State v. Pope

2012 Ohio 101

• Court: Ohio Court of Appeals
• Decided: January 12, 2012
• Docket: 96291
• Status: Published

Opinion

[Cite as State v. Pope, 2012-Ohio-101.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96291

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JOHNATHAN W. POPE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-540082

BEFORE: Jones, P.J., Rocco, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: January 12, 2012 ATTORNEY FOR APPELLANT

Robert A. Dixon The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: William Leland Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

LARRY A. JONES, P.J.:

{¶ 1} Defendant-appellant, Johnathan Pope, appeals his sentence. We affirm.

{¶ 2} In 2010, Pope was charged with multiple counts of drug trafficking, drug

possession, endangering children, and possessing criminal tools. He entered into a plea

agreement, by which he pleaded guilty to two counts of drug trafficking and one count of

endangering children. At the sentencing hearing, the trial court sentenced Pope to a total of two

years in prison. It is from this sentence that Pope appeals, raising the following assignment of

error for our review:

“I. The lower court erred and denied the appellant equal protection and due process of law

when it sentenced him to consecutive sentences based at least in part upon information

gathered by the court prior to sentencing without notice to the defense.”

{¶ 3} We review felony sentences by applying the two-prong approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, we must ensure that the

trial court adhered to all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law. Id. at 25. Second, if the first

prong is satisfied, we review the trial court’s decision under an abuse-of-discretion standard. Id.

at 26.

{¶ 4} In this case, the trial court imposed an aggregate sentence of 2 years, when Pope

faced a total maximum consecutive sentence of 3 years; thus, the sentence was within the

permissible statutory range. Also, the court properly advised Pope of postrelease control.

Accordingly, Pope’s sentence was not clearly and convincingly contrary to law.

{¶ 5} Next, we consider whether the trial court abused its discretion. Under current

Ohio law, a trial court “now has the discretion and inherent authority to determine whether a

prison sentence within the statutory range shall run consecutively or concurrently.” State v.

Elmore, 122 Ohio St.3d 472, 480, 2009-Ohio-3478, 912 N.E.2d 582; State v. Bates, 118 Ohio

St.3d 174, 178, 2008-Ohio-1983, 887 N.E.2d 328. Although trial courts have full discretion to

impose a prison sentence within the statutory range and are not required to make findings or give

reasons for imposing the maximum or consecutive sentences, the trial court must still consider

the purposes of the felony sentencing statute set forth in R.C. 2929.11 and 2929.12, which

provide factors to consider relating to the seriousness of the offense and recidivism of the

offender. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; State v.

Mathis, 109 Ohio St.3d 54, 62, 2006-Ohio-855, 846 N.E.2d 1; see also State v. Hodge, 128

Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶ 39 (holding that trial judges are not obligated

to engage in judicial fact-finding prior to imposing consecutive sentences).

{¶ 6} In his assignment of error, Pope argues that the trial court improperly relied on information the court learned at the sentencing hearing to sentence him to consecutive sentences.

We disagree.

{¶ 7} The record reflects that Pope enrolled in a drug treatment program run by the

Adult Parole Authority. Defense counsel indicated to the court that Pope was still in the

program. Later in the hearing, the trial court stated that it had spoken with Pope’s parole

officer, who told the court that Pope had been unsuccessfully discharged from the program.

{¶ 8} Pope argues that the trial court should have told his attorney that Pope had not

completed the program before the court questioned Pope on the matter. But it was not until the

sentencing hearing that the trial court was faced with conflicting information; it was then that the

court asked Pope about his status in the program. The presentence investigation report (“PSI”)

indicates that Pope entered the drug program on October 10, 2010, but tested positive for cocaine

and marijuana on October 15, 2010. He admitted consuming alcohol, ecstacy, and cocaine on

October 17, 2010. There is a handwritten notation in the PSI that Pope was “unsuccessfully

discharged” from the program on October 21, 2010.1

{¶ 9} Moreover, a review of the sentencing transcript indicates that Pope’s failure to

complete his drug program was not the sole basis for the sentence in this case.2 The trial court

considered the facts in the case, reviewed the presentence investigation report and Pope’s

extensive criminal record, and declared him to be at the “highest risk” of recidivism. According

It is unclear who made the notation. 1

It appears from the transcript that the trial court spoke with Pope’s parole officer at some 2

point prior to the hearing. Pope does not argue that the judge’s conversation with the parole officer was without defense counsel present or otherwise improper. See State v. Heard, 8th Dist. No. 95002, 2011-Ohio-2031, at ¶ 11-13, appeal not accepted by 129 Ohio St.3d 1478, 2011-Ohio-4751, 953 N.E.2d 843. to Pope’s PSI, he had eight cases in juvenile court. As an adult, Pope was indicted in 17 felony

cases in which he either was found guilty, pleaded guilty, or pleaded no contest. The cases

consisted of both violent and non-violent felonies; moreover, Pope was on parole at the time he

was arrested in the instant case.

{¶ 10} Accordingly, we conclude that the trial court did not improperly consider evidence

of Pope’s discharge from the drug program when sentencing him and did not abuse its discretion

in sentencing him to two years in prison.

{¶ 11} Pope’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

LARRY A. JONES, PRESIDING JUDGE

KENNETH A. ROCCO, J., and EILEEN A. GALLAGHER, J., CONCUR