[Cite as State v. Mullins, 2024-Ohio-421.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230320 TRIAL NO. B-2205078 Plaintiff-Appellee, :
: VS. O P I N I O N. :
KEIONTAL D. MULLINS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 7, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Following his six-year-old stepson’s bathroom mishap at school,
defendant-appellant Keiontal Mullins forced the child into scalding water,
significantly burning the child’s legs, buttocks, and genitals. Mr. Mullins eventually
pleaded guilty to felonious assault and requested a two-year sentence. The state
requested a five-year sentence. And the trial court ultimately imposed an indefinite
sentence of five to seven and a half years. Mr. Mullins now appeals, challenging the
length of his sentence as unsupported by the record and maintaining that his due
process rights were violated at his sentencing hearing. Because the trial court
appropriately considered the mitigating factors and did not improperly consider
allegations of other crimes, we reject his arguments and affirm the trial court’s
judgment.
I.
{¶2} In October 2022, following his stepson’s bathroom incident, Mr.
Mullins picked up the child from school. When they arrived home, he forced the child
into a bathtub containing scalding water. The child suffered significant burns to the
lower portion of his body, including his legs, buttocks, and genitals.
{¶3} Mr. Mullins was subsequently indicted on two counts, both felonies of
the second degree: felonious assault, in violation of R.C. 2903.11(A)(1), and child
endangering, in violation of R.C. 2919.22(B)(1). Rather than go to trial, he pleaded
guilty to felonious assault in exchange for the dismissal of the child endangerment
charge. There was no agreement on a recommended sentence: Mr. Mullins requested
a two-year sentence, while the state advocated for five years. Ultimately, the trial court
2 OHIO FIRST DISTRICT COURT OF APPEALS
accepted Mr. Mullins’s guilty plea and imposed a prison sentence of five to seven and
a half years. He now appeals.
II.
{¶4} In his first assignment of error, Mr. Mullins challenges his five-to-
seven-and-a-half-year indefinite sentence, contending the statutory guidelines and
sentencing factors for felony sentencing as applied to this case do not support the
imposition of a five-year sentence. “Pursuant to R.C. 2953.08(G)(2), an appellate
court in Ohio may vacate or modify a felony sentence only if it clearly and convincingly
finds that the record ‘does not support the sentencing court’s findings under [relevant
statutes]’ or ‘the sentence is otherwise contrary to law.’ ” State v. Shaw, 1st Dist.
Hamilton No. C-230089, 2023-Ohio-3230, ¶ 5, quoting State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9.
{¶5} “The Ohio Supreme Court has held that ‘R.C. 2953.08(G)(2)(a) clearly
does not provide a basis for an appellate court to modify or vacate a sentence if it
concludes that the record does not support the sentence under R.C. 2929.11 and
2929.12 because [those statutes] are not among the statutes listed in the provision.’ ”
State v. Harris, 1st Dist. Hamilton No. C-220584, 2023-Ohio-2076, ¶ 6, quoting State
v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31. And because
“R.C. 2929.11 and 2929.12 are not fact-finding statutes, * * * absent an affirmative
demonstration to the contrary, we presume that the trial court considered them.”
State v. Illing, 1st Dist. Hamilton No. C-220166, 2022-Ohio-4266, ¶ 26, citing State v.
Mimes, 1st Dist. Hamilton No. C-200122, 2021-Ohio-2494, ¶ 9.
{¶6} Although he acknowledges that the trial court’s sentence fell within the
permissible range (and thus is not contrary to law), Mr. Mullins claims that the trial
3 OHIO FIRST DISTRICT COURT OF APPEALS
court failed to consider the purposes of felony sentencing (under R.C. 2929.11) and the
appropriate seriousness and recidivism factors (under R.C. 2929.12). To support these
claims, he emphasizes various mitigating factors such as his limited adult criminal
record (and no felony convictions or offenses of violence), lack of likelihood of
recurrence of circumstances under which the offense was committed, expressed
remorse, no history of drug use, and overall low risk of recidivism.
{¶7} But he fails to affirmatively demonstrate that the trial court did not
consider these factors. And the record indicates the contrary. Defense counsel offered
mitigating evidence of his remorse, lack of violent criminal history, and responsibility
taken for the crime. The trial court noted that it considered these factors: “When
considering the appropriate sentence in this case, I do look at all of the criteria that I
am to follow and the factors for sentencing * * * And being guided by all of this, I also
have to consider what is the appropriate sentence, but not too severe a sentence.”
{¶8} Even with his guilty plea, he still faced a potential sentence of eight years
in prison. As evidenced by the imposition of a sentence of five years in prison instead
of some greater amount, the trial court considered the purposes and principles of
sentencing as well as mitigating factors. And had he not pleaded guilty, the state would
likely not have dropped the child endangerment charge.
{¶9} For the reasons discussed above, we overrule Mr. Mullins’s first
assignment of error.
III.
{¶10} Mr. Mullins next maintains that the trial court violated his due process
rights at his sentencing hearing by considering testimony regarding uncharged
additional instances of abuse without indicia of reliability as to the allegations. As an
4 OHIO FIRST DISTRICT COURT OF APPEALS
initial matter, he failed to object to the testimony during his sentencing hearing,
forfeiting all but plain error review. Crim.R. 52(B) (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.”). And this court only reverses a trial court’s judgment based on plain error
“under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶11} To reverse on plain error, he “must show that an error occurred, that the
error was plain, meaning ‘obvious,’ and that the error affected his ‘substantial rights,’
meaning it ‘affected the outcome of the trial.’ ” State v. Sowders, 1st Dist. Hamilton
No. C-230153, 2023-Ohio-4498, ¶ 11, quoting State v. Barnes, 94 Ohio St.3d 21, 27,
2002-Ohio-68, 759 N.E.2d 1240; Crim.R. 52(B). And “[t]o show the error affected the
outcome, the law requires the defendant ‘demonstrate [] a reasonable probability that
but for [the error], the outcome of the trial would have been different.’ ” Id., quoting
State v. Mounts, 1st Dist. Hamilton No.
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[Cite as State v. Mullins, 2024-Ohio-421.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230320 TRIAL NO. B-2205078 Plaintiff-Appellee, :
: VS. O P I N I O N. :
KEIONTAL D. MULLINS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 7, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Following his six-year-old stepson’s bathroom mishap at school,
defendant-appellant Keiontal Mullins forced the child into scalding water,
significantly burning the child’s legs, buttocks, and genitals. Mr. Mullins eventually
pleaded guilty to felonious assault and requested a two-year sentence. The state
requested a five-year sentence. And the trial court ultimately imposed an indefinite
sentence of five to seven and a half years. Mr. Mullins now appeals, challenging the
length of his sentence as unsupported by the record and maintaining that his due
process rights were violated at his sentencing hearing. Because the trial court
appropriately considered the mitigating factors and did not improperly consider
allegations of other crimes, we reject his arguments and affirm the trial court’s
judgment.
I.
{¶2} In October 2022, following his stepson’s bathroom incident, Mr.
Mullins picked up the child from school. When they arrived home, he forced the child
into a bathtub containing scalding water. The child suffered significant burns to the
lower portion of his body, including his legs, buttocks, and genitals.
{¶3} Mr. Mullins was subsequently indicted on two counts, both felonies of
the second degree: felonious assault, in violation of R.C. 2903.11(A)(1), and child
endangering, in violation of R.C. 2919.22(B)(1). Rather than go to trial, he pleaded
guilty to felonious assault in exchange for the dismissal of the child endangerment
charge. There was no agreement on a recommended sentence: Mr. Mullins requested
a two-year sentence, while the state advocated for five years. Ultimately, the trial court
2 OHIO FIRST DISTRICT COURT OF APPEALS
accepted Mr. Mullins’s guilty plea and imposed a prison sentence of five to seven and
a half years. He now appeals.
II.
{¶4} In his first assignment of error, Mr. Mullins challenges his five-to-
seven-and-a-half-year indefinite sentence, contending the statutory guidelines and
sentencing factors for felony sentencing as applied to this case do not support the
imposition of a five-year sentence. “Pursuant to R.C. 2953.08(G)(2), an appellate
court in Ohio may vacate or modify a felony sentence only if it clearly and convincingly
finds that the record ‘does not support the sentencing court’s findings under [relevant
statutes]’ or ‘the sentence is otherwise contrary to law.’ ” State v. Shaw, 1st Dist.
Hamilton No. C-230089, 2023-Ohio-3230, ¶ 5, quoting State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9.
{¶5} “The Ohio Supreme Court has held that ‘R.C. 2953.08(G)(2)(a) clearly
does not provide a basis for an appellate court to modify or vacate a sentence if it
concludes that the record does not support the sentence under R.C. 2929.11 and
2929.12 because [those statutes] are not among the statutes listed in the provision.’ ”
State v. Harris, 1st Dist. Hamilton No. C-220584, 2023-Ohio-2076, ¶ 6, quoting State
v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31. And because
“R.C. 2929.11 and 2929.12 are not fact-finding statutes, * * * absent an affirmative
demonstration to the contrary, we presume that the trial court considered them.”
State v. Illing, 1st Dist. Hamilton No. C-220166, 2022-Ohio-4266, ¶ 26, citing State v.
Mimes, 1st Dist. Hamilton No. C-200122, 2021-Ohio-2494, ¶ 9.
{¶6} Although he acknowledges that the trial court’s sentence fell within the
permissible range (and thus is not contrary to law), Mr. Mullins claims that the trial
3 OHIO FIRST DISTRICT COURT OF APPEALS
court failed to consider the purposes of felony sentencing (under R.C. 2929.11) and the
appropriate seriousness and recidivism factors (under R.C. 2929.12). To support these
claims, he emphasizes various mitigating factors such as his limited adult criminal
record (and no felony convictions or offenses of violence), lack of likelihood of
recurrence of circumstances under which the offense was committed, expressed
remorse, no history of drug use, and overall low risk of recidivism.
{¶7} But he fails to affirmatively demonstrate that the trial court did not
consider these factors. And the record indicates the contrary. Defense counsel offered
mitigating evidence of his remorse, lack of violent criminal history, and responsibility
taken for the crime. The trial court noted that it considered these factors: “When
considering the appropriate sentence in this case, I do look at all of the criteria that I
am to follow and the factors for sentencing * * * And being guided by all of this, I also
have to consider what is the appropriate sentence, but not too severe a sentence.”
{¶8} Even with his guilty plea, he still faced a potential sentence of eight years
in prison. As evidenced by the imposition of a sentence of five years in prison instead
of some greater amount, the trial court considered the purposes and principles of
sentencing as well as mitigating factors. And had he not pleaded guilty, the state would
likely not have dropped the child endangerment charge.
{¶9} For the reasons discussed above, we overrule Mr. Mullins’s first
assignment of error.
III.
{¶10} Mr. Mullins next maintains that the trial court violated his due process
rights at his sentencing hearing by considering testimony regarding uncharged
additional instances of abuse without indicia of reliability as to the allegations. As an
4 OHIO FIRST DISTRICT COURT OF APPEALS
initial matter, he failed to object to the testimony during his sentencing hearing,
forfeiting all but plain error review. Crim.R. 52(B) (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.”). And this court only reverses a trial court’s judgment based on plain error
“under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶11} To reverse on plain error, he “must show that an error occurred, that the
error was plain, meaning ‘obvious,’ and that the error affected his ‘substantial rights,’
meaning it ‘affected the outcome of the trial.’ ” State v. Sowders, 1st Dist. Hamilton
No. C-230153, 2023-Ohio-4498, ¶ 11, quoting State v. Barnes, 94 Ohio St.3d 21, 27,
2002-Ohio-68, 759 N.E.2d 1240; Crim.R. 52(B). And “[t]o show the error affected the
outcome, the law requires the defendant ‘demonstrate [] a reasonable probability that
but for [the error], the outcome of the trial would have been different.’ ” Id., quoting
State v. Mounts, 1st Dist. Hamilton No. C-210608, 2023-Ohio-3861, ¶ 48-52
(synthesizing recent Supreme Court of Ohio plain error cases).
{¶12} With the plain error standard guiding our analysis, we turn to the
contested testimony. During the sentencing hearing, the child’s grandmother,
grandfather, and uncle offered victim impact testimony. Throughout the testimony,
the child’s relatives referenced other instances of alleged child abuse. For example,
the child’s grandmother referenced other suspicious incidents—inferring Mr.
Mullins’s involvement—including when the child broke a tooth and when he had to get
stiches on his chin. The child’s grandfather also implied Mr. Mullins was involved with
other instances of child abuse: “Like my wife stated, there has been bruises and cuts
on his body since those two were together that are unexplainable. My daughter cannot
5 OHIO FIRST DISTRICT COURT OF APPEALS
tell me what happened. [Mr. Mullins] cannot tell me what happened.” And the child’s
uncle later added, “Considering all of the escalation, the things that have happened,
Children’s kept a list of things. So, there is a plethora of things that we probably don’t
know about what has happened to him.”
{¶13} Generally, as Mr. Mullins acknowledges, a trial court may consider
allegations of uncharged criminal conduct when sentencing a defendant. State v.
Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-1529, ¶ 26 (“As this court has
previously held, uncharged criminal conduct can be considered by the court during
sentencing so long as it is not the ‘sole basis’ for the sentence.”). And, under certain
circumstances, hearsay statements are admissible in an Ohio trial court’s sentencing
determination. State v. Fissel, 1st Dist. Hamilton No. C-210483, 2022-Ohio-1856, ¶
7. But to satisfy due process standards, such hearsay statements must be reliable—
they must bear “ ‘ “sufficient indicia of reliability to support [their] probable accuracy”
’ ” or “ ‘ “a reasonable probability that [they are] true.” ’ ” Id., quoting State v. Phillips,
12th Dist. Madison No. CA2003-03-012, 2004-Ohio-2301, ¶ 7, quoting State v. Lee,
128 Ohio App.3d 710, 719, 716 N.E.2d 751 (1st Dist.1998), fn. 4.
{¶14} Because the plain error standard guides our analysis, however, even if
the evidence lacked sufficient indica of reliability, Mr. Mullins must demonstrate a
reasonable probability that but for the admission of the hearsay statements, the
outcome of the sentencing hearing would have been different. He fails to do so. The
trial court explicitly stated that it did not consider any of these statements in arriving
at its sentence: “I completely understand that the grandparents feel there has been a
history of child abuse. That is not before me and I’m not allowed to consider that,
6 OHIO FIRST DISTRICT COURT OF APPEALS
because he is only convicted of one crime. This crime. And that is the reason why I am
not giving him the maximum.”
{¶15} And he fails to identify any evidence in the record undermining this
statement, arguing only that the statements “certainly” negatively impacted the
sentencing court. Without any evidence from the record supporting this allegation, he
is unable to demonstrate that the evidence affected the sentence imposed.
{¶16} Accordingly, we overrule Mr. Mullins’s second assignment of error.
* * *
{¶17} In light of the foregoing analysis, we overrule both assignments of error
and affirm the judgment of the trial court.
Judgment affirmed. BOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.