State v. Sowell

2021 Ohio 889

Opinion

[Cite as State v. Sowell, 2021-Ohio-889.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-02-020

: OPINION - vs - 3/22/2021 :

BRIAN DARNELL SOWELL, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2019-07-1068

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Engel & Martin, LLC, Joshua A. Engel, 4660 Duke Drive, Suite 101, Mason, Ohio 45040

PIPER, P.J.

{¶1} Appellant, Brian Sowell, appeals his sentence in the Butler County Court of

Common Pleas after pleading guilty to trafficking in a fentanyl-related compound.

{¶2} While on community control for an aggravated assault conviction, Sowell was

indicted on seven drug and weapons charges, some of which contained firearm

specifications. Some of the charges also alleged that Sowell's drug activity occurred within Butler CA2020-02-020

the presence of a juvenile. Sowell ultimately pled guilty to one amended count of trafficking

in a fentanyl-related compound, and the other counts and specifications were dismissed.

{¶3} Sowell waived a presentence investigation, and the trial court sentenced him

to eight to 12 years in prison. Sowell's community control was also revoked, and he was

sentenced to 17 months. The trial court ordered the 17-month sentence to be served

concurrently with the sentence imposed in the drug trafficking case. Sowell now appeals

his sentence, raising the following assignment of error:

{¶4} THE TRIAL COURT ERRED IN IMPOSING A SENTENCE BASED ON

INFORMATION OUTSIDE THE RECORD WITHOUT PROVIDING APPELLANT AN

OPPORTUNITY TO RESPOND.

{¶5} Sowell argues in his single assignment of error that the trial court erred in

imposing his sentence.

{¶6} We review the trial court's felony sentencing decision pursuant to the

standard set forth by R.C. 2953.08(G)(2). State v. Starr, 12th Dist. Clermont Nos. CA2018-

09-065 and CA2018-09-066, 2019-Ohio-2081, ¶ 8. Pursuant to that statute, this court may

modify or vacate a sentence only if, by clear and convincing evidence, "the record does not

support the trial court's findings under relevant statutes or that the sentence is otherwise

contrary to law." State v. Baker, 12th Dist. Clermont No. CA2018-06-042, 2019-Ohio-2280,

¶ 17.

{¶7} A sentence is not clearly and convincingly contrary to law where the trial court

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Williams, 12th Dist. Butler No. CA2020-01-009, 2020-

Ohio-5228, ¶ 12.

{¶8} The record is undisputed that the trial court properly considered the statutory

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sentencing requirements of R.C. 2929.11 and 2929.12, imposed postrelease control, and

sentenced Sowell within the statutory range for a second-degree felony. Thus, Sowell's

sentence is not contrary to law.

{¶9} Nevertheless, Sowell argues that the trial court erred during the sentencing

hearing, which renders his sentence contrary to law. First, Sowell argues that the trial court

improperly considered his past criminal record and information about the charges that were

dismissed as a part of the plea negotiations. However, the trial court is statutorily required

to consider relevant information when sentencing a defendant. R.C. 2929.19(B)(1).

{¶10} This information included Sowell's criminal history, with which the trial court

was familiar, as it had presided over Sowell's aggravated assault case for which he was

sentenced to community control. During the current sentencing hearing, Sowell spoke of

his past mistakes and criminal history during allocution, and he waived a presentence

investigation. At no time did Sowell object to any discussion of his criminal history, a history

which was discussed by all parties and well known to the trial court.

{¶11} The court also considered that police located fentanyl and a weapon in the

home while the only person present was Sowell's juvenile daughter. While the weapons

charges and specifications were dismissed and the juvenile-related charge was amended,

the facts and circumstances of those charges were properly considered by the trial court

before sentencing. The facts were relevant to Sowell's plea and to his sentencing, and at

no time did Sowell object to the state's recitation of facts at either the plea hearing or at

sentencing. The facts regarding Sowell's crimes went undisputed during the hearing, and

were properly considered by the trial court.

{¶12} Sowell also argues that he was not given an opportunity to respond to the

state's allegations. However, the record indicates otherwise. Sowell was given allocution

rights, during which he addressed his own history and asked the trial court for mercy based

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upon recent changes in his life and the need to care for his children. At no time did Sowell

allege that the trial court was in danger of considering inaccurate information or that Sowell

was being denied the ability to respond to information that was clearly a part of the record

and had been discussed throughout the hearing.

{¶13} After reviewing the record, we find that the trial court's sentence was not

contrary to law and that the trial court did not err in imposing the sentence. Sowell's single

assignment of error is overruled.

{¶14} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

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