State v. Pack

2018 Ohio 4632

• Court: Ohio Court of Appeals
• Decided: November 16, 2018
• Docket: 2018-CA-52
• Status: Published

Opinion

[Cite as State v. Pack, 2018-Ohio-4632.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-52 : v. : Trial Court Case No. 2017-CR-0647 : WARREN PACK : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 16th day of November, 2018.

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327 Attorney for Defendant-Appellant

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WELBAUM, P.J. -2-

{¶ 1} Defendant-appellant, Warren Pack, appeals from the 30-month prison

sentence he received in the Clark County Court of Common Pleas after he pled guilty to

one count of aggravated trafficking in drugs. In support of his appeal, Pack claims his

sentence was contrary to law because it was not supported by the record and was

excessive in light of his minimal criminal history and eligibility for community control

sanctions. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On October 24, 2017, Pack was indicted for one count of aggravated

trafficking in drugs and one count of aggravated possession of drugs, both felonies of the

third degree. Following his indictment, Pack entered a plea agreement and pled guilty

to the charge of aggravated trafficking in drugs in exchange for the State dismissing the

charge of aggravated possession of drugs. At the plea hearing, the trial court accepted

Pack’s guilty plea, ordered a presentence investigation report (“PSI”), and scheduled the

matter for a sentencing hearing. At the sentencing hearing, the trial court indicated that

it had reviewed the PSI, Pack’s sentencing memorandum, and the letters submitted on

Pack’s behalf. After allowing both parties to address the court, the trial court sentenced

Pack to 30 months in prison.

{¶ 3} Pack now appeals from the 30-month prison sentence and raises one

assignment of error for review.

Assignment of Error -3-

{¶ 4} Pack’s sole assignment of error is as follows:

APPELLANT’S 30[-]MONTH PRISON SENTENCE IS CONTRARY TO LAW.

{¶ 5} Under his single assignment of error, Pack contends his 30-month prison

sentence was contrary to law because it was not supported by the record and was

excessive in light of his minimal criminal history and eligibility for community control

sanctions. We disagree with Pack’s claims.

{¶ 6} As a preliminary matter, we note that appellate courts are required to review

felony sentences under the standard of review set forth in R.C. 2953.08(G)(2). State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. R.C. 2953.08(G)(2)

provides that:

The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s

standard for review is not whether the sentencing court abused its

discretion. The appellate court may take any action authorized by this

division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,

if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 7} Pursuant to the plain language of R.C. 2953.08(G)(2), this court may vacate

or modify Pack’s sentence only if it “determines by clear and convincing evidence that the -4-

record does not support the trial court’s findings under relevant statutes or that the

sentence is otherwise contrary to law.” Marcum at ¶ 1. This is a very deferential

standard of review, as the question is not whether the trial court had clear and convincing

evidence to support its findings, but rather, whether we clearly and convincingly find that

the record fails to support the trial court’s findings. State v. Rodeffer, 2013-Ohio-5759,

5 N.E.3d 1069, ¶ 31 (2d Dist.), citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453,

¶ 21 (8th Dist.).

{¶ 8} In this case, the trial court was not required to make any findings under the

“relevant statutes” listed in R.C. 2953.08(G)(2)(a). Although the trial court could have

made findings under R.C. 2929.13(D) to overcome the presumption that a prison term

was necessary for Pack’s offense, see R.C. 2925.03 (C)(1)(c), the trial court instead

chose to sentence Pack to prison and, therefore, was not required to make any such

findings. Since no findings were made under the relevant statutes listed in R.C.

2953.08(G)(2)(a), the pertinent issue is whether Pack’s 30-month prison sentence was

clearly and convincingly contrary to law.

{¶ 9} “In general, a sentence is not contrary to law when it is within the authorized

statutory range and the trial court states that it has considered the principles and purposes

of sentencing [set forth in R.C. 2929.11] and the seriousness and recidivism factors [set

forth in R.C. 2929.12].” (Citation omitted.) State v. Bradley, 2d Dist. Greene No. 2017-

CA-64, 2018-Ohio-3192, ¶ 5. “The trial court has full discretion to impose any sentence

within the authorized statutory range, and the court is not required to make any findings

or give its reasons for imposing maximum or more than minimum sentences.” State v.

Fyffe, 2018-Ohio-112, 109 N.E.3d 51, ¶ 31 (2d Dist.), quoting State v. King, 2013-Ohio- -5-

2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

{¶ 10} However, in exercising its discretion, a trial court must consider the statutory

policies set out in R.C. 2929.11 and R.C. 2929.12. State v. Castle, 2016-Ohio-4974, 67

N.E.3d 1283, ¶ 26 (2d Dist.). A defendant’s sentence is not contrary to law when the

trial court expressly states in its sentencing entry that it has considered the principles and

purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in

R.C. 2929.12, but neglects to mention those statutes at the sentencing hearing. State v.

Battle, 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State v. Miller, 2d Dist.

Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. Even if there is no specific mention of R.C.

2929.11 or R.C. 2929.12 in the record, it is presumed that the trial court gave proper

consideration to those statutes. State v. English, 2d Dist. Montgomery No. 26337, 2015-

Ohio-1665, ¶ 22.

{¶ 11} In this case, the 30-month prison sentence imposed by the trial court was

within the authorized statutory range. See R.C. 2929.14(A)(3)(b). In addition, the trial

court expressly stated in its sentencing entry that it had “considered the * * * principles

and purposes of sentencing under [R.C. 2929.11], and then balanced the seriousness

and recidivism factors under [R.C. 2929.12].” Judgment Entry of Conviction (Apr. 11,

2018), Clark C.P. No. 2017-CR-647, Docket No. 23, p. 1. Therefore, contrary to Pack’s

claim otherwise, Pack’s 30-month prison sentence was not clearly and convincingly

contrary to law.

{¶ 12} “[A]n appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” Marcum, 146 Ohio St.3d 516, -6-

2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Again, this is a very deferential standard of

review. If the record does not contain evidence from which we can determine that the

sentence was clearly and convincingly improper, then we are without authority to vacate

it. In turn, the record must contain substantial affirmative factual information in support

of the defendant to conclude that the trial court’s sentencing decision was in error. See

State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 40 (2d Dist.).

{¶ 13} After a thorough review, we do not find by clear and convincing evidence

that the record fails to support the trial court’s sentencing decision, as the record reveals

that Pack has a history of drug-related offenses. Specifically, the PSI indicated that on

two separate occasions in 2005, Pack was convicted of wrongful use of cocaine while he

was serving in the United States Army, which ultimately resulted in Pack being discharged

from service under other than honorable conditions. The PSI also established that in

January 2018, Pack was convicted of third-degree-felony aggravated possession of drugs

in Montgomery County, Ohio, for which Pack received community control sanctions.

{¶ 14} The PSI further indicated that at the time of his sentencing hearing in this

case, Pack had additional charges for aggravated possession of drugs, illegal

manufacturing of drugs, trafficking in drugs, and illegal use of supplemental benefits

pending before the Montgomery County Grand Jury. In addition, Pack was convicted of

disorderly conduct in 2012, for which he completed one year of probation. The PSI also

indicated that Pack had a juvenile record for committing a crime that would have been

charged as a misdemeanor if he had committed it as an adult. We also note that Pack

received a moderate risk of recidivism score on the Ohio Risk Assessment System.

{¶ 15} Although Pack’s criminal history is not extensive and the record indicates -7-

that Pack suffers from depression and post-traumatic stress disorder as a result of serving

in the military, we cannot say the record contains clear and convincing evidence that the

30-month prison sentence was improper. Rather, the record indicates that Pack has not

responded favorably to previous sanctions and that Pack has chosen to continue down a

criminal path by engaging in further drug-related activity.

{¶ 16} The fact that this court may have imposed a lesser sentence under the

circumstances is irrelevant, for it is well established that “ ‘appellate courts are prohibited

from substituting their judgment for that of the trial judge.’ ” (Emphasis omitted.)

Withrow, 2016-Ohio-2884, 64 N.E.3d 553, at ¶ 37, quoting State v. Overholser, 2d Dist.

Clark No. 2014-CA-42, 2015-Ohio-1980, ¶ 38 (Welbaum, J., dissenting). Simply stated,

the trial court’s sentence should not be disturbed unless the record overwhelming

supports a contrary result, and that is simply not the case here. See id. at ¶ 39.

{¶ 17} For the foregoing reasons, Pack’s assignment of error is overruled.

Conclusion

{¶ 18} Having overruled Pack’s sole assignment of error, the judgment of the trial

court is affirmed.

FROELICH, J., concurs in judgment only.

TUCKER, J., concurs. -8-

Copies sent to:

Andrew P. Pickering Kirsten Knight Hon. Douglas M. Rastatter