State v. Richardson

2023 Ohio 1650

• Court: Ohio Court of Appeals
• Decided: May 16, 2023
• Docket: CT2022-0073
• Status: Published

Opinion

[Cite as State v. Richardson, 2023-Ohio-1650.]

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. Patricia A. Delaney, J. -vs- : : Case No. CT2022-0073 : DERRICK RICHARDSON : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022-0228

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 16, 2023

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RON WELCH CHRIS BRIGDON MUSKINGUM COUNTY PROSECUTOR 8138 Somerset Rd. Thornville, OH 43076 JOHN CONNOR DEVER 27 North Fifth St., P.O. Box 189 Zanesville, OH 43702 Muskingum County, Case No. CT2022-0073 2

Delaney, J.

{¶1} Defendant-Appellant Derrick Richardson appeals the September 15, 2022

sentencing entry of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is

the State of Ohio.

FACTS AND PROCEDURAL HISTORY

Indictment

{¶2} On May 18, 2021, Defendant-Appellant Derrick Richardson was indicted by

the Muskingum County Grand Jury on one count of corrupting another with drugs, a

second-degree felony in violation of R.C. 2925.02(A)(3); one count of corrupting another

with drugs, a second-degree felony in violation of R.C. 2925.02(A)(4)(a); one count of

possession of drugs (fentanyl-related compound), a fifth-degree felony in violation of R.C.

2925.11(A); one count of tampering with evidence, a third-degree felony in violation of

R.C. 2921.12(A)(1); and one count of endangering children, a third-degree felony in

violation of R.C. 2919.22(A). Richardson entered a not guilty plea to the charges in Case

No. CR2022-0228.

Change of Plea

{¶3} Pursuant to the change of plea hearing held on August 8, 2022, Richardson

entered into a plea agreement with the State where he withdrew his not guilty plea and

entered a guilty plea to Count Three, possession of drugs (fentanyl-related compound);

Count Four, tampering with evidence; and Count Five, endangering children. The State

agreed to dismiss Counts One and Two at the time of sentencing. (T. 3). The parties

agreed to a joint recommendation that Richardson be sentenced to five years in prison

and stipulated to the judicial findings necessary for the imposition of consecutive Muskingum County, Case No. CT2022-0073 3

sentences. (T. 4). The State agreed to defer to the trial court on Richardson’s current post

release control. (T. 4).

{¶4} During the plea colloquy, Richardson acknowledged that he was on post

release control and that a plea of guilty and a finding of guilty could lead to a violation and

termination of his post release control. (T. 6). He also acknowledged that if the trial court

terminated his post release control, any prison time imposed would be mandatorily

consecutive to any prison time imposed in the present case. (T. 7).

{¶5} The State recited the underlying facts leading to the indictment. On March

29, 2022, EMS and police were dispatched to a residence in Muskingum County based

on a report that an infant just over one year of age had potentially ingested fentanyl. (T.

13). The infant was in distress when the paramedics arrived and was administered

NARCAN. (T. 13). After the infant was transported to the hospital, lab tests showed the

infant had 4.4 nanograms per milliliter of fentanyl in her blood system. (T. 13).

{¶6} Upon investigation, the woman indicted on charges with Richardson

indicated that there was a plastic baggy with teeth marks in the living room. The police

discovered text messages on Richardson’s cell phone regarding either selling or

purchasing fentanyl. After being confronted with evidence from the investigation,

Richardson admitted that he had what he believed to be some pills in his pocket. He saw

the child chewing on the baggy that he said probably fell out of his pocket. He saw the

baggy with chew marks on it and that the child turned blue. He took the baggy away from

her and disposed of the pills in the toilet before the police arrived. (T. 14). Muskingum County, Case No. CT2022-0073 4

{¶7} The trial court accepted Richardson’s pleas of guilty and found him guilty

with regard to each of the counts. The trial court ordered a presentence investigation and

set the matter for a sentencing hearing. (T. 15).

Sentencing Hearing

{¶8} Richardson appeared for the sentencing hearing on September 12, 2022.

Prior to the trial court’s imposition of sentence, Richardson entered a plea of guilty to a

charge of aggravated menacing, a fifth-degree felony in violation of R.C. 2903.21(C), in

Muskingum County Court of Common Pleas Case No. CR2022-0431. (T. 3). In exchange

for Richardson’s plea of guilty, the parties agreed to a joint recommendation that

Richardson be sentenced to six months in prison, to be served consecutively to the

sentence imposed in Case No. CR2022-0228. (T. 4). The parties also stipulated to the

judicial findings necessary for the imposition of consecutive sentences. (T. 4). The trial

court engaged in the plea colloquy and accepted Richardson’s plea in Case No. CR2022-

0431. (T. 14).

{¶9} The trial court next stated it had thoroughly reviewed Richardson’s

presentence investigation report. (T. 21). The trial court discussed with Richardson his

prior felony conviction and multiple misdemeanor convictions. (T. 25, 27). Richardson

served a prison term from age 17 to 24. His parole officer stated in the presentence

investigation report that Richardson had no regard for supervision and violated nearly

every sanction of post release control. (T. 26). Richardson’s institutional summary report

stated that he had 60 write-ups during his time in prison. His security level was increased

several times and he was moved to three prisons. (T. 27-28). Muskingum County, Case No. CT2022-0073 5

{¶10} When asked about the events of March 29, 2022, Richardson stated there

was no fentanyl in the home even though the child was found in respiratory distress, and

both Richardson and the child tested positive for fentanyl. (T. 22-23). The trial court

reviewed the text messages on Richardson’s cell phone where Richardson had asked to

purchase fentanyl and cocaine, causing the police to investigate Richardson after the

child ingested fentanyl. The text messages referred to “fetty,” which Richardson claimed

to the trial court referred to “fettuccine” or “the use of money.” (T. 23).

{¶11} The trial court sentenced Richardson to serve the following prison term:

Count Three: a stated prison term of 12 months;

Count Four: a stated prison term of 36 months; and

Count Five: a stated prison term of 36 months.

{¶12} The counts were to be served consecutively for an aggregate prison term

of 84 months. The trial court sentenced Richardson to six months in prison in Case No.

CR2022-0431, which would be served consecutively. It found that consecutive sentences

were necessary to protect the public and punish the offender, and consecutive sentences

were not disproportionate to the seriousness of the conduct and the danger posed to the

public. Also, Richardson’s history of criminal conduct demonstrated consecutive

sentences were necessary to protect the public from future crime. (T. 31).

{¶13} The trial court further found that Richardson was on post release control in

Franklin County Common Pleas Court Case No. 18CR6305. The trial court found

Richardson was no longer amenable to post release control and terminated the same. It

imposed the remainder of the time left on post release control to be served in prison,

consecutively to the 84-month prison term. Muskingum County, Case No. CT2022-0073 6

{¶14} It is from this sentencing that Richardson now appeals.

ASSIGNMENT OF ERROR

{¶15} Richardson raises one Assignment of Error:

{¶16} “I. SHOULD THIS COURT REVERSE THE TRIAL COURT’S DECISION

TO IMPOSE A MAXIMUM SENTENCE ON EACH COUNT IN CASE CR2022-0228 TO

RUN CONSECUTIVE; AND, ON CASE CR2022-0431 A 6 MONTH SENTENCE TO RUN

CONSECUTIVE TO CASE 0228, PLUS AN ADDITIONAL 1 YEAR OF PRC TIME;

BECAUSE, THE SENTENCE WAS IN CONTRAVENTION OF THE SENTENCING

STATUTES R.C. §2929.11 AND R.C. §2929.12?”

ANALYSIS

{¶17} In his sole Assignment of Error, Richardson contends the trial court erred

as a matter of law as to sentencing. Specifically, Richardson asserts the trial court failed

to properly consider the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12.

We disagree.

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

2953.08. State v. Davis, 5th Dist. Tuscarawas No. 2021 AP 12 0034, 2022-Ohio-2397,

2022 WL 2678616, ¶ 9 citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049,

¶31. R.C. 2953.08(G)(2) provides that we may either increase, reduce, modify, or vacate

a sentence and remand for resentencing where we clearly and convincingly find that

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(I), or the sentence is otherwise contrary to Muskingum County, Case No. CT2022-0073 7

law. Davis, 2022-Ohio-2397, ¶ 9; See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.2d 659, ¶ 28.

{¶19} R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court to

modify or vacate a sentence based on its view that the sentence is not supported by the

record under R.C. 2929.11 and 2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649, ¶ 39. The Ohio Supreme Court further elucidated in State v. Toles,

166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,

precludes second-guessing a sentence imposed by the trial court based on its weighing

of the considerations in R.C. 2929.11 and 2929.12.”

{¶20} In State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, the

Ohio Supreme Court clarified its holding in State v. Jones, 163 Ohio St.3d 242, 2020-

Ohio-6729, 169 N.E.3d 649:

The narrow holding in Jones is that R.C. 2953.08(G)(2) does not allow an

appellate court to modify or vacate a sentence based on its view that the

sentence is not supported by the record under R.C. 2929.11 and 2929.12.

See Jones at ¶ 31, 39. Nothing about that holding should be construed as

prohibiting appellate review of a sentence when the claim is that the

sentence was improperly imposed based on impermissible considerations

-- i.e., considerations that fall outside those that are contained in R.C.

2929.11 and 2929.12. Indeed, in Jones, this court made clear that R.C.

2953.08(G)(2)(b) permits appellate courts to reverse or modify sentencing

decisions that are “‘otherwise contrary to law.’” Jones at ¶ 32, quoting R.C.

2953.08(G)(2)(b). This court also recognized that “otherwise contrary to Muskingum County, Case No. CT2022-0073 8

law” means “‘in violation of statute or legal regulations at a given time.’” Id.

at ¶ 34 quoting Black's Law Dictionary 328 (6th Ed.1990). Accordingly,

when a trial court imposes a sentence based on factors or considerations

that are extraneous to those that are permitted by R.C. 2929.11 and

2929.12, that sentence is contrary to law. Claims that raise these types of

issues are therefore reviewable.

Bryant, 2022-Ohio-1878, ¶22.

{¶21} R.C. 2929.11(A) outlines the “the overriding purposes of felony sentencing,”

which 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. 2929.12 details

factors relating to the seriousness of an offender's conduct, the likelihood of recidivism,

service in the Armed Forces, and the purposes and principles of sentencing.

{¶22} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to

review the entire trial court record, including any oral or written statements and

presentence investigation reports. R.C. 2953.08(F)(1) through (4). Although a court

imposing a felony sentence must consider the purposes of felony sentencing under R.C.

and the sentencing factors under R.C. 2929.12, “neither R.C. 2929.11 nor

quires [the] 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, at ¶ 20, citing State v. Wilson, 129

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

208, 215, 724 N.E.2d 793 (2000). Under established law, a “trial court has Muskingum County, Case No. CT2022-0073 9

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. Sullens, 5th Dist. Muskingum No. CT2021-0068,

2022-Ohio-2305, ¶ 15 quoting State v. King, 2nd Dist. Clark App. Nos. 2012–CA–25,

2012-CA-26, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45.

{¶23} The record demonstrates that the trial court imposed prison terms in this

case which were within the statutory range and the trial court specifically considered the

requisite statutory factors in R.C. 2929.11 and R.C. 2929.12 when it fashioned

Richardson’s aggregate sentence. The trial court reviewed the presentence investigation

report. The trial court noted Richardson’s criminal history and substantial record of

disobedience while in prison and on post release control. The trial court spoke to

Richardson about the March 29, 2022 incident where the one-year-old child turned blue

after ingesting fentanyl and had to be revived with NARCAN. While Richardson and the

child tested positive for fentanyl and Richardson exchanged text messages about

purchasing fentanyl, Richardson denied to the trial court there was fentanyl in the house.

In his appeal, Richardson states the trial court failed to consider that while the child

accidentally ingested fentanyl, Richardson had also explained to the trial court how he

had taken steps to remove his children from gang violence.

{¶24} The trial court imposed a sentence different from the parties’ joint

recommended sentence, but it was within the trial court’s discretion to do so. Based upon

the record of the sentencing hearing, we find the trial court’s imposition of sentence was

not contrary to law.

{¶25} Richardson’s sole Assignment of Error is overruled. Muskingum County, Case No. CT2022-0073 10

CONCLUSION

{¶26} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.