[Cite as State v. McNair, 2024-Ohio-107.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 00042 TYLER McNAIR
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2022 CR 00986
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 12, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE CATHERINE MEEHAN PROSECUTING ATTORNEY PATITUCE & ASSOCIATES, LLC VICKI L. DeSANTIS 16855 Foltz Industrial Parkway ASSISTANT PROSECUTOR Strongsville, Ohio 44149 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2023 CA 00042 2
Wise, J.
{¶1} Appellant Tyler McNair appeals his conviction on one count of Felonious
Assault, entered in the Stark County Court of Common Pleas following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} On June 1, 2022, the Stark County Grand Jury indicted Defendant-
Appellant Tyler McNair in a three-count indictment with one count of Felonious Assault,
in violation of R.C. §2903.11(A)(2)/(D)(1)(a), a felony of the second-degree, one count of
Attempted Murder, in violation of R.C. §2923.02, a felony of the first degree, and one
count of Aggravated Arson, in violation of R.C. §2909.02(A)(1)/(B)(2), a felony of the first
degree.
{¶5} On March 8, 2023, a jury trial commenced in this matter.
{¶6} The State called seven witnesses: the victim ("T.I."); the victim’s mother
("S.C."); the victim’s father ("C.C."); Heather Bizub, a forensic scientist at the Ohio Bureau
of Criminal Investigation ("BCI"); Clara Gandy, R.N., from MetroHealth burn unit; Richard
Bibighaus, an investigator for the City of Canton Fire Department ("CFD"); and Michael
Mullins, a cellmate of Appellant.
{¶7} T.I., the victim, testified that she had been staying at 614 Marion Ave., S.W.,
remodeling her brother's house, for approximately two weeks prior to the incident. (T. Vol.
I. at 140, 153, 195). The house was located about two blocks from her parents' house.
(T. Vol. I. at 125). She told the jury that she had set up a two-room tent on the first floor Stark County, Case No. 2023 CA 00042 3
of the house and slept on a cot inside the tent. (T. Vol. I. at 155). She explained that she
heated the tent with candles because there was no gas or electric in the house. (T. Vol.
I. at 156, 157).
{¶8} T.I. testified that on April 26, 2022, her on-again/off-again boyfriend, Tyler
McNair, stayed at the house to help paint. (T. Vol. I. at 156). She recalled that she fell
asleep that night on one of the cots and woke up around 8:00 a.m. to find McNair sitting
with some books on his lap on another cot. (T. Vol. I. at 159). She said that McNair asked
her where his gold was and she replied, "I [don't] have it." (T. Vol. I. at 160). She testified
that as she started to put her shoes on she noticed a blank look on McNair's face. And
the next thing she recalled was McNair hitting her head, face, and arms several times
with a hammer. (T. Vol. I. at 161-162). She testified that "[she] was trying to defend
[her]self" and McNair told her, "We [a]re going to die together." (T. Vol. I. at 163). She
stated that when McNair hit her, she knocked over the candle sitting on the table in the
tent, which set a stuffed teddy bear on fire. (T. Vol. I. at 163). She said that she begged
McNair to allow her to try to put out the fire, but he refused, so she pushed him and ran
toward the front door and that as she ran, McNair hit her again in the back of the head.
(T. Vol. I. at 164-165, 184).
{¶9} T.I. recalled that her clothes had caught fire and that she tried to put the fire
out with her hands. (T. Vol. I. at 165). She then ran to her parents' house and knocked on
the door, where her dad answered. (T. Vol. I. at 166). The next thing she recalled was
waking up in Cleveland MetroHealth hospital. (T. Vol. I. at 167).
{¶10} T.I. sustained multiple injuries on her head, hands, and arms, including skull
fractures, scars, and burns. (T. Vol. I. at 162, 168). T.I. explained she required skin grafts Stark County, Case No. 2023 CA 00042 4
for the burns and that her hands no longer work like they did before. (T. Vol. I. at 169).
T.I. identified the claw hammer McNair used to hit her. (T. Vol. I. at 171). T.I. positively
identified McNair as the person who attacked her. (T. Vol. I. at 172).
{¶11} T.I.’s father, C.C., testified that he heard T.I. screaming and pounding on
his door and that she fell into the house as he opened the door. (T. Vol. I. at 141). He
recalled that he helped her to the couch and called his wife. (T. Vol. I. at 142). T.I. told
him she was in really bad pain; and then he saw an ambulance pull up to the house so
he walked her out to the ambulance. (T. Vol. I. at 142).
{¶12} T.I.’s mother, S.C., testified that when she saw her daughter for the first time
after the incident, T.I. was black from smoke, her hair was singed to her head, and blood
and tears were streaming down her face. (T. Vol. I. at 128). She recalled that EMS initially
took T.I. to Aultman hospital, but due to the trauma, she was transferred to Cleveland
MetroHealth. (T. Vol. I. at 129). There, S.C. saw her daughter sedated but in terrible pain.
Id. T.I. was in MetroHealth hospital almost two weeks and was then transferred to Mercy
Hospital for several days. (T. Vol. I. at 131, 133).
{¶13} The jury also heard from Michael Mullins, McNair's cellmate, who testified
that McNair confessed to him. (T. Vol. I. at 275). Mullins stated that McNair told him that
he and T.I. were living in a tent inside an abandoned house. (T. Vol. I. at 269). McNair
claimed T.I. was going through his phone, he became irate, and hit T.I. with a hammer a
couple of times. Id. McNair told him that during the struggle a candle was knocked over
which then caught other things inside the tent on fire and McNair panicked. Id. McNair
told Mullins he then jumped out the window and ran, stating he cut himself a few times to
make it look like T.I. attacked him first. (T. Vol. I. at 270). McNair also told Mullins that he Stark County, Case No. 2023 CA 00042 5
would need gold to get into heaven. (T. Vol. I. at 274). Mullins kited (used a machine to
write a note) to a guard in his pod after McNair confessed to him.
{¶14} Mullins admitted, and the jury heard, he was a convicted felon and although
released, he still had a pending case for identity fraud in Cuyahoga County, was currently
on probation from Summit County for felony child support, was in veteran’s court, and
had misdemeanor theft and domestic violence charges. (T. Vol. I. at 277-279).
{¶15} Clara Gandy, R.N., from MetroHealth's burn unit testified that she treated
T.I. at the hospital and had reviewed her records. (T. Vol. Vol. II. at 26, 58). She described
the burns on T.I. as severe second and third-degree burns, and further noted the
lacerations on T.I.'s head and arms required staples. (T. Vol. II. at 38). Ms. Gandy then
described the third-degree burns on T.I.'s chest which required skin grafting taken from
her thigh. (T. Vol. II. at 39). T.I. also had fractures to her skull and right hand. (T. II. at 44).
Nurse Gandy identified numerous photographs of T.I.'s injuries. (T. Vol. II. at 34).
{¶16} Richard Bibighaus, Canton Fire Department Investigator, testified that he
was dispatched and was first on the scene. (T. Vol. II. at 195). Investigator Bibighaus
explained that T.I. was intubated and then placed on a ventilator in the hospital to protect
her airway. (T. Vol. II. at 209). He stated that he personally observed T.l.'s injuries and
also saw photographs of her at the hospital, and that injuries resembled lacerations from
a claw hammer. (T. Vol. II. at 200-202, 212, 239). After seeing those photographs, he
returned to the scene on Marion and located the hammer. (T. Vol. II. at 215). He stated
that an evidence technician had found the claw hammer in the backyard, just outside the
window, laying in a pile of rubble. (T. Vol. II. at 215-216). He explained that he found hair
on the head of the hammer. (T. Vol. II. at 244, 252). He further explained that the person Stark County, Case No. 2023 CA 00042 6
who left through the back of the house exited through a window, not a door. (T. Vol. II. at
245). He told the jury that once he was able to speak to T.I., she told him that McNair was
the person who attacked her. (T. Vol. II. at 238).
{¶17} Heather Bizub, a forensic scientist at BCI assigned to the DNA section,
testified that she tested the hammer and found female DNA profile on the head of the
hammer consistent with T.l.'s DNA profile. (T. Vol. II, at 11, 19).
{¶18} The defense presented the testimony of Appellant’s mother who stated that
she saw her son on the evening of the fire. (T. Vol. II at 76). Mrs. McNair indicated that
Appellant had cuts on his hands and going up his fingers as if he were putting his arms
up to try to grab. (T. Vol. II at 79-80). The cuts were significant enough that she suggested
he go to the Emergency Room for stitches. (T. Vol. II. at 78-79). Mrs. McNair indicated
that she was aware these injuries occurred in an altercation with T.I. (T. Vol. II at 82). Mrs.
McNair was afraid for her son and wanted him to go to the hospital. (T. Vol. II. at 82). She
also testified about an injury Appellant had on his right eye after the fire. (T. Vol. II. at 80).
She took photographs of Appellant's injuries about one week after the incident. (T. Vol. II.
at 80). On cross-examination, Mrs. McNair agreed that the cuts appeared linear and
agreed that they could have come from glass. (T. Vol. II. at 83-84).
{¶19} After two days of testimony, Appellant was convicted of Felonious Assault.
The Attempted Murder count was dismissed, and Appellant was acquitted of Aggravated
Arson.
{¶20} On April 4, 2023, the trial court sentenced Appellant to an indefinite
minimum prison term of eight (8) years up to a maximum prison term of twelve (12) years.
{¶21} Appellant now appeals, raising the following errors for review: Stark County, Case No. 2023 CA 00042 7
ASSIGNMENTS OF ERROR
{¶22} “I. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶23} “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARENTEED [SIC] BY THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUION [SIC] AND ARTICLE 1 SECTION 10 OF THE OHIO
CONSTITUION [SIC].
{¶24} “III. THE TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM
PRISON TERM FOR ONE OFFENSE.”
I.
{¶25} In his first assignment of error, Appellant claims his felonious assault
conviction is against the manifest weight of the evidence. We disagree.
{¶26} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387, 678
N.E.2d 541. Reversing a conviction as being against the manifest weight of the evidence and
ordering a new trial should be reserved for only the “exceptional case in which the evidence
weighs heavily against the conviction.” Id.
{¶27} Appellant herein was convicted of Felonious Assault, in violation of R.C.
§2903.11(A)(2)/(D)(1)(a). which states:
(A) No person shall knowingly do either of the following: Stark County, Case No. 2023 CA 00042 8
(1) ***
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous ordnance.
***
(D)(1)(a) Whoever violates this section is guilty of felonious assault.
Except as otherwise provided in this division or division (D)(1)(b) of this
section, felonious assault is a felony of the second degree. If the victim of a
violation of division (A) of this section is a peace officer or an investigator of
the bureau of criminal identification and investigation, felonious assault is a
felony of the first degree.
{¶28} Appellant herein argues that the “record is filled with conflicting testimony
which would make it difficult to surmount the claim that Appellant knowingly caused
serious physical harm to T.I.” and “replete with testimony regarding T.I.’s mental health
status and her substance abuse issues.” (Appellant’s Brief at 4).
{¶29} While Appellant argues that the jury should not have believed the victim’s
testimony as what happened that day and how she was injured based on her mental
health issues and her admission to using drugs in the days leading up to the incident,
Appellant fails to point to any actual inconsistent testimony in the record.
{¶30} Even if inconsistent testimony had been presented, the jury may take note
of inconsistencies and resolve or discount them accordingly, and such inconsistencies
alone do not render a conviction against the manifest weight or sufficiency of the
evidence. State v. Craig, 10th Dist. Franklin App. No. 99AP-739, 2000 WL 297252, (Mar. Stark County, Case No. 2023 CA 00042 9
23, 2000), quoting State v. Nivens, 10th Dist. Franklin App. No. 95APA09-1236, 1996 WL
284714, (May 28, 1996).
{¶31} Here, the jury had before it the testimony of T.I., the victim, as to what took
place on that morning. She testified that Appellant hit her in the head with a claw hammer
more than once. Both the victim and Nurse Gandy testified as to the injuries T.I. sustained
on her head, hands, and arms, including skull fractures, scars, and burns which required
skin grafts. The jury also heard testimony from Michael Mullins which corroborated that
of T.I. He testified that Appellant told him he hit T.I. with a hammer a couple of times, that
during the struggle a candle was knocked over which then caught other things inside the
tent on fire, and that he jumped out the window and ran. Mullins testified that Appellant
told him that he cut himself a few times to make it look like T.I. attacked him first. The jury
also heard from a forensic scientist who testified that she tested the hammer and found
female DNA profile on the head of the hammer consistent with T.l.'s DNA profile.
{¶32} It was for the jury to determine the credibility of the testimony, and in this
case, it is not patently apparent that the jury lost its way. Therefore, based on the evidence
before this Court as set forth above, we do not find this to be an exceptional case in which
the evidence weighs heavily against the conviction.
{¶33} Appellant’s first assignment of error is denied.
II.
{¶34} In his second assignment of error, Appellant argues that he was denied the
effective assistance of counsel. We disagree.
{¶35} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors Stark County, Case No. 2023 CA 00042 10
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable
probability" is "probability sufficient to undermine confidence in the outcome." Strickland
at 694.
{¶36} Because there are countless ways to provide effective assistance in any
given case, judicial scrutiny of a lawyer's performance must be highly deferential.
Strickland, supra at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Decisions on strategy and trial
tactics are granted wide latitude of professional judgment, and it is not the duty of a
reviewing court to analyze trial counsel's legal tactics and maneuvers. State v. Quinones,
8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶18.” State v. Timm, 5th Dist. Delaware
No. 21-CAA-11-0060, 2023-Ohio-3768, ¶29.
{¶37} A defendant's failure to satisfy one prong of the Strickland test negates a
court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at
699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
{¶38} In this case, Appellant argues counsel was ineffective in (1) failing to
challenge the composition of the jury pool, (2) failing to provide notice of intent to claim
self-defense, and (3) failing to ask the defense witness additional questions on redirect.
Jury Pool
{¶39} Appellant, who is African-American, argues that only one African-American
juror was on the venire, and that juror was ultimately excused for cause by both parties
due to the juror’s health and financial burden. Appellant argues that the jury panel failed Stark County, Case No. 2023 CA 00042 11
to reflect a cross-section of the community, and counsel should have objected to the
composition.
{¶40} The Sixth Amendment guarantee to a jury trial contemplates a jury drawn
from a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 527-529,
95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To establish a violation of this requirement, the
“defendant must prove: (1) that the group alleged to be excluded is a ‘distinctive’ group in
the community; (2) that the representation of this group in venires from which juries are
selected is not fair and reasonable in relation to the number of such persons in the
community; and (3) that the representation is due to systematic exclusion of the group in
the jury-selection process.” State v. Fulton, 57 Ohio St.3d 120, 566 N.E.2d 1195 (1991),
paragraph two of the syllabus, citing Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664,
668, 58 L.Ed.2d 579, 586–587 (1979).
{¶41} In this case, other than defense counsel's personal observation that the
venire appeared imbalanced, Appellant failed to produce any evidence demonstrating
that African–Americans were underrepresented on the venire in relation to their
percentage in the community. There is no evidence in the record whatsoever as to the
race of the persons in the venire or on the master list of potential jurors, cognizable for
purposes of the fair cross-section requirement. State v. Seymour, 5th Dist. Richland No.
03-CA-37, 2004-Ohio-3835, 2004 WL 1614891, ¶54, citing United States v. Maxwell, 160
F.3d 1071, 1075-76 (6th Cir. 1998); United States v. Fletcher, 965 F.2d 781, 782 (9th Cir.
1992); Ford v. Seabold, 841 F.2d 677, 681-82 (6th Cir. 1988), cert. denied, 488 U.S. 928,
109 S.Ct. 315, 102 L.Ed.2d 334 (1988). Stark County, Case No. 2023 CA 00042 12
{¶42} More importantly, Appellant has not produced any evidence of the
systematic exclusion of African–Americans from the process used to draw jurors in Stark
County.
{¶43} Finally, we note that Appellant's claim is based solely on alleged under-
representation on his venire; however, underrepresentation on a single venire is not
systematic exclusion. State v. McNeill, 83 Ohio St.3d 438, 444, 700 N.E.2d 596 (1998).
{¶44} Additionally, both Appellant and the victim in this case are African-
American, and race was never raised or implied as an issue.
{¶45} Appellant has also failed to show a reasonable probability that the result of
trial would have been different.
{¶46} For these reasons, Appellant's claims regarding the makeup of the venire
on the basis of race lacks merit.
Self-defense
{¶47} Appellant argues that counsel was ineffective by failing to provide written
notice of intent to present evidence of self-defense, pursuant to Crim.R. 12.2.
{¶48} Upon review, we find that while the trial court did cite the Crim.R. 12.2
requirement, it also found that Appellant had not presented sufficient evidence to support
a self-defense instruction, namely that he failed to show that he had any reason to believe
that he was in imminent danger of serious bodily harm or death or how his injuries were
caused.
{¶49} We also find that Appellant herein was not entitled to a self-defense
instruction. Appellant did not take the stand to assert self-defense or provide any evidence
of self-defense at trial. While a defendant does not need to testify to be entitled to a self- Stark County, Case No. 2023 CA 00042 13
defense instruction, there must be evidence, however, to support the instruction. State v.
McDade, 113 Ohio App. 397, 404, 178 N.E.2d 824 (1959) (“The evidence of self-defense
may come wholly from the state....”).
{¶50} Based on the testimony produced at trial, Appellant was not entitled to an
instruction on self-defense because all of these elements were not presented. As the
evidence does not support the instruction, defense counsel's failure to request such
instruction does not fall below the standard of reasonableness. As such, Appellant is
unable to satisfy the first prong of Strickland.
Witness
{¶51} Appellant argues that trial counsel should have asked questions of
Appellant’s mother on redirect with regard to the injuries she observed on Appellant’s
hands.
{¶52} Upon review, we find that since Mrs. McNair was not present at the scene,
it is unlikely that she would have been able to explain how Appellant received his injuries
or aid further in his claims of self-defense.
{¶53} Further, defense attorney's decision at trial regarding whether to conduct
redirect examination of a witness, and the extent of the questioning, is a tactical choice.
See State v. Likosar, 9th Dist. Medina No. 03CA0063-M, 2004-Ohio-114, 2004 WL
57467, ¶26; State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶123.
Hence, whether further questioning of a witness would have unearthed any useful
information is a matter for speculation only. State v. Foust, 105 Ohio St.3d 137, 2004-
Ohio-7006, 823 N.E.2d 836, ¶125. Speculation is insufficient to establish the requisite
prejudice in an ineffective assistance of counsel claim. State v. Peterson, 9th Dist. Summit Stark County, Case No. 2023 CA 00042 14
No. 23434, 2007-Ohio-2091, 2007 WL 1264202, ¶8. Further, vague speculation by an
appellant as to what he would have said if called to testify, and how that would have
affected the jury's verdict, is insufficient to establish ineffective assistance of counsel.
State v. Wiley, 10th Dist. Franklin No. 03AP-340, 2004-Ohio-1008, 2004 WL 396767, ¶30,
citing State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373 (1989).
{¶54} Upon review of Appellant's arguments and the applicable law, we find he
has not met the burden of demonstrating that his trial counsel was ineffective or that he
was prejudiced by the alleged errors.
{¶55} Appellant’s second assignment of error is denied.
III.
{¶56} In his third assignment of error, Appellant argues the trial court erred in
imposing the maximum sentence. We disagree.
{¶57} A court reviewing a criminal sentence is required by R.C. §2953.08(F) to
review the entire trial court record, including any oral or written statements and
presentence investigation reports. R.C. §2953.08(G)(2) provides this Court may either
increase, reduce, modify, or vacate a sentence and remand for resentencing where we
clearly and convincingly find that 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(I), or the
sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.2d 659, ¶28.
{¶58} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in Stark County, Case No. 2023 CA 00042 15
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶59} 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. Morris, 5th Dist. Ashland No.
20-COA-015, ¶90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and
CA2019-03-026, 2019-Ohio-4209, ¶36.
{¶60} The trial court must consider the purposes and factors contained in R.C.
§2929.11 and §2929.12, but this Court has held that when the transcript of “the
sentencing hearing is silent as to whether the trial court considered the factors in R.C.
2929.11 and 2929.12”, a presumption arises “that a trial court considered the factors
contained in R.C. 2929.12.” State v. Hannah, 5th Dist. Richland No. 15-CA-1, 2015-Ohio-
4438, ¶13. Accord State v. Tenney, 11th Dist. Ashtabula No. 2009-A-0015, 2010-Ohio-
6248, 2010 WL 5289110, ¶14 and State v. Crawford, 5th Dist. Muskingum No. CT2021-
0059, 2022-Ohio-3125, ¶18.
ANALYSIS
{¶61} This Court may modify Appellant’s sentence only if it “clearly and
convincingly finds that 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(I), or the sentence
is otherwise contrary to law.” Stark County, Case No. 2023 CA 00042 16
{¶62} Appellant herein does not argue that R.C. §2929.13(B) or (D),
§2929.14(B)(2)(e) or (C)(4), or §2929.20(I) apply, so we are restricted to consideration of
whether the sentence is clearly and convincingly otherwise contrary to law.
{¶63} Initially, we note that the sentence imposed by the trial court is within the
statutory guidelines, and Appellant does not assert a position to the contrary. Instead,
Appellant contends that the trial court imposed a maximum sentence that fails to comply
with the guidelines of R.C. §2929.11 or §2929.12 and that we should reverse the sentence
on that basis.
{¶64} Appellant is requesting that we act in a manner that has been prohibited by
the Supreme Court of Ohio in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649 where the Court clearly stated that R.C. §2953.08(G)(2) does not permit “an
appellate court to modify or vacate a sentence based on its view that the sentence is not
supported by the record under R.C. 2929.11 and 2929.12.”
{¶65} Appellant acknowledges that Jones is controlling and asks that we
disregard it. However, we “are bound to follow the law and decisions of the Ohio Supreme
Court, unless or until they are reversed or overruled. State v. Lenior, 5th Dist. Delaware
No. 10CAA010011, 2010-Ohio-4910, 2010 WL 3921188; Phillips v. Phillips, 5th Dist.,
2014-Ohio-5439, 25 N.E.3d 371.” Wendt v. Dickerson, 5th Dist. No. 2017 AP 08 0024,
2018-Ohio-1034, 108 N.E.3d 1174, ¶30. We are therefore obligated to adhere to the
decision in Jones and to reject Appellant’s request. Stark County, Case No. 2023 CA 00042 17
{¶66} Appellant’s third assignment of error is overruled.
{¶67} For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas, Stark County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
King, J., concur.
JWW/kw 0111