State v. Phillips

2021 Ohio 2772

• Court: Ohio Court of Appeals
• Decided: August 12, 2021
• Docket: 110148
• Status: Published

Opinion

[Cite as State v. Phillips, 2021-Ohio-2772.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110148 v. :

RUSSELL J. PHILLIPS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 12, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-626391-B and CR-18-626633-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Eamonn McDermott, Assistant Prosecuting Attorney, for appellee.

Allison F. Hibbard, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Russell Phillips, appeals his sentences following

guilty pleas in two cases. For the reasons that follow, we affirm.

In Cuyahoga C.P. No. CR-18-626391-B, Phillips was named in a 20-

count indictment along with his codefendants, Donna Ashcraft and Nicholas Frye. He was charged with six counts each of burglary and grand theft, three counts of

theft, and one count each of safecracking, petty theft, engaging in a pattern of

corrupt activity, and possessing criminal tools. In Cuyahoga C.P. No. CR-18-

626633-B, Phillips was named in a 13-count indictment along with codefendant

Frye. He was charged with seven counts of burglary, three counts of petty theft, two

counts of grand theft, and one count of theft. The charges in these two cases stem

from burglaries of 13 residences located in North Olmsted, Parma, Seven Hills, and

Valley View from October 2017 until February 2018. The estimated value of all

property stolen totaled approximately $125,000.

In March 2020, Phillips entered guilty pleas in both cases. In Case No.

CR-18-626391-B, he pleaded guilty to two counts of burglary, felonies of the second

degree, and four amended counts of attempted burglary, third-degree felonies. In

Case No. CR-18-626633-B, Phillips pleaded guilty to two counts of burglary, second-

degree felonies, and five amended counts of attempted burglary, felonies of the third

degree. All remaining counts in both cases were nolled. The matter was passed for

sentencing for the purpose of obtaining a presentence investigation and

psychological evaluation for mitigation. Phillips’s previously posted bond remained

in place pending sentencing.

Due to the COVID-19 pandemic, sentencing was reset multiple times.

On June 29, 2020, Phillips requested a continuance because he had not yet

completed the presentence investigation and psychological evaluation due to the

pandemic. He maintained that the evaluations were necessary for sentencing. The court granted Phillips’s motion and continued sentencing until October 1, 2020.

After the state filed its sentencing memorandum, Phillips again requested a

continuance for time to respond to the state’s memorandum. Sentencing was reset

two more times until November 2020.

On November 11, 2020, Phillips appeared for sentencing with stand-in

counsel, who requested that the court consider the sentencing memorandum filed

on Phillips’s behalf. The trial court sentenced Phillips in Case No. CR-18-626391-B

to seven years on each burglary offense, and nine months on each of the four

attempted burglary offenses. In Case No. CR-18-626633-B, the court sentenced

Phillips to seven years on each burglary offense and nine months on each of the five

attempted burglary offenses. All sentences were ordered to be served concurrently,

for a total prison sentence of seven years.

Phillips appeals, contending in his sole assignment of error that the trial

court’s sentence is not supported by the record and is contrary to law. Specifically,

he contends that the trial court failed to consider the sentencing factors found in

R.C. 2911.11 and 2929.12.

We review felony sentences under the standard 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, 21. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,

modify, or vacate and remand a challenged felony sentence if the court clearly and

convincingly finds either that the record does not support the sentencing court’s

findings as required by relevant sentencing statutes, or the sentence is otherwise contrary to law. A sentence is contrary to law if it falls outside the statutory range

for the offense or if the sentencing court failed to consider the purposes and

principles of sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C.

2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.

Conversely, if the sentence is within the statutory range for the offense and the trial

court considered both the purposes and principles of felony sentencing in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12, the court’s

imposition of any prison term for a felony conviction is not contrary to law. State v.

Woodard, 8th Dist. Cuyahoga No. 106300, 2018-Ohio-2402, ¶ 35; see also State v.

Clay, 8th Dist. Cuyahoga No. 108500, 2020-Ohio-1499, ¶ 26, citing Pawlak at ¶ 58.

When sentencing a defendant, a 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. Nevertheless, neither R.C. 2929.11 nor 2929.12 requires a trial

court to make any specific factual findings on the record. State v. Jones, 163 Ohio

St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio St.3d 208,

215, 724 N.E.2d 793 (2000). Therefore, although the trial court must “consider” the

factors, the court is not required to make specific findings on the record regarding

its consideration of those factors, even when imposing a more-than-minimum

sentence. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-

5234, ¶ 11. Indeed, consideration of the factors is presumed unless the defendant affirmatively shows otherwise. State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109,

¶ 16 (8th Dist.). Finally, a trial court’s statement in its sentencing journal entry that

it considered the required statutory factors is alone sufficient to fulfill its obligations

under R.C. 2929.11 and 2929.12. Id.

In this case, prior to sentencing, the trial court acknowledged on the

record that it took into “consideration * * * the record, the oral statements made [at

the sentencing hearing], the purposes and principles of sentencing, the serious and

recidivism factors relevant to the offense and this offender, [and] the need for

deterrence, incapacitation, rehabilitation, and restitution.” (Tr. 25-26.) Although

the trial court did not specifically state on the record that it considered “R.C. 2929.11

and 2929.12,” it expressly identified what those sentencing statutes encompass —

the “purposes and principles of sentencing” and the “seriousness and recidivism

factors.” Moreover, in the court’s sentencing journal entry, the trial court stated that

“[t]he court considered all required factors of the law. The court finds that prison is

consistent with the purpose of R.C. 2929.11.” Accordingly, under Jones, nothing

more is required, and Phillips’s sentence is not contrary to law.1

Phillips contends that his sentence is also contrary to law because the

court did not specifically state that it reviewed his sentencing memorandum, and

1Phillips has not raised any argument on appeal that his sentence is contrary to law because it falls outside the relevant statutory range. We note that a seven-year sentence for burglary, a second-degree felony; and a nine-month sentence for attempted burglary, a third-degree felony, is well within the statutory range for each level of offense. See R.C. 2929.14(A)(2) and (3). the presentencing investigation and mitigation reports; or considered his mental

health concerns. He further argues that his sentence is contrary to law because his

codefendant, Frye, received a lesser sentence than him despite Frye’s primary

involvement in the crimes and his criminal history. Finally, Phillips contends that

the trial court should not have proceeded with stand-in counsel. These arguments

are without merit.

First, the trial court acknowledged that it “considered the record,”

which included both reports prepared for the purposes of sentencing, and the

sentencing memoranda that counsel filed. Moreover, the court stated that it

considered the arguments made during sentencing, which included counsel’s

request that the trial court take into consideration Phillips’s mental health issues

and the sentencing memorandum. Finally, Phillips stated at sentencing that he took

responsibility for his actions and expressed remorse. Accordingly, we find the court

imposed sentence after considering all relevant and available information.

Second, the fact that Phillips’s codefendant received a lesser sentence

does not render Phillips’s sentence contrary to law. The record demonstrates that

unlike Phillips, Frye agreed to cooperate with the police and testify against Phillips

and Ashcraft. This agreement seemingly precipitated Phillips to publish a post on

Facebook insinuating that Frye was a “snitch” or “a rat.” The court was well within

its discretion to consider Phillips’s conduct when imposing sentence. Moreover,

mere disparity in sentencing between codefendants does not render the sentence contrary to law. See generally State v. Anderson, 151 Ohio St.3d 212, 2017-Ohio-

5656, 87 N.E.3d 1203, ¶ 21.

Finally, we find that Phillips was not prejudiced with stand-in counsel.

At the hearing, stand-in counsel advised the court that there was no reason not to go

forward with sentencing. Although Phillips focuses on a prior statement made by

his trial counsel that the case was “extremely complicated” and “necessary” for trial

counsel to be present “and not a stand[-]in counsel,” we note that this statement was

made in support of a motion to continue sentencing, and after this statement was

made, trial counsel filed a thorough sentencing memorandum highlighting the

relevant mitigation information and advocating for a minimum sentence. Finally,

we note that Phillips’s stand-in counsel was from the same law firm as his trial

counsel. Accordingly, the appearance of stand-in counsel at sentencing did not

render Phillips’s sentence contrary to law.

The assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and EILEEN A. GALLAGHER, J., CONCUR