State v. Riemer

2021 Ohio 4122

• Court: Ohio Court of Appeals
• Decided: November 18, 2021
• Docket: 110314
• Status: Published

Opinion

[Cite as State v. Riemer, 2021-Ohio-4122.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110314 v. :

MANUEL RIEMER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 18, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652216-C

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael W. Timms, Assistant Prosecuting Attorney, for appellee.

Erin R. Flanagan, Esq., Ltd., and Erin R. Flanagan, for appellant.

MARY J. BOYLE, A.J.:

Defendant-appellant, Manuel Riemer, appeals his convictions. He

raises the following assignment of error for review: The trial court erred by sentencing appellant without reference to R.C. 2929.11 and/or R.C. 2929.12.

Finding no merit to Riemer’s assignment of error, we affirm.

I. Facts and Procedural History

On September 14, 2020, Riemer and his two brothers were indicted

on three counts: aggravated burglary in violation of R.C. 2911.11(A)(1), a first-degree

felony, with one- and three-year firearm specifications pursuant to R.C. 2941.141(A)

and R.C. 2941.145(A) (Count 1); felonious assault in violation of R.C. 2903.11(A)(2),

a second-degree felony, with one- and three-year firearm specifications (Count 2);

and carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree

felony (Count 3).

The charges arose from an April 10, 2020 assault at the Courtyard

Café in Brecksville. Riemer drove his two brothers to the restaurant, where one of

the brothers was employed. The two brothers allegedly entered the restaurant, one

of them carrying a gun, and beat a kitchen employee with the gun. Riemer then

drove his brothers back to their home in Richfield.

On December 29, 2020, Riemer entered a negotiated plea. In

exchange for Riemer’s plea, the state reduced Count 1 to burglary in violation of

R.C. 2911.12(A)(3), a third-degree felony. Riemer pled guilty to Count 1 as amended

and Count 2 as indicted. The firearm specifications were deleted from Counts 1 and

2. Count 3 was dismissed. The trial court accepted Riemer’s plea and ordered a

presentence investigation report. Riemer was sentenced on January 26, 2021. The trial court opened

the sentencing hearing by reviewing the presentence investigation report. The state

presented the Riemer brothers’ “extensive” criminal history, which had increased in

“seriousness” and “viciousness” over the past few years. The state explained that

Riemer himself had been adjudicated delinquent as a juvenile and had a history of

violent and drug-related crimes. The trial court noted that Riemer had allegedly

reoffended just two days after being released on bond in the present case and was

returned to county jail. The defense emphasized that until the present case,

Riemer’s adult record had included only misdemeanor offenses. The trial court also

heard from Riemer’s adoptive father, who related the difficult circumstances of

Riemer’s early years growing up in an orphanage in Guatemala.

Before sentencing, Riemer was given a chance to address the court.

Riemer explained that he often drove his brothers to work, and April 10, 2020, had

been just “another normal day.” Riemer stated that he only later learned of the

assault after he and his brothers had been arrested. The trial court admonished

Riemer for feigning ignorance to his brothers’ completed crime because, the state

alleged, security cameras showed that the brothers had exited the Courtyard with

the gun in plain view.

The trial court sentenced Riemer to a five-year community control

sanction. The trial court initially intended that Riemer would serve the first six

months of his five-year community control sanction under house arrest. After

learning that Riemer had drug and alcohol addictions, however, the trial court ordered the first six months to be served at The McDonnell Center where Riemer

would receive treatment for his addictions.

In its January 28, 2021 sentencing journal entry, the trial court

stated:

The court considered all required factors of the law. The court finds that a community control / probation sanction will adequately protect the public and will not demean the seriousness of the offense. It is therefore ordered that the defendant is sentenced to 5 years of community control / probation on each count, under supervision of the adult probation department with the following conditions: [The] [d]efendant [is] to abide by the rules and regulations of the probation department. * * *

If found eligible, as a condition of [the] defendant’s community control, pursuant to R.C. 2929.16(A)(1), the defendant is ordered into the McDonnell Center * * * and to successfully complete the [Community Based Correctional Facility] Program[.] * * * [I]f the defendant fails to follow the program rules and regulations, * * * or if the defendant is discharged for any reason, other than a successful discharge, [the] defendant shall be taken into custody by the county jail and held without bond until further order of this court. * * *

[The] defendant [is] ordered to submit to regular drug testing, obtain / maintain verifiable employment, [and] provide proof of employment to the probation department. Violation of the terms and conditions may result in more restrictive sanctions, or a prison term of 5 years, as approved by law: Count 1, 36 months [and] Count 2, 5 years, [to be served] concurrently * * * and post-release control for 3 years mandatory.

Riemer now appeals this order.

II. R.C. 2929.11 and 2929.12

In his sole assignment of error, Riemer argues that during sentencing,

the trial court failed to consider sentencing principles and factors under

R.C. 2929.11 and 2929.12. Specifically, Riemer argues that although the trial court referenced these statutes in its sentencing journal entry, it failed to outline the

policies and principles of felony sentencing pursuant to R.C. 2929.11 and failed to

analyze the sentencing factors pursuant R.C. 2929.12 on the record. The state points

out that during plea negotiations, Riemer requested community control in place of

prison and received what he requested.

Riemer acknowledges that this court has held “a trial court’s

statement in its sentencing journal entry that it considered the required statutory

factors is enough to fulfill its obligations under R.C. 2929.11 and 2929.12.”

Nevertheless, Riemer contends that a trial court’s mere recitation that it considered

the statutory factors during sentencing values form over substance, thereby

“depriv[ing] the public of one of the essential functions of criminal sentencing, i.e.,

transparency in our system of criminal justice.” Reimer requests this court to

overrule precedent. We decline to do so.

This court reviews felony sentencing 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, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony

sentences, a reviewing court “shall review the record, including the findings

underlying the sentence * * * given by the sentencing court” and “may vacate the

sentence and remand the matter to the sentencing court for resentencing” only if it

“clearly and convincingly finds” “the sentence * * * contrary to law.” Id.

A sentence is contrary to law if it falls outside the statutory range for

a particular offense or if the trial court fails to consider the purposes and principles of felony sentencing pursuant to R.C. 2929.11 and the sentencing factors pursuant

to R.C. 2929.12. State v. Black, 8th Dist. Cuyahoga No. 108551, 2020-Ohio-3117, ¶

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

R.C. 2929.11 and 2929.12 are not fact-finding statutes. State v. Boyd, 8th Dist.

Cuyahoga No. 109052, 2020-Ohio-5181, ¶ 18.

As set forth in R.C. 2929.11, felony sentencing must be “reasonably

calculated” to realize “three overriding purposes of felony sentencing”: (1) protecting

the public, (2) punishing the offender, and (3) promoting rehabilitation of the

offender. R.C. 2929.11(A) and (B). A sentencing court must endeavor to use “the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources” and

impose a sentence “commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim.” R.C. 2929.11(A) and (B).

The sentencing court “has discretion to determine the most effective

way to comply” with the purposes and principles of felony sentencing.

R.C. 2929.12(A). R.C. 2929.12 provides a nonexhaustive and nonexclusive list of

factors the court must consider when imposing a felony sentence. Such factors

relate to “the seriousness of the conduct,” R.C. 2929.12(B) and (C), “the likelihood

of the offender’s recidivism,” R.C. 2929.12(D) and (E), and “the offender’s military

service,” if any. R.C. 2929.12(A). The sentencing court also “may consider any other

factors that are relevant to achieving th[e] purposes and principles of sentencing.”

R.C. 2929.12(A). While the sentencing court must consider purposes and principles of

felony sentencing set forth in R.C. 2929.11 and sentencing factors set forth in

R.C. 2929.12, the court is not required to make findings or give reasons supporting

the factors when imposing a sentence that is not considered contrary to law. State

v. Reindl, 8th Dist. Cuyahoga Nos. 109806, 109807, and 109808, 2021-Ohio-2586,

¶ 24. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, permits an

appellate court to review whether the trial court considered the R.C. 2929.12 factors

but not independently review the weight the trial court accorded each factor in its

sentencing decision. State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-

1543, ¶ 14-15. A sentence is not contrary to law merely because the defendant

disagrees with the way the trial court weighed and applied the R.C. 2929.11 and

2929.12 factors in fashioning an appropriate sentence. Reindl at ¶ 25, citing State

v. Solomon, 8th Dist. Cuyahoga No. 109535, 2021-Ohio-940, ¶ 115.

A statement in the sentencing journal entry showing that the trial

court considered the required statutory factors, without more, is sufficient to fulfill

a trial court’s obligations under the sentencing statutes. State v. Whitehead, 8th

Dist. Cuyahoga No. 109599, 2021-Ohio-847, ¶ 34, citing State v. Seith, 8th Dist.

Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12. Moreover, “‘[c]onsideration of the

factors is presumed unless the defendant affirmatively shows otherwise.’” Id., citing

Seith at ¶ 12, and State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-

Ohio-5234, ¶ 11. In this case, the trial court expressly stated in the sentencing journal

entry that it had “considered all required factors of the law” and found “that a

community control / probation sanction will adequately protect the public and will

not demean the seriousness of the offense.” The entry quotes from R.C. 2929.11(A)

and (B), showing the trial court’s awareness of the purposes and principles of felony

sentencing when it imposed Riemer’s sentence. The entry also states that the

sentence comports with these purposes and principles after consideration of the

R.C. 2929.12 factors. Without more, the sentencing journal entry fulfills the trial

court’s obligations under R.C. 2929.11 and 2929.12.

Nevertheless, argues Riemer, the trial court’s mere recitation that it

considered the statutory factors privileges form over substance. Not so. The trial

court’s sentencing journal entry abridges its fuller consideration of the factors before

and during the sentencing hearing. Neither R.C. 2929.11 nor 2929.12 requires the

court to make findings or give reasons for the sentence it imposes. Whitehead at

¶ 34. However, in this case, the trial court explained its rationale for imposing the

sentence during the sentencing hearing.

The trial court opened the sentencing hearing by stating that it

reviewed the presentence investigation report and interrupted the state’s

explanation of the Riemer brothers’ “extensive” criminal history to confirm that

Riemer could hear what the trial court had learned about him during the pendency

of the case. The presentence investigation report showed that the brothers’ crimes

had grown more serious and vicious over the past few years. The report also showed that Riemer himself had been adjudicated delinquent as a juvenile and had a history

of violent and drug-related crimes. See R.C. 2929.12(D)(2).

In addition, the trial court observed that Riemer had allegedly

reoffended and was arrested just two days after being released on bond in the

present case and was returned to jail. See R.C. 2929.12(D)(5). Further, after being

given an opportunity to address the court before sentencing, Riemer claimed that he

first learned of the assault after he and his brothers had been arrested, which

compelled the trial court to admonish Riemer about the gravity of the offense and

lying to the court. See R.C. 2929.12(B)(2) and (D)(5). Riemer replied that he

understood.

The trial court balanced these factors relating to the seriousness of

Riemer’s conduct, R.C. 2929.12(B), and likelihood of recidivism, R.C. 2929.12(D),

against several mitigating factors. The court took note of Riemer’s adult criminal

history, which until present included only misdemeanor offenses. The trial court

also took note of Riemer’s difficult early childhood growing up in an orphanage in

Guatemala. Finally, the court took note of Riemer’s drug and alcohol addictions and

amended the first six months of his five-year community control sanction from

house arrest to six months of treatment for drug and alcohol addiction at The

McDonnell Center.

Based on the record before us, we cannot say that the trial court failed

to consider the R.C. 2929.12 sentencing factors or these factors’ relationship to the

purposes and principles of felony sentencing. In its sentencing journal entry, the trial court states that the community control sanction would “adequately protect the

public” and “not demean the seriousness of the offense.” These two statutory

sentencing principles express a concern for the public and the victim, which strongly

suggests that on balance, this sentence benefited Riemer. Following Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 123, we will not independently review

the weight the trial court accorded each factor in its sentencing decision. The trial

court complied with its obligations under R.C. 2929.11 and 2929.12, and Riemer has

not affirmatively shown otherwise.

Accordingly, we overrule Riemer’s sole assignment of error.

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.

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

of the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and LISA B. FORBES, J., CONCUR