State v. Lowe

2022 Ohio 4469

Opinion

[Cite as State v. Lowe, 2022-Ohio-4469.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2022 CA 0037 DARREN LOWE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2021 CR 0928

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 12, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP RANDALL E. FRY Prosecuting Attorney 10 West Newlon Place Richland County, Ohio Mansfield, Ohio 44902

CHASE E. BAKER Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 2022 CA 0037 2

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

Richland County Common Pleas Court convicting him following his pleas of guilty to

abduction (R.C. 2905.02(A)(1)(C)), vandalism (R.C. 2909.05(B)(1)(a)),(E)), assault (R.C.

2903.13(A),(C)) and obstructing official business (R.C. 2921.31(A),(B)) and sentencing

him to an aggregate prison term of 48 months. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 29, 2021, Appellant, who was 17-years-old and on probation

through the Department of Youth Services, resided at 783 Lenox in Mansfield, Ohio. An

order was placed for food to be delivered to the residence from Domino’s Pizza. The

order requested the delivery person leave the food on the porch.

{¶3} The victim was working as a delivery person for Domino’s on the day in

question, and delivered the food to 783 Lenox. She left the food on the porch as

instructed, and started to walk to her car. Appellant came out of the residence and asked

for a receipt. When she walked back to give him the receipt, he tackled her and tried to

choke her. Appellant allowed the victim to get up, and she attempted to return to her car.

{¶4} After the victim took a few steps toward her car, Appellant grabbed her and

pulled her to a shed behind the house. The victim was able to get away and ran to a

nearby house, where she called 911.

{¶5} Appellant was wearing a GPS monitor on his ankle at the time of the offense

because of the terms of his probation. Appellant fled his home, eventually breaking off

the ankle monitor and leaving it in bushes near a friend’s house. The ankle monitor was

damaged beyond repair. Richland County, Case No. 2022 CA 0037 3

{¶6} Following a bindover proceeding in the juvenile court, the case was bound

over to the Common Pleas Court for trial as an adult, and Appellant was indicted by the

Richland County Grand Jury with abduction, vandalism, assault, and obstructing official

business. He entered pleas of guilty to all charges and was sentenced to 36 months

incarceration for abduction, 12 months incarceration for vandalism, 180 days

incarceration for assault, and 90 days incarceration for obstructing official business. The

sentences for abduction and vandalism were ordered to run consecutively to each other.

The sentences for assault and obstructing official business were ordered to run

concurrently with the sentences for abduction and vandalism.

{¶7} It is from the April 27, 2022 judgment of conviction and sentence Appellant

prosecutes his appeal, assigning as error:

THE TRIAL COURT SENTENCE OF MAXIMUM CONSECUTIVE

SENTENCES WAS NOT SUPPORTED BY THE RECORD.

{¶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. Richland County, Case No. 2022 CA 0037 4

{¶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 and 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 Richland County, Case No. 2022 CA 0037 5

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

2929.12. State v. Jones, 169 N.E.3d 649, 2020-Ohio-6729, ¶ 42. Instead, we may only

determine if a sentence is contrary to law. State v. Pettorini, 5th Dist. Licking No. 2020

CA 00057, 2021-Ohio-1512, ¶ 15

{¶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.” Id. at ¶¶ 14-16, quoting State v. Dinka, 12th Dist.

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

{¶14} In the instant case, the sentencing transcript reflects the trial court

considered the victim impact statement, Appellant’s behavioral record inside the Richland

County Jail, and the presentence investigation. The trial court stated on the record it had

considered the principles and purposes of sentencing set forth in R.C. 2929.11, as well

as the seriousness and recidivism factors in R.C. 2929.12. We find the maximum

sentences imposed are not clearly and convincingly contrary to law in the instant case,

and thus we do not have authority to disturb the sentence on appeal.

{¶15} Appellant also argues the trial court erred in imposing consecutive

sentences.

{¶16} 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 Richland County, Case No. 2022 CA 0037 6

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.

{¶17} 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. Richland County, Case No. 2022 CA 0037 7

{¶18} Appellant argues the trial court’s findings are not supported by the record

because he does not have an adult felony record, and should be given an opportunity at

adult probation. He also argues the record does not reflect serious harm to the victim.

He argues he showed remorse for his actions, and the details of his behavioral record at

the Richland County Jail which are mentioned by the trial court are not in the record.

{¶19} The trial court found consecutive sentences are necessary to protect the

public from future crime or to punish Appellant, and consecutive sentences are not

disproportionate to the seriousness of Appellant’s conduct and the danger he poses the

public. The trial court additionally found Appellant committed the offenses while under a

community control sanction for a prior offense, and his history of criminal conduct

demonstrates consecutive sentences are necessary to protect the public from future

crime by Appellant. It is undisputed Appellant was on probation for a juvenile offense at

the time of the instant crimes. The trial court noted Appellant, who was 17 years old at

the time of the offense, had an extensive juvenile record including criminal trespass,

falsification, inducing panic, illegal possession of an object indistinguishable from a

firearm in a school zone, aggravated burglary, assault, underage consumption,

unauthorized use of a motor vehicle, grand theft of a motor vehicle, receiving stolen

property, and obstructing official business. In addition to the charges in the instant case,

Appellant’s adult record included disorderly conduct and criminal damaging. His risk

assessment placed him at high risk to re-offend. The victim’s life was changed completely

by the offenses, and she was unable to work for a period of a month. The judge further

noted Appellant had an extensive record at the Richland County Jail, in which he did not

cooperate with authorities and threatened to kill himself any time he didn’t want to comply Richland County, Case No. 2022 CA 0037 8

with orders from the facility or he didn’t like something in the jail. Sent. Tr. 9-12. We find

the trial court’s findings consecutive sentences are supported by the record.

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

HON. WILLIAM B. HOFFMAN

HON. W. SCOTT GWIN

HON. PATRICIA A. DELANEY