State v. Norris

2024 Ohio 2964

• Court: Ohio Court of Appeals
• Decided: August 2, 2024
• Docket: CT2024-0001
• Status: Published

Opinion

[Cite as State v. Norris, 2024-Ohio-2964.]

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. Craig R. Baldwin, J. -vs- Case No. CT2024-0001 CORY NORRIS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023- 0303

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 2, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH, ESQ. CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road Muskingum County, Ohio Thornville, Ohio 43076

JOSEPH A. PALMER Assistant Prosecuting Attorney 27 North Fifth Street Zanesville, Ohio 43701 Muskingum County, Case No. CT2024-0001 2

Hoffman, J. {¶1} Defendant-appellant Cory A. Norris appeals the judgment entered by the

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

domestic violence (R.C. 2919.25(A)) and attempted disrupting public services (R.C.

2923.02, 2909.04(A)(1)), and sentencing him to an aggregate term of incarceration of

thirty months. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 5, 2023, the victim and her friend were at a bar in Muskingum

County, Ohio. The victim and Appellant previously lived together, and shared two

children. Appellant arrived at the bar, and was upset to find the victim there. He asked

to see her outside the bar, where they discussed her moving out of the house. Appellant

and the victim then went back inside the bar.

{¶3} When the victim and her friend left the bar later, Appellant came up from

behind the victim and knocked her to the ground. The victim attempted to call 911, but

Appellant tried to prevent her from doing so. After the victim and Appellant were

physically separated, the victim called 911.

{¶4} Appellant was indicted by the Muskingum County Grand Jury with robbery,

domestic violence as a felony of the fourth degree based on a prior conviction, bribery,

attempted tampering with evidence, and attempted disrupting public services. The State

dismissed the charges of robbery, bribery, and attempted tampering with evidence, and

Appellant pled guilty to the charges of domestic violence and attempted disrupting public

services. The trial court sentenced Appellant to eighteen months incarceration for

domestic violence and twelve months incarceration for attempted disrupting public

services, to be served consecutively for an aggregate term of incarceration of thirty Muskingum County, Case No. CT2024-0001 3

months. It is from the December 1, 2023 judgment of the trial court Appellant prosecutes

his appeal, assigning as error:

I. SHOULD THIS COURT REVERSE THE TRIAL COURT’S

DECISION TO IMPOSE A MAXIMUM SENTENCE FOR COUNT 2,

DOMESTIC VIOLENCE (F4) AND A MAXIMUM SENTENCE ON COUNT

5 ATTEMPTED DISRUPTING PUBLIC SERVICES (F5), AND A TOTAL

SENTENCE OF 30 MONTHS; BECAUSE, THE SENTENCE WAS IN

CONTRAVENTION OF THE SENTENCING STATUTES R.C. §2929.11

AND R.C. §2929.12?

II. SHOULD THIS COURT REVERSE THE TRIAL COURT’S

DECISION TO IMPOSE CONSECUTIVE SENTENCES BETWEEN

COUNTS 2 AND 5; BECAUSE, THE DECISION WAS IN

CONTRAVENTION OF R.C. §2929.14(C)(4)?

I.

{¶5} In his first assignment of error, Appellant argues the trial court’s imposition

of the maximum sentence on each count was in violation of the principles set forth in R.C.

2929.11 and R.C. 2929.12. He argues the victim suffered only minor injuries and the

incident was limited in scope.

{¶6} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Roberts, 2020-Ohio-6722, ¶13 (5th Dist.), citing State v. Marcum, 2016-

Ohio-1002. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or Muskingum County, Case No. CT2024-0001 4

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, 2014-Ohio-3177.

{¶7} 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, 2013-Ohio-5025, ¶ 7 (8th Dist.).

{¶8} “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).

{¶9} 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 Muskingum County, Case No. CT2024-0001 5

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

{¶10} 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, 2020-Ohio-6729, ¶ 42. Instead, we may only determine if the

sentence is contrary to law.

{¶11} 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, 2021-Ohio-1512, ¶¶ 14-16 (5th

Dist.).

{¶12} The trial court stated in its judgment entry it considered the principles and

purposes of sentencing under R.C. 2929.11 and the balance of seriousness and

recidivism factors pursuant to R.C. 2929.12. The sentence is within the statutory range.

Pursuant to Jones, supra, this Court is not permitted 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. We find

the sentences imposed on Appellant are not contrary to law.

{¶13} The first assignment of error is overruled. Muskingum County, Case No. CT2024-0001 6

II.

{¶14} In his second assignment of error, Appellant argues the trial court failed to

make the required statutory findings to impose consecutive sentences, and the imposition

of consecutive sentences is contrary to the record.

{¶15} 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:

(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. Muskingum County, Case No. CT2024-0001 7

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶16} 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. Bonnell, 2014-Ohio-3177, syllabus.

{¶17} The trial court made the following findings in its judgment entry:

Pursuant to ORC §2929.14(C)(4), the Court further found that the

imposition of consecutive sentences are necessary to protect the public

from future crime or to punish the Defendant, and that consecutive

sentences are not disproportionate to the seriousness of Defendant’s

conduct, and to the danger the Defendant poses to the public.

The Defendant’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

{¶18} Judgment Entry, December 1, 2023.

{¶19} At the sentencing hearing, the trial court stated: Muskingum County, Case No. CT2024-0001 8

Court does find consecutive sentences are necessary to protect the

public and punish this offender, and consecutive sentences are not

disproportionate to the seriousness of the conduct and the danger posed to

the public.

Additionally, history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime.

{¶20} Sent. Tr. 10.

{¶21} Appellant argues the trial court failed to find pursuant to R.C.

2929.14(C)(4)(b) the harm caused by the offenses was so severe or unusual that a single

prison term would not adequately reflect the seriousness of his conduct. However, the

trial court is only required to find one of the factors set forth in R.C. 2929.14(C)(4)(a)

through (c). Because the trial court found pursuant to subsection (c) Appellant’s history

of criminal conduct demonstrates consecutive sentences are necessary to protect the

public from future crime, the trial court was not required to make any findings pursuant to

subsection (b). We find the trial court made the required statutory findings.

{¶22} In deciding whether to impose consecutive sentencing, the trial court is to

consider the aggregate term of incarceration which will result from consecutive

sentencing. State v. Gwynne, 2022-Ohio-4607, ¶¶14-15. In Gwynne, the Ohio Supreme

Court clarified the standard of review this Court is to use on review of consecutive

sentences: Muskingum County, Case No. CT2024-0001 9

It is important to understand that the standards referenced above

have very specific meanings and fall into one of two categories—either a

standard of review or an evidentiary standard of proof. “Abuse of discretion,”

“clearly erroneous,” and “substantial evidence” are traditional forms of

appellate-court deference that are applied to a trial court's decisions. They

are standards of review that are applied by a reviewing court to certain

decisions that are made by a fact-finder. They are, in essence, screens

through which reviewing courts must view the original fact-finder's decision.

In contrast, “preponderance,” “clear and convincing,” and “beyond a

reasonable doubt” are evidentiary standards of proof. These standards

apply to a fact-finder's consideration of the evidence. R.C. 2953.08(G)(2)’s

requirement that appellate courts apply the clear-and-convincing standard

on review indicates that the legislature did not intend for appellate courts to

defer to a trial court's findings but to act as a second fact-finder in reviewing

the trial court's order of consecutive sentences.

In this role as a finder of fact, the appellate court essentially functions

in the same way as the trial court when imposing consecutive sentences in

the first instance. There are three key differences, however. The first

difference, which is discerned from the language of R.C. 2953.08(G)(2), is

that the appellate court is constrained to considering only the findings in

R.C. 2929.14(C)(4) that the trial court has actually made. In other words, a

reviewing court cannot determine for itself which of the three permissible

findings within R.C. 2929.14(C)(4)(a)-(c) might apply to satisfy the third Muskingum County, Case No. CT2024-0001 10

required finding for imposing consecutive sentences, as the trial court is

permitted to do. The second difference involves the standard of proof.

Whereas the trial court's standard of proof under R.C. 2929.14(C)(4) is a

preponderance of the evidence—i.e., that when considered as a whole, the

evidence demonstrates that the proposition of fact represented by the

finding is more likely true, or more probable, than not—an appellate court

applies a clear and convincing evidence standard of proof. And the third

difference is the inversion of the ultimate question before the court.

Whereas the trial court is tasked with determining whether the proposition

of fact represented by each finding is more likely—or more probably—true

than not, an appellate court's task is to determine whether it has a firm belief

or conviction that the proposition of fact represented by each finding is not

true on consideration of the evidence in the record.

Thus, when viewed in its proper context, the deference that a trial

court's consecutive-sentence findings receive comes from the language of

R.C. 2953.08(G)(2), which imposes a higher evidentiary standard to reverse

or modify consecutive sentences. It does not stem from any statutory

requirement that the appellate court defer to the trial court's findings when

considering whether reversal or modification is appropriate under R.C.

2953.08(G)(2).

{¶23} Id. at ¶¶20-22. Muskingum County, Case No. CT2024-0001 11

{¶24} The trial court noted at the November 29, 2023, sentencing hearing

Appellant last was released from prison in late 2020 or early 2021. The trial court set

forth Appellant’s past criminal history from the bench as follows:

THE COURT: Well, I’ll note, there’s a 2018 tampering with evidence.

You received 12 months. That was consecutive to 18 months for having a

weapon while under disability, carrying concealed weapon, improper

handling of a firearm in a motor vehicle. And the offense occurred while

you were on PRC. However, you didn’t plead guilty until I think PRC was

over. You weren’t sentenced to PRC time.

March of 2014, trafficking in drugs, a felony of the fourth degree.

Twelve-month prison sentence.

2000, failure to comply with an order, a felony of the fourth degree.

Placed on probation for three years. Failed to report on probation. PR – or

community control was revoked. Fourteen-month prison was imposed on

that case. Those were all Muskingum County.

Ross County, 2007, there was an F2 escape. 2006, in Ross County,

possession of cocaine, a felony of the second degree, tampering with

evidence, felony of the third degree. Five years in prison on that case.

July of ’03, trafficking in cocaine. Eleven-month prison sentence.

March of 2002, possession of cocaine. Eight-month prison

sentence. Muskingum County, Case No. CT2024-0001 12

Pickaway County, October of ’05, possession of cocaine, eight

months.

Criminal trespass, 2018, 2016, and 1998. Domestic violence, prior

convictions, 2018, 2016, 1998. Aggravated menacing, menacing, assault,

fleeing and eluding, possession of marijuana, drug abuse, disorderly

conduct, underage consumption, driving under suspension, and leaving the

scene of an accident.

{¶25} Sent. Tr. 8-9. Muskingum County, Case No. CT2024-0001 13

{¶26} We find the record detailing Appellant’s extensive criminal history supports

the trial court’s imposition of consecutive sentences in the instant case. The second

assignment of error is overruled.

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

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