State v. Poole

2022 Ohio 2391

• Court: Ohio Court of Appeals
• Decided: July 5, 2022
• Docket: 21CA1151
• Status: Published

Opinion

[Cite as State v. Poole, 2022-Ohio-2391.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : Case No. 21CA1151

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY JORDAN POOLE, :

Defendant-Appellant. : RELEASED 7/05/2022 ______________________________________________________________________ APPEARANCES:

Brian T. Goldberg, Cincinnati, Ohio, for appellant.

C. David Kelley, Adams County Prosecutor, Anthony Hurst, Adams County Assistant Prosecutor, West Union, Ohio, for appellee. ______________________________________________________________________ Hess, J.

{¶1} Jordan Poole appeals his conviction for possession of heroin and operating

a motor vehicle while under the influence after he pleaded guilty and was sentenced to

18 months in prison and a concurrent jail sentence of 180 days. In his sole assignment

of error, Poole contends that the trial court failed to consider the purposes and principles

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

2929.12. Poole argues that the trial court “completely ignored sentencing factors” after

Poole told the court he did not want to undergo drug rehabilitation treatment and would

simply prefer prison. However the sentencing entry and the sentencing hearing transcript

both show that the trial court considered the factors in R.C. 2929.11 and R.C 2929.12

prior to sentencing Poole, therefore we overrule his assignment of error and affirm the

trial court’s judgment. Adams App. No. 21CA1151 2

I. PROCEDURAL HISTORY

{¶2} In April 2021, the Adams County grand jury indicted Poole on one count of

trafficking in heroin in violation of R.C 2925.03(A)(2), a fourth-degree felony (Count 1);

one count of trafficking in fentanyl in violation of R.C. 2925.03(A)(2), a fourth-degree

felony (Count 2); one count of possession of drugs in violation of R.C. 2925.11(A), a fifth-

degree felony (Count 3); one count of possession of heroin in violation of R.C. 2925.11(A),

a fourth-degree felony (Count 4); and one count of operating a motor vehicle while under

the influence of drugs, alcohol, or a combination thereof in violation of R.C.

4511.19(A)(1)(a), a first-degree misdemeanor (Count 5). Poole initially pleaded not guilty,

but in August 2021 he entered into a plea agreement with the state and entered a guilty

plea to one count of possession of heroin and one count of operating a motor vehicle

under the influence (Counts 4 and 5). Counts 1, 2, and 3 were dismissed in exchange for

the guilty plea.

{¶3} The trial court held three hearings in an attempt to sentence Poole. At the

first hearing in September 2021, Poole asked to be sentenced to community control.

However, Poole conceded that he had not enrolled in any drug treatment programs or

counseling. The trial court read Poole’s lengthy criminal history, which spanned a decade

and included multiple community control violations and multiple attempts at drug and

alcohol rehabilitation programs. Poole also admitted that he was required to report for a

drug rehabilitation program as part of his conviction in another county but that he has not

had time to get around to doing that. The trial court postponed sentencing, instructed

Poole that he needed to report to drug counseling as required under his other conviction,

and rescheduled the sentencing hearing for November 2021. Adams App. No. 21CA1151 3

{¶4} At the November 2021 hearing, Poole was under the influence of drugs and

tested positive for methamphetamine, amphetamine, buprenorphine, and fentanyl. The

hearing was rescheduled for December 2021 and his bond was revoked.

{¶5} At the December 2021 sentencing hearing, the trial court stated that it had

received and reviewed the pre-sentence investigation report. The state stated that Poole

had two prior felony convictions, had community control revoked at least seven times over

the course of his criminal history, and had his bond revoked due to positive drug tests in

this case. The state asked that the trial court impose a prison sentence. Poole informed

the trial court that he had not engaged in any drug treatment counseling despite being

instructed to do so at the September 2021 hearing. Poole also informed the trial court that

his requested sentence would be community control with no drug treatment program. If

the trial court was not agreeable to give him basic community control without drug

treatment, then he preferred to go to prison. Poole then clarified that he would be willing

to undergo voluntary outpatient treatment but not mandatory inpatient treatment.

{¶6} The trial court asked Poole what his rationale was and Poole explained that

he did not want to go to an inpatient program that would not count towards his prison

sentence, explaining that he believed he could relapse and have to go to prison anyway:

I’m not going to go to a program that don’t count towards my sentence. So, if I did get out of it and I did mess up, then I gotta redo all them days again, like I’ll just go and I’d rather just do it, get it [prison] over with now, if that’s the case.

Poole repeatly explained that he did not want to engage in inpatient drug rehabilitation

that did not count against his prison sentence if he “messed up” and violated community

control. The trial court asked Poole why he thought he was “destined to mess up? Just

continue to mess up?” Poole responded, “I’m saying it’s possible.” Adams App. No. 21CA1151 4

{¶7} The court stated that it had considered the record, the oral statements, and

the presentence investigation report and considered the principles and purposes of

sentencing under R.C. 2929.11. The court also stated it considered the overriding

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

2929.12. The trial court was particularly concerned with Poole’s decade long criminal

history, which involved many drug-related convictions. Poole had at least eight community

control violations and completed several unsuccessful drug rehabilitation programs. The

trial court also noted that it told Poole to be assessed for drug treatment at the September

2021 hearing and the agency’s multiple attempts to schedule an assessment of him were

unsuccessful. The trial court explicitly discussed the recidivism factor in R.C. 2929.12: “In

considering the recidivism factors, whether recidivism is likely, uh, whether he committed

the incident offense while on community control. Uh, the defendant committed the incident

offense while in community control of Brown County Court * * *.” The trial court also noted

that in almost all of his prior criminal convictions he has violated community control and

had it revoked and he “shows a pattern of alcohol and drug, drug use related to the

offense and doesn’t acknowledge or refuses treatment.”

{¶8} The trial court determined Poole was not amenable to community control

sanctions and ordered him to serve a prison term of 18 months for possession of heroin

(Count 4) and 180 days in jail, to be served concurrently, for operating a vehicle under

the influence (Count 5). The sentencing entry also included the statement that the trial

court considered “the principle and purposes of sentencing under Ohio Revised Code

Section 2929.11(A) * * * and has balanced the seriousness and recidivism factors of ORC

2929.12.”

II. ASSIGNMENT OF ERROR Adams App. No. 21CA1151 5

{¶9} Poole presents one assignment of error:

I. The record clearly and convincingly demonstrates the trial court failed to consider the purposes and principles of sentencing under R.C. 2929.11 or the seriousness and recidivism factors in R.C. 2929.12.

III. LAW AND ANALYSIS

{¶10} Poole contends that the trial court failed to consider the purposes and

principles of sentencing under R.C. 2929.11 or the seriousness and recidivism factors in

R.C. 2929.12 and therefore his sentence is contrary to law. He argues that if the record

clearly and convincingly demonstrates that the trial court did not consider the necessary

factors, the sentence must be reversed. He asks us to remand the matter to the trial court

for a new sentencing hearing.

{¶11} A defendant bears the burden to establish, by clear and convincing

evidence, that a sentence is either contrary to law or that the record does not support the

specified findings. State v. Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶

48. “[C]lear 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 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; State v. Whitehead, 4th Dist. Scioto No. 20CA3931, 2022-Ohio-479, ¶ 107.

{¶12} R.C. 2953.08(G)(2) provides:

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.

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 Adams App. No. 21CA1151 6

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.

{¶13} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,

the Court held that R.C. 2953.08(G)(2) does not permit an appellate court to review

whether the record supports a sentence as a whole under R.C. 2929.11 and 2929.12. Id.

at ¶ 30. The Court stated:

Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12. In particular, R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry like the independent sentence evaluation this court must conduct under R.C. 2929.05(A) when reviewing a death penalty-sentence. See State v. Hundley, 162 Ohio St.3d 509, 2020-Ohio-3775, 166 N.E.3d 1066, ¶ 128 (recognizing that R.C. 2929.05(A) requires de novo review of findings and other issues within its scope).

Id. at ¶ 42; State v. Arbogast, 4th Dist. Adams No. 20CA1119, 2021-Ohio-484, ¶ 7.

{¶14} However, Poole does not ask us to review whether the record supports his

sentence as a whole under R.C. 2929.11 and 2929.12. Rather, he argues that his

sentence is “contrary to law” because the record shows clearly and convincingly that the

trial court did not even consider R.C. 2929.11, which sets forth the purposes and

principles of felony sentencing, and R.C. 2929.12, which addresses factors to be

considered when imposing a sentence under R.C. 2929.11.

{¶15} The Supreme Court of Ohio has explained that the term “contrary to law” is

not defined by the General Assembly; therefore, a court must look to the ordinary meaning Adams App. No. 21CA1151 7

at the time the statute was enacted. State v. Jones at ¶ 33. “At that time, legal dictionaries

defined ‘contrary to law’ as ‘in violation of statute or legal regulations at a given time,’ e.g.,

Black's Law Dictionary 328 (6th Ed.1990).” Id. at ¶ 34. In Jones, the Court reviewed the

history of R.C. 2953.08 and found that the broader provision allowing an appellate court

to vacate the sentence when it found “the record does not support the sentence” was

eliminated by the legislature, but that the phrase “otherwise contrary to law” was not

amended. Id. at ¶ 37. As a result, “the term ‘otherwise contrary to law’ * * * meant

something other than an appellate court finding that the record does not support a

sentence.” Id. at ¶ 38. Based upon the Supreme Court of Ohio’s recent decision in Jones,

we understand the phrase “contrary to law” to have the original meaning it had when the

statute was enacted in 1995, which is “in violation of statute or legal regulations at a given

time.” Id. at ¶ 34.

{¶16} Both R.C. 2929.11 and R.C. 2929.12 require the trial court to consider them

because each statute contains the word “shall.” “A basic rule of statutory construction is

that ‘shall’ is ‘construed as mandatory unless there appears a clear and unequivocal

legislative intent’ otherwise.” Bergman v. Monarch Constr. Co., 124 Ohio St.3d 534, 2010-

Ohio-622, 925 N.E.2d 116, ¶ 16. R.C. 2929.11(A) provides:

A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. 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. To achieve those 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. (Emphasis added.)

R.C. 2929.12(A) provides: Adams App. No. 21CA1151 8

(A) Unless otherwise required * * *, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct, the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism, and the factors set forth in division (F) of this section pertaining to the offender's service in the armed forces of the United States and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing. (Emphasis added.)

{¶17} Because both R.C. 2929.11 and R.C. 2929.12 require the trial court to

consider the factors outlined in those two statutory provisions, State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, then a trial court’s failure to consider

the factors would render the sentence “in violation of statute” and thus “contrary to law.”

This was our established precedent prior to Jones and nothing in our interpretation of

Jones requires us to abandon it. State v. Allen, 4th Dist. Pickaway No. 19CA31, 2021-

Ohio-648, ¶ 19 (“under the Supreme Court's decision in Jones, a reviewing court no

longer needs to determine whether a trial court's consideration of the factors in R.C.

2929.11 and 2929.12 are supported in the record. The court's consideration of the factors

enumerated in these statutes is sufficient”); see also State v. Neal, 4th Dist. Lawrence

Nos. 14CA31 & 14CA32, 2015-Ohio-5452, ¶ 55 (“A sentence is contrary to law * * * if the

trial court fails to consider the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12”). “Although a trial court

has a mandatory duty to consider the relevant statutory factors under R.C. 2929.11 and

2929.12, the trial court is not required to specifically analyze each factor on the record or

to explain its reasoning before imposing a sentence.” Id. at ¶ 58; Jones at ¶ 20, citing

State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Adams App. No. 21CA1151 9

{¶18} Here the sentencing hearing transcript and the sentencing entry show that

the trial court did, in fact, consider both R.C. 2929.11 and R.C. 2929.12 in imposing

Poole’s sentence. The trial court discussed several of the factors at the sentencing

hearing, including recidivism, and it explicitly stated that it considered the factors in the

sentencing entry. “A trial court’s statement in its sentencing journal entry that it considered

the statutory factors, without more, is sufficient to fulfill a trial court’s obligations under

R.C. 2929.11 and 2929.12.” State v. Neal at ¶ 59. Thus, contrary to Poole’s contentions,

the record does not clearly and convincingly demonstrate that the trial court failed to

consider the factors of R.C. 2929.11 and R.C. 2929.12. The trial court stated that it

considered the factors in the sentencing entry and explicitly detailed its concerns

regarding recidivism at the sentencing hearing.

{¶19} Accordingly, we overrule Poole’s assignment of error and affirm the trial

court’s judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the ADAMS COUNTY COMMON PLEAS COURT to carry this judgment into execution. Adams App. No. 21CA1151 10

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.