[Cite as State v. Rodgers, 2020-Ohio-4173.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
STATE OF OHIO, CASE NO. 5-20-04 PLAINTIFF-APPELLEE,
v.
WILLIAM E. RODGERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court Trial Court No. 2019 CR 71
Judgment Affirmed
Date of Decision: August 24, 2020
APPEARANCES:
Brian A. Smith for Appellant
Steven M. Powell for Appellee Case No. 5-20-04
WILLAMOWSKI, J.
{¶1} Defendant-appellant William E. Rodgers (“Rodgers”) appeals the
judgment of the Hancock County Court of Common Pleas, alleging that his sentence
is not supported by the record. For the reasons set forth below, the judgment of the
trial court is affirmed.
Facts and Procedural History
{¶2} On September 6, 2018, Rodgers sold 0.39 grams of cocaine to a
confidential informant who was working with the Hancock County METRICH
Drug Task Force. PSI. On February 12, 2019, Rodgers was indicted on two counts
of trafficking in cocaine in violation of R.C. 2925.03(A). Doc. 1. On September
27, 2019, Rodgers pled guilty to one count of trafficking in cocaine, which was a
felony of the fifth degree. Doc. 29, 31. The second count of trafficking in cocaine
against Rodgers was dismissed. Doc. 32. At the change of plea hearing, the trial
court ordered that a presentence investigation (“PSI”) be prepared. Change of Plea
Tr. 30.
{¶3} On December 19, 2019, Rodgers appeared before the trial court for
sentencing. Tr. 1. At this hearing, the trial court considered the PSI. Tr. 3, 11-12,
17-19. The trial court then ordered Rodgers to serve an eleven-month prison
sentence. Tr. 21. The maximum prison sentence for this offense was twelve
-2- Case No. 5-20-04
months. R.C. 2929.14(A)(5). On December 30, 2019, the trial court issued the
judgment entry of sentencing. Doc. 33.
Assignment of Error
{¶4} The appellant filed his notice of appeal on January 28, 2020. Doc. 41.
On appeal, Rodgers raises the following assignment of error:
Because the record, as shown by clear and convincing evidence, does not support the trial court’s findings, pursuant to R.C. 2953.08(G)(2), the trial court’s sentence of Appellant was not supported by the record.
Rodgers argues that the trial court did not properly weigh the principles and
purposes of felony sentencing in R.C. 2929.11 or the seriousness and recidivism
factors in R.C. 2929.12.
Legal Standard
{¶5} In rendering a sentence, “[t]he trial court has full discretion to impose
any sentence within the authorized statutory range * * *.” State v. Dayton, 3d Dist.
Union No. 14-16-05, 2016-Ohio-7178, ¶ 15, quoting, State v. King, 2d Dist. Clark
Nos. 2012-CA-25, 2012-CA-26, 2013-Ohio-2021, ¶ 45. However, in this process,
trial courts are to sentence convicted felons in accordance with the overriding
purposes of felony sentencing, which
are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. * * *
-3- Case No. 5-20-04
R.C. 2929.11. “To effectuate compliance with these overriding purposes, the Ohio
Revised Code requires the trial court to consider a number of factors listed in R.C.
2929.12.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The
R.C. 2929.12 factors direct the trial court to evaluate the seriousness of the offense
and the likelihood of recidivism. R.C. 2929.12.
{¶6} “Appellate courts defer to the broad discretion of the trial court in
matters of sentencing.” State v. Jones, 3d Dist. Shelby No. 17-19-08, 2019-Ohio-
4938, ¶ 7.1 If the defendant establishes by clear and convincing evidence that his or
her sentence is “(1) contrary to law and/or (2) unsupported by the record,” an
appellate court has the authority, pursuant to R.C. 2953.08(G)(2), “to increase,
reduce, or otherwise modify a sentence * * *.” State v. McGowan, 147 Ohio St.3d
166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1.
Clear 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.
State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954).
1 Trial courts are given discretion in applying the statutory factors in the process of determining an appropriate sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of discretion is clearly and convincingly contrary to law. Thus, we examine the record to determine whether the trial court clearly and convincingly failed to act in accordance with the laws governing the imposition of sentences.
-4- Case No. 5-20-04
Legal Analysis
{¶7} In this case, the trial court ordered Rodgers to serve a prison sentence
of eleven months after considering the contents of the PSI. Tr. 11-12. We begin
our analysis by noting that this prison term falls within the statutory range for a fifth-
degree felony. R.C. 2929.14. As to the seriousness factors, the trial court
considered the factors that are expressly listed in R.C. 2929.12(B)-(C). Tr. 14. The
trial judge then concluded that, “[b]ased on a consideration of the factors in the
statu[t]e, I don’t know that I really find anything either way that makes [this offense]
better or worse than the others * * *.” Tr. 14. However, R.C. 2929.12(B) does not
limit a trial court’s consideration of the seriousness of an offense to the factors
expressly listed in the statute. R.C. 2929.12(B).
{¶8} Rather, R.C. 2929.12(B) directs a trial court to consider “any other
relevant factors” that “indicat[e] that the offender’s conduct is more serious than
conduct normally constituting the offense.” R.C. 2929.12(B). In this case, the trial
court did consider a factor that was not listed in the statute as evidence that the
offense Rodgers committed was “more serious than [the] conduct normally
constituting the offense.” R.C. 2929.12(B). The trial court found the fact that
Rodgers sold but did not use cocaine to be significant. Tr. 17. The trial judge stated
the following:
The other part that is of concern regarding substance use history is that the offense for which you entered a plea of guilty was
-5- Case No. 5-20-04
trafficking in cocaine. You indicate that you’ve never been a user of cocaine, you were only selling it.
Okay. I think that makes it worse because I understand that it’s not uncommon for users to sell. They sell to other users, they fund their own habits that way. You’re selling to make money, which makes you a drug dealer. That’s a problem.
Tr. 17. The PSI also concluded that none of the R.C. 2929.12(C) factors that
indicate the offender’s conduct was less serious were applicable in this case. PSI.
{¶9} As to the recidivism factors, the trial court noted that the PSI indicated
that Rodgers had “an extensive juvenile record” and “an extensive adult record.”
Tr. 14.
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[Cite as State v. Rodgers, 2020-Ohio-4173.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
STATE OF OHIO, CASE NO. 5-20-04 PLAINTIFF-APPELLEE,
v.
WILLIAM E. RODGERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court Trial Court No. 2019 CR 71
Judgment Affirmed
Date of Decision: August 24, 2020
APPEARANCES:
Brian A. Smith for Appellant
Steven M. Powell for Appellee Case No. 5-20-04
WILLAMOWSKI, J.
{¶1} Defendant-appellant William E. Rodgers (“Rodgers”) appeals the
judgment of the Hancock County Court of Common Pleas, alleging that his sentence
is not supported by the record. For the reasons set forth below, the judgment of the
trial court is affirmed.
Facts and Procedural History
{¶2} On September 6, 2018, Rodgers sold 0.39 grams of cocaine to a
confidential informant who was working with the Hancock County METRICH
Drug Task Force. PSI. On February 12, 2019, Rodgers was indicted on two counts
of trafficking in cocaine in violation of R.C. 2925.03(A). Doc. 1. On September
27, 2019, Rodgers pled guilty to one count of trafficking in cocaine, which was a
felony of the fifth degree. Doc. 29, 31. The second count of trafficking in cocaine
against Rodgers was dismissed. Doc. 32. At the change of plea hearing, the trial
court ordered that a presentence investigation (“PSI”) be prepared. Change of Plea
Tr. 30.
{¶3} On December 19, 2019, Rodgers appeared before the trial court for
sentencing. Tr. 1. At this hearing, the trial court considered the PSI. Tr. 3, 11-12,
17-19. The trial court then ordered Rodgers to serve an eleven-month prison
sentence. Tr. 21. The maximum prison sentence for this offense was twelve
-2- Case No. 5-20-04
months. R.C. 2929.14(A)(5). On December 30, 2019, the trial court issued the
judgment entry of sentencing. Doc. 33.
Assignment of Error
{¶4} The appellant filed his notice of appeal on January 28, 2020. Doc. 41.
On appeal, Rodgers raises the following assignment of error:
Because the record, as shown by clear and convincing evidence, does not support the trial court’s findings, pursuant to R.C. 2953.08(G)(2), the trial court’s sentence of Appellant was not supported by the record.
Rodgers argues that the trial court did not properly weigh the principles and
purposes of felony sentencing in R.C. 2929.11 or the seriousness and recidivism
factors in R.C. 2929.12.
Legal Standard
{¶5} In rendering a sentence, “[t]he trial court has full discretion to impose
any sentence within the authorized statutory range * * *.” State v. Dayton, 3d Dist.
Union No. 14-16-05, 2016-Ohio-7178, ¶ 15, quoting, State v. King, 2d Dist. Clark
Nos. 2012-CA-25, 2012-CA-26, 2013-Ohio-2021, ¶ 45. However, in this process,
trial courts are to sentence convicted felons in accordance with the overriding
purposes of felony sentencing, which
are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. * * *
-3- Case No. 5-20-04
R.C. 2929.11. “To effectuate compliance with these overriding purposes, the Ohio
Revised Code requires the trial court to consider a number of factors listed in R.C.
2929.12.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The
R.C. 2929.12 factors direct the trial court to evaluate the seriousness of the offense
and the likelihood of recidivism. R.C. 2929.12.
{¶6} “Appellate courts defer to the broad discretion of the trial court in
matters of sentencing.” State v. Jones, 3d Dist. Shelby No. 17-19-08, 2019-Ohio-
4938, ¶ 7.1 If the defendant establishes by clear and convincing evidence that his or
her sentence is “(1) contrary to law and/or (2) unsupported by the record,” an
appellate court has the authority, pursuant to R.C. 2953.08(G)(2), “to increase,
reduce, or otherwise modify a sentence * * *.” State v. McGowan, 147 Ohio St.3d
166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1.
Clear 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.
State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954).
1 Trial courts are given discretion in applying the statutory factors in the process of determining an appropriate sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of discretion is clearly and convincingly contrary to law. Thus, we examine the record to determine whether the trial court clearly and convincingly failed to act in accordance with the laws governing the imposition of sentences.
-4- Case No. 5-20-04
Legal Analysis
{¶7} In this case, the trial court ordered Rodgers to serve a prison sentence
of eleven months after considering the contents of the PSI. Tr. 11-12. We begin
our analysis by noting that this prison term falls within the statutory range for a fifth-
degree felony. R.C. 2929.14. As to the seriousness factors, the trial court
considered the factors that are expressly listed in R.C. 2929.12(B)-(C). Tr. 14. The
trial judge then concluded that, “[b]ased on a consideration of the factors in the
statu[t]e, I don’t know that I really find anything either way that makes [this offense]
better or worse than the others * * *.” Tr. 14. However, R.C. 2929.12(B) does not
limit a trial court’s consideration of the seriousness of an offense to the factors
expressly listed in the statute. R.C. 2929.12(B).
{¶8} Rather, R.C. 2929.12(B) directs a trial court to consider “any other
relevant factors” that “indicat[e] that the offender’s conduct is more serious than
conduct normally constituting the offense.” R.C. 2929.12(B). In this case, the trial
court did consider a factor that was not listed in the statute as evidence that the
offense Rodgers committed was “more serious than [the] conduct normally
constituting the offense.” R.C. 2929.12(B). The trial court found the fact that
Rodgers sold but did not use cocaine to be significant. Tr. 17. The trial judge stated
the following:
The other part that is of concern regarding substance use history is that the offense for which you entered a plea of guilty was
-5- Case No. 5-20-04
trafficking in cocaine. You indicate that you’ve never been a user of cocaine, you were only selling it.
Okay. I think that makes it worse because I understand that it’s not uncommon for users to sell. They sell to other users, they fund their own habits that way. You’re selling to make money, which makes you a drug dealer. That’s a problem.
Tr. 17. The PSI also concluded that none of the R.C. 2929.12(C) factors that
indicate the offender’s conduct was less serious were applicable in this case. PSI.
{¶9} As to the recidivism factors, the trial court noted that the PSI indicated
that Rodgers had “an extensive juvenile record” and “an extensive adult record.”
Tr. 14. While Rodgers did not previously have any felony convictions, the trial
court noted that he had previously had several felony charges that resulted in
convictions for misdemeanor offenses. Tr. 15. The PSI concluded that the previous
sanctions that Rodgers had received for his criminal behavior had not resulted in his
rehabilitation as he “continues to engage in criminal behavior.” PSI. Based on the
PSI, the trial judge stated that he “d[i]dn’t find any factors outlined in the PSI that
would indicate recidivism is less likely.” Tr. 15.
{¶10} The trial court also noted that Rodgers had failed to comply with the
terms of his bond. Tr. 15. The PSI indicated that there were ten instances in which
Rodgers “failed to call in on the date that [he was] supposed to * * *.” Tr. 16.
Further, the PSI also indicated that Rodgers reported that he had not used marijuana
since 2012. Tr. 16. However, he tested positive for marijuana three weeks before
-6- Case No. 5-20-04
the scheduled sentencing hearing. Tr. 16. The PSI also indicated that Rodgers did
not have any mental health issues or history of substance abuse. Tr. 19, 20.
{¶11} The trial court found that these facts “complicated” the prospect of
placing Rodgers on community control instead of placing him in prison. Tr. 18.
The trial judge concluded his analysis by stating the following:
I am, however, Mr. Rodgers, going to find, based upon the information contained within the presentence investigation, again, lengthy adult and juvenile criminal history, failure to comply while on bond, again, no diagnosed or reported mental health or substance abuse history, I’m going to find that you are not amenable to community control, that the imposition of a prison sentence is consistent with the principles and purposes of sentencing.
Tr. 20-21.
{¶12} In the end, it is evident that the trial court considered the purposes and
principles of felony sentencing in R.C. 2929.11. The trial court also considered the
seriousness and recidivism factors pursuant to R.C. 2929.12 before ordering a prison
term that was within the statutory range. Tr. 12-13, 20-21. See R.C. 2929.14(A).
After reviewing the relevant materials, we conclude that Rodgers’s sentence is
supported by the facts in the record. Because he did not carry the burden of
demonstrating, by clear and convincing evidence, that his sentence was not
supported by the record, Rodgers’s sole assignment of error is overruled.
-7- Case No. 5-20-04
Conclusion
{¶13} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Hancock County Court of Common Pleas
is affirmed.
PRESTON and ZIMMERMAN, J.J., concur.
/hls
-8-