. 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 particular sentence within the statutory range. State v. Webb, 5th Dist.

Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 17. Accordingly, we find the sentence

is not contrary to law.

{¶15} Additionally, Appellant claims the aggregate sentence amounts to cruel and

unusual punishment. Appellant notes he was clearly remorseful and readily took

responsibility for his actions.

{¶16} “[F]or purposes of the Eighth Amendment and Section 9, Article I of the Ohio

Constitution, proportionality review should focus on individual sentences rather than on

the cumulative impact of multiple sentences imposed consecutively.” State v. Hairston,

118 Ohio St.3d 289, 2008-Ohio-2338, ¶ 20. Further, “[w]here none of the individual

sentences imposed on an offender are grossly disproportionate to their respective Muskingum County, Case No. CT2023-0004 7

offenses, an aggregate prison term resulting from consecutive imposition of those

sentences does not constitute cruel and unusual punishment.” Id.

{¶17} Here, Appellant was sentenced to a mandatory minimum prison term of

three (3) years to an indefinite term of four and one-half (4 ½) years on Count One, and

mandatory prison terms of three (3) years on Counts Two, Three, Four, and Five. The

individual sentences fall within the statutory ranges for the offenses. As such, we find

Appellant’s sentence does not amount to cruel and unusual punishment.

{¶18} Appellant further submits the trial court erred in imposing consecutive

sentences.

{¶19} 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:

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. Muskingum County, Case No. CT2023-0004 8

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.

The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶20} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to

state reasons to support its findings, nor must it recite certain talismanic words or phrases

in order to be considered to have complied. State v. Smith, 10th Dist. Franklin No. 18AP-

525, 2019-Ohio-5199, ¶ 34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

syllabus.

{¶21} At the December 28, 2022 sentencing hearing, the trial court stated:

I’ll note again, I received the presentence investigation. I’ve

reviewed it thoroughly. I reviewed the letters on [Appellant’s] behalf * * * as

well as the letters from the victims in this matter * * *

Court finds consecutive sentences are necessary to protect the

public and punish the offender. Consecutive sentences are not Muskingum County, Case No. CT2023-0004 9

disproportionate to the seriousness of the conduct imposed to – and the

danger posed to the public.

Additionally, at least two of the multiple offenses were committed as

part – as part of one or more courses of conduct, and the harm caused by

two or more of the multiple offenses so committed were 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 your

conduct.

{¶22} Tr. Dec. 28, 2022 Sentencing Hearing at pp. 34, 39.

{¶23} In its January 5, 2023 Entry, the trial court likewise found “the imposition of

consecutive sentences are necessary to protect the public from future crime or to punish

[Appellant], and that consecutive sentences are not disproportionate to the seriousness

of [Appellant's] conduct, and to the danger [Appellant] poses to the public.” Jan. 5, 2023

Entry at p. 2, unpaginated. The trial court further found “[a]t 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 committed was so great or unusual that no single

prison term for any of the offenses committed as a part of the course of conduct

adequately reflects the seriousness of [Appellant’s] conduct.” Id.

{¶24} Appellant concedes the trial court made the requisite findings, but contends

“consecutive sentences were not necessary to protect the public because the Appellant

did not pose a risk so great as to impose consecutive sentences in aggregate of 15 years.”

Brief of Appellant at p. 12. Appellant further argues “the seriousness of his conduct was Muskingum County, Case No. CT2023-0004 10

that of selling an F5 level of drugs to two individuals, not 5. Imputing his conduct to the 3

individuals that G.P. and [H.E.] supplied drugs to, and were never charged for the same,

is an injustice.” Id.

{¶25} Upon review of the transcript of the sentencing hearing, we are not “left with

a firm belief or conviction that the findings are not supported by the evidence.” See, State

v. Gwynne, ––– Ohio St.3d ––––, 2022-Ohio-4607, ––– N.E.3d ––––, ¶ 23. At the

sentencing hearing, Appellant acknowledged he sold drugs to make money. Tr. Dec. 28,

2022 Sentencing Hearing at p. 34. Appellant agreed with the trial court’s characterization

of him as a predator who was poisoning the community. Id. Appellant admitted he did

not have a job and was supporting himself by selling drugs. Id. at p. 35. Appellant

conceded he did not test the drugs before he sold such to G.P. Id. We find the trial court’s

imposition of consecutive sentences is supported by the record. Muskingum County, Case No. CT2023-0004 11

{¶26} Appellant’s first and second assignments of error are overruled.

{¶27} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Hoffman, J. Gwin, P.J. and King, J. concur