[Cite as State v. Spears, 2023-Ohio-187.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Earle E. Wise, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : LANDON SPEARS, : Case No. 2021 CA 00030 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2021CR0152
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT: January 20, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT BRIAN A. SMITH Fairfield County Prosecuting Attorney 123 Miller Road 239 West Main Street, Suite 101 Fairlawn, Ohio 44333 Lancaster, Ohio 43130 Fairfield County, Case No. 2021 CA 00030 2
Baldwin, J.
{¶1} Landon Spears appeals the verdict of the Fairfield County Court of Common
Pleas finding him guilty of Involuntary Manslaughter, a first degree felony in violation of
R.C. 2903.04, a three-year firearm specification related to that charge and Aggravated
Robbery, a first degree felony in violation of R.C. 2911.01(A)(1) and the imposition of a
cumulative prison term of 16 to 21 years. The State of Ohio is Appellee.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Landon Spears was alleged to be a delinquent child as the result of
allegedly committing Aggravated Murder (two counts), Murder and Aggravated Burglary
(five counts). Appellee sought an order to transfer the matter to the Fairfield County
Common Pleas Court. Spears was bound over to the Common Pleas Court and indicted
with the same list of charges, but as an adult.
{¶3} The facts underlying the offenses are unnecessary for the resolution of this
appeal and are omitted.
{¶4} Spears and Appellee entered into a negotiated plea agreement where
Spears plead guilty to Count One after it was amended to Involuntary Manslaughter, as
well as Specification One to that charge and Count Eight, Aggravated Burglary, as
charged. The balance of the charges were dismissed. The text of the charges and
specifications before the amendment to Count One is:
COUNT ONE - AGGRAVATED MURDER, UF:
On or about January 26, 2021, at the County of Fairfield, State of Ohio or
venue being properly placed there pursuant to § 2901.12(H), aforesaid,
Landon Allen Spears, unlawfully did purposely cause the death of H.M.T. Fairfield County, Case No. 2021 CA 00030 3
while committing, or attempting to commit, or while fleeing immediately after
committing or attempting to commit the offense of Aggravated Robbery
and/or Robbery and/or Aggravated Burglary and/or Burglary and/or
Trespass in a Habitation When a Person is Present or Likely to be Present
in violation of § 2903.01(B), 2929.02(A) of the Ohio Revised Code.
SPECIFICATION ONE TO COUNT ONE - § 2941.145(A)
It is further specified that Landon Allen Spears had a firearm on or about his
person or under his control while committing the offense and displayed the
firearm, brandished the firearm, indicated that he possessed the firearm, or
used it to facilitate the offense.
***
COUNT EIGHT - AGGRAVATED ROBBERY, F1:
And the Jurors of the Grand Jury aforesaid, on their oaths aforesaid, do
further present and find, that the said Landon Allen Spears, on or about
January 26, 2021, at the County of Fairfield, State of Ohio or venue being
properly placed there pursuant to § 2901.12(H), aforesaid, unlawfully did, in
attempting or committing a theft offense, as defined in section 2913.01 of
the Revised Code, or in fleeing immediately after the attempt or offense
upon J.A.B. did have a deadly weapon, to wit: a firearm, on or about his
person or under his control and either displayed the weapon, brandished it,
indicated that he possessed it, or used it in violation of § 2911.01(A)(1),
2911.01(C) of the Ohio Revised Code. Fairfield County, Case No. 2021 CA 00030 4
{¶5} The trial court imposed a sentence of ten to fifteen years on Count One,
and an additional mandatory three years for the specification to Count One, and a prison
term of three years on Count Eight for an aggregate sentence of sixteen to twenty-one
years.
{¶6} Appellant filed a delayed appeal after receiving leave from this court and
submitted three assignments of error:
{¶7} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE’S
SENTENCES FOR FIRST AND SECOND-DEGREE QUALIFYING FELONIES
VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF
OHIO.”
{¶8} “II. THE TRIAL COURT PLAINLY ERRED BY FAILING TO MERGE
SPEARS’S OFFENSE OF INVOLUNTARY MANSLAUGHTER AND AGGRAVATED
ROBBERY.”
{¶9} “III. SPEARS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶10} Spears appellate counsel withdrew from his representation and new
counsel was appointed. Spears requested leave to file a supplemental brief with an
additional assignment of error and this court granted the motion. Spears submitted a
fourth assignment of error:
{¶11} “IV. THE TRIAL COURT’S SENTENCE OF APPELLANT WAS
CONTRARY TO LAW FOR FAILING TO CONSIDER APPELLANT’S YOUTH AS A
FACTOR, AS REQUIRED UNDER R.C. 2929.19(B)(1)(B).” Fairfield County, Case No. 2021 CA 00030 5
ANALYSIS
I.
{¶12} In his First Assignment of Error, Spears challenges the constitutionality of
the Reagan Tokes Act, specifically R.C. § 2967.271, which codified hybrid indefinite
prison terms for first- and second-degree felonies. Appellant argues that the Act violates
the separation of powers doctrine, the constitutional right to trial by jury, due process and
equal protection.
{¶13} Spears arguments regarding the Reagan Tokes Act were presented to this
court in State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-Ohio-1481, State v.
Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372 and State v. K'marr M.
Cooper, 5th Dist. Coshocton No. 2021 CA 0024, 2022 WL 17169063 and Spears does
not present a persuasive argument that our analysis should be amended.
Violation of Right to Trial by Jury
{¶14} Spears argues that the Department of Rehabilitation and Correction
(“DRC”) unilaterally conducts fact-finding which may extend an inmate's sentence, and
that this violates his right to trial by jury citing Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000).
{¶15} In Apprendi, a jury convicted the defendant of a gun crime that carried a
maximum prison sentence of 10 years. Id. However, a judge imposed a longer sentence
pursuant to a statute providing him authorization. Id. The judge found, by a
preponderance of the evidence, that the defendant had committed the crime with racial Fairfield County, Case No. 2021 CA 00030 6
bias. Apprendi held this scheme unconstitutional. Id. “[A]ny fact that increases the penalty
for a crime beyond the prescribed statutory maximum,” the Court explained, “must be
submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant.
Id. at 490. A State may not avoid this restraint on judicial power by simply calling the
process of finding new facts and imposing a new punishment a judicial “sentencing
enhancement.” Id., at 495. “[T]he relevant inquiry is one not of form, but of effect—does
the required [judicial] finding expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict?” Id. at 494.
{¶16} In Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), the United States Supreme Court addressed mandatory minimum sentences and
the Sixth Amendment. In Alleyne, the jury relied on victim testimony of an armed robbery
that one of the perpetrators possessed a gun. The trial court relied on the same testimony
to determine that either Alleyne or his accomplice brandished a gun. The testimony was
the same, but the findings were different. The jury found that Alleyne possessed a gun,
but made no finding with regard to whether Alleyne brandished a gun. The court, however
determined that the gun was brandished. The Supreme Court reviewed the statutory
punishment structure, which included a mandatory minimum sentence of five years if a
crime of violence was committed while the offender carried a firearm, seven years if the
firearm was brandished, and ten years if the firearm was discharged during the crime. 18
U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not
exceeding 20 years. 18 U.S.C.1951 (a). The Court held that where facts were not found
by a jury that enhanced the mandatory minimum penalty for a crime, the Sixth
Amendment was violated. Specifically, “[b]ecause mandatory minimum sentences Fairfield County, Case No. 2021 CA 00030 7
increase the penalty for a crime, any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Alleyne at 103. See, State v. Fort, 8th Dist.
Cuyahoga No. 100346, 17 N.E.3d 1172, 2014-Ohio-3412, ¶ 29. However, the majority in
Alleyne held:
In holding that facts that increase mandatory minimum sentences
must be submitted to the jury, we take care to note what our holding does
not entail. Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial fact-finding, does not
violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S.
817, 177 L.Ed.2d 271, 130 S.Ct. 2683 “[W]ithin established limits [,]... the
exercise of [sentencing] discretion does not contravene the Sixth
Amendment even if it is informed by judge-found facts” (emphasis deleted
and internal quotation marks omitted)); Apprendi, 530 U.S. at 481, 120 S.Ct.
2348 (“[N]othing in this history suggests that it is impermissible for judges
to exercise discretion—taking into consideration various factors relating
both to offense and offender—in imposing a judgment within the range
prescribed by statute”).
Alleyne, 570 U.S. at 116. See also, State v. Salim, 5th Dist. Guernsey No. 13 CA
28, 2014-Ohio-357, ¶ 19.
{¶17} Under the Reagan Tokes Act the judge imposes both a minimum and a
maximum sentence. No judicial fact-finding is required. In Ohio, “trial courts have full Fairfield County, Case No. 2021 CA 00030 8
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124. The Reagan Tokes Act does not permit the DRC to extend a sentence
beyond the maximum sentence imposed by the trial court. Burris at ¶ 86. “Further, the
facts which postpone an inmate’s release date are facts found as a result of prison
disciplinary proceedings, not the underlying crime.” Id.
Violation of Separate Powers
{¶18} “The Ohio Supreme Court has made it clear that when the power to sanction
is delegated to the executive branch, a separation-of-powers problem is avoided if the
sanction is originally imposed by a court and included in its sentence.” Burris at ¶ 78,
quoting Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 18-
20 quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19.
This is the scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist.
Montgomery No. 28644, 2020-Ohio-4153, ¶ 23. The statute does not permit DRC to act
outside of the maximum prison term imposed by the court. Id. Accordingly, the Reagan
Tokes Act does not violate the separation of powers doctrine.
Violation of Due Process
{¶19} Procedural requirements are minimal in the context of parole. Burris at ¶ 59.
“[P]rison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply. Wolff v. McDonnell,
418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). Courts have Fairfield County, Case No. 2021 CA 00030 9
found the following procedures should be accorded to prisoners in a disciplinary
proceeding:
1). a prisoner is entitled to a review unaffected by “arbitrary” decision
making. Wolff, 418 U.S. at 557-558, 94 S.Ct. 2963; (See, Ohio Admin. Code
5120-9-08). 2). Advance written notice of the claimed violation. Wolff, 418
U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12). 3). A
written statement of the fact finders as to the evidence relied upon and the
reasons for the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct.
2963. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120: 1-
11(G)(1)). 4). Prison official must have necessary discretion to keep the
hearing within reasonable limits and to refuse to call witnesses that may
create a risk of reprisal or undermine authority, as well as to limit access to
other inmates to collect statements or to compile other documentary
evidence. Wolff, 418 U.S. at 566, 94 S.Ct. 2963 (See, Ohio Adm. Code
5120-0-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). “Where an illiterate
inmate will be able to collect and present the evidence necessary for an
adequate comprehension of the case, he should be free to seek the aid of
a fellow inmate, or if that is forbidden, to have adequate substitute aid in the
form of help from the staff or from a sufficiently competent inmate
designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct. 2963. (See, Ohio
Adm. Code 5120-9-07(H)(1)).
Burris at ¶ 65. Fairfield County, Case No. 2021 CA 00030 10
{¶20} In the case sub judice, the DRC must conduct a hearing to rebut the
presumptive release date. Id. at ¶ 66. According to R.C. § 2967.271(C) the DRC must
determine the applicability of the following factors:
(1) Regardless of the security level in which the offender is classified at
the time of the hearing, both of the following apply:
(a) During the offender's incarceration, the offender committed institutional
rule infractions that involved compromising the security of a state
correctional institution, compromising the safety of the staff of a state
correctional institution or its inmates, or physical harm or the threat of
physical harm to the staff of a state correctional institution or its inmates, or
committed a violation of law that was not prosecuted, and the infractions or
violations demonstrate that the offender has not been rehabilitated.
(b) The offender's behavior while incarcerated, including, but not limited to
the infractions and violations specified in division (C)(1)(a) of this section,
demonstrate that the offender continues to pose a threat to society.
(2) Regardless of the security level in which the offender is classified at the
time of the hearing, the offender has been placed by the department in
extended restrictive housing at any time within the year preceding the date
of the hearing.
(3) At the time of the hearing, the offender is classified by the department
as a security level three, four, or five, or at a higher security level.
{¶21} The Reagan Tokes Act requires DRC to provide notice of the hearing. R.C.
§ 2967.271(E). The Ohio Administrative Code sets forth inmate rules of conduct, Fairfield County, Case No. 2021 CA 00030 11
disciplinary procedures for violations of the rules, under what circumstances an inmate is
transferred to restrictive housing, and procedure for release consideration hearings. Ohio
Adm. Code 5120-9-06; Ohio Adm. Code 5120-9-08; Ohio Adm. Code 5120-9-10; Ohio
Adm. Code 5120:1-1-11. Therefore, the DRC gives the inmate notice in advance of
behavior which may contribute or result to extending their sentence.
{¶22} The Reagan Tokes Act provides the inmate an opportunity to be heard. The
DRC “shall provide notices of hearings to be conducted under division (C) or (D) of this
section in the same manner, and to the same persons, as specified in section 2967.12
and Chapter 2930 of the Revised Code with respect to hearings to be conducted
regarding the possible release on parole of an inmate.” R.C. § 2967.271(E).
{¶23} Therefore, we find the Reagan Tokes Act does not violate Appellant's right
to due process.
Right to Equal Protection
{¶24} Spears contends that his right to equal protection was violated. However,
we concur with the court in State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048,
2021-Ohio-1353, 2021 WL 1530036 at footnote 2, appeal allowed, 2021-Ohio-2742, 164
Ohio St. 3d 1403, 172 N.E.3d 165:
As for the equal protection argument, the fact that prisoners do not
receive the full panoply of rights afforded those accused of crimes is not an
equal protection violation. See State ex rel. Bray v. Russell, 12th Dist.
Warren No. CA98-06-068, 1998 WL 778373, 1998 Ohio App. LEXIS 5377
(Nov. 9, 1998). There is a fundamental difference between normal society Fairfield County, Case No. 2021 CA 00030 12
and prison society. Id. Rules designed to govern those functioning in a free
society cannot automatically be applied to the very different situation
presented in a prison. Prison disciplinary proceedings are not part of a
criminal prosecution and the full panoply of rights due a defendant in such
proceedings does not apply. Id. Furthermore, an equal protection claim
arises only when similarly situated individuals are treated differently. In
other words, laws are to operate equally upon persons who are identified in
the same class. It is axiomatic that the entire Ohio penal system is based
upon classifying and treating each felony degree differently.
{¶25} We find that Reagan Tokes does not violate Appellant's right to equal
protection.
{¶26} Spear’s First Assignment of Error is overruled.
II.
{¶27} In his second assignment of error, Spears contends that the trial court erred
by failing to merge Spears’s offense of Involuntary Manslaughter and Aggravated
Robbery. Spears did not object to the failure to merge the offenses before the trial court
and therefore seeks to convince this court that the failure to merge the offenses is plain
error.
{¶28} Spears agreed to enter a guilty plea to one count of Involuntary
Manslaughter with a weapon specification and one count of Aggravated Robbery. The
Appellee agreed to dismiss the balance of the charges. The trial court found that “[b]y Fairfield County, Case No. 2021 CA 00030 13
agreement of the parties and/or based upon an independent inquiry, the Court finds that
none of the counts merge.” Judgment Entry of Sentence, Aug. 6, 2021, p. 4.
{¶29} The indictment makes clear that the offenses involved harm to different
victims. Count One addressed the death of H.M.T. and the Aggravated Burglary was
directed at J.A.B. We need not engage in lengthy analysis as it is clear that these offenses
are separate and do not merge. “When a defendant's conduct victimizes more than one
person, the harm for each person is separate and distinct, and therefore, the defendant
can be convicted of multiple counts.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892, ¶ 26. See State v. Merritt, 5th Dist. Richland No. 2020 CA 0063, 2021-
Ohio-2847, ¶ 55 appeal not allowed, 165 Ohio St.3d 1480, 2021-Ohio-4289, 177 N.E.3d
1000, ¶ 55 (Counts one and eight involved different victims from each other and from the
counts arising from the discovery of the weapons under the mattress. Therefore, the harm
for A.M. and for W.W. is separate and distinct, and Appellant can be convicted of multiple
counts.)
{¶30} We find that the record demonstrates that there were separate victims
involved in Count One and Count Eight, that the harm to the victims is separate and
distinct and that the trial court did not commit plain error by failing to merge the offenses.
{¶31} Spears second assignment of error is denied.
III.
{¶32} In his third assignment of error, Spears alleges that he suffered ineffective
assistance of counsel as a result of his trial counsel’s failure to argue that Reagan Tokes
was unconstitutional and to object to the trial court’s failure to merge the Involuntary
Manslaughter and Aggravated Robbery charges. As we have found that the Reagan Fairfield County, Case No. 2021 CA 00030 14
Tokes Act is not violative of the constitution and that the trial court did not err by failing to
merge the charges, we find that trial counsel’s performance was not deficient and did not
lead to prejudice.
{¶33} Spears third assignment of error is denied.
IV.
{¶34} In his fourth assignment of error, Spears contends the trial court erred by
failing to consider his youth and its characteristics as mitigating factors as required by
R.C. 2929.19(B)(1)(b). Spears acknowledges that the trial court made statements that
acknowledge some of the elements in the statute, but concludes that “the record shows
that the trial court did not consider the remaining factors under R.C. 2929.19(B)(1)(b),
such as Spears’ ‘family and home environment,’ ‘the way familial and peer pressures may
have impacted the offender’s conduct,’ and ‘[e]xamples of the offender’s rehabilitation,
including any subsequent growth or increase in maturity during confinement.’ R.C 2929.
19(B)(1)(b)(ii)-(iii), (v).” Appellant’s Supplemental Brief, p. 7.
{¶35} 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). R.C. 2953.08(G)(2)
provides 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 law. See, also, State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28. Fairfield County, Case No. 2021 CA 00030 15
{¶36} We have not had the opportunity to consider the application of R.C.
2929.19(B)(1)(b) and the parties have not directed us to any reported decisions applying
this Code section. We have not found cases directly on point, but the analysis of the
language of R.C. 2929.11 and R.C. 2929.12 provides guidance in the application of R.C.
2929.19(B)(1)(b).
{¶37} Revised Code Sections 2929.11 and 2929.12 direct the trial court to
consider specific factors when formulating a sentence for a criminal offense. Under R.C.
2929.11(A) “the sentencing court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or both.” Revised Code 2929.12
contains a lengthy list of factors that must be considered “regarding the offender, the
offense, or the victim” to determine whether the offender’s conduct is more serious or less
serious than conduct normally constituting the offense and to determine whether the
offender is more or less likely to commit future crimes. Revised Code 2929.19(B)(1)(b)
applies only when the offender is under the age of eighteen. The trial court must consider
“youth and its characteristics as mitigating factors, and the statute includes a non-
exclusive list of five categories of information to be considered. Unlike R.C. 2929.11 and
2929.12, these factors are less related to the offense or the purposes of the Code and
are more related to the environmental elements that might impact the offender’s behavior
of mitigate his responsibility. Despite the differences, all of the sections of Chapter 2929
we have referenced share the absence of any requirement for the trial court to issue an
express finding or acknowledgment. Fairfield County, Case No. 2021 CA 00030 16
{¶38} In our review of the language of these R.C. 2929.11 and 2929.12, we have
held that:
While trial courts are required to consider both R.C. 2929.11 and
2929.12 before imposing a prison sentence, they are not required to make
specific findings under any of those considerations. State v. Wilson, 129
Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88
Ohio St.3d 208, 724 N.E.2d 793 (2000). “Indeed, consideration of the
factors is presumed unless the defendant affirmatively shows otherwise.”
State v. Phillips, 8th Dist. Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 8,
citing State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.).
State v. Crawford, 5th Dist. Muskingum No. CT2021-0059, 2022-Ohio-3125, ¶ 18.
{¶39} In a separate case, we concluded that “[a]lthough a trial court must consider
the factors in R.C. 2929.11 and 2929.12, there is no requirement that the court state its
reasons for imposing a maximum sentence, or for imposing a particular sentence within
the statutory range. There is no requirement in R.C. 2929.12 that the trial court states on
the record that it has considered the statutory criteria concerning seriousness and
recidivism or even discussed them. (Citations omitted.) State v. Webb, 5th Dist.
Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 17.
{¶40} While precedent does not require the trial court to produce findings, our
holdings with regard to R.C. 2929.11 and R.C. 2929.12 require that the “necessary
findings can be found in the record,” State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-
Ohio-8996, ¶ 27, State v. Webb, 5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-
4195, ¶ 19 or that “the record reflect[ ] that the trial court considered the purposes and Fairfield County, Case No. 2021 CA 00030 17
principles of sentencing and the seriousness and recidivism factors as required in
Sections 2929.11 and 2929.12 of the Ohio Revised Code.” State v. Hayes, 5th Dist. Knox
No. 18CA10, 2019-Ohio-1629, ¶ 55. See State v. Green, 7th Dist. No. 20 MA 0084, 2021-
Ohio-2412, 173 N.E.3d 876, ¶ 63 and State v. Hughes, 6th Dist. Wood No. WD-05-024,
2005-Ohio-6405, ¶ 10. The mandate of R.C. 2929.19, that the trial court consider specific
factors, is sufficiently similar to the language of R.C. 2929.11 and R.C. 2929.12 to warrant
to the same analysis. Consequently, while the trial court need not specify findings
regarding the factors listed in R.C. 2929.19(B)(1)(b), we must review the record to
determine whether it affirmatively shows the court failed to consider those factors.
{¶41} The present version of R.C. 2929.19(B)(1)(b) was adopted in Sub. S.B.
No. 256 and was effective on April 12, 2021. This section of the Code was entirely new
and not simply an amendment of a prior version. The relevant language is:
(b) If the offense was committed when the offender was under eighteen
years of age, in addition to other factors considered, consider youth and its
characteristics as mitigating factors, including:
(i) The chronological age of the offender at the time of the offense and that
age's hallmark features, including intellectual capacity, immaturity,
impetuosity, and a failure to appreciate risks and consequences;
(ii) The family and home environment of the offender at the time of the
offense, the offender's inability to control the offender's surroundings, a
history of trauma regarding the offender, and the offender's school and
special education history; Fairfield County, Case No. 2021 CA 00030 18
(iii) The circumstances of the offense, including the extent of the
offender's participation in the conduct and the way familial and peer
pressures may have impacted the offender's conduct;
(iv) Whether the offender might have been charged and convicted of a
lesser offense if not for the incompetencies associated with youth, such as
the offender's inability to deal with police officers and prosecutors during the
offender's interrogation or possible plea agreement or the offender's inability
to assist the offender's own attorney;
(v) Examples of the offender's rehabilitation, including any subsequent
growth or increase in maturity during confinement.
{¶42} The trial court ordered completion of a pre-sentence investigation. Revised
Code 2947.06 authorizes that court to “direct the department of probation of the county
in which the defendant resides, or its own regular probation officer, to make any inquiries
and presentence investigation reports that the court requires concerning the defendant.”
[T]he officer making the report shall inquire into the circumstances of
the offense and the criminal record, social history, and present condition of
the defendant, all information available regarding any prior adjudications of
the defendant as a delinquent child and regarding the dispositions made
relative to those adjudications, and any other matters specified in Criminal
Rule 32.2. Whenever the officer considers it advisable, the officer's
investigation may include a physical and mental examination of the
defendant. A physical examination of the defendant may include a drug test
consisting of a chemical analysis of a blood or urine specimen of the Fairfield County, Case No. 2021 CA 00030 19
defendant to determine whether the defendant ingested or was injected with
a drug of abuse. If, pursuant to section 2930.13 of the Revised Code, the
victim of the offense of which the defendant has been convicted wishes to
make a statement regarding the impact of the offense for the officer's use
in preparing the presentence investigation report, the officer shall comply
with the requirements of that section.
R.C. 2951.03.
{¶43} Through these sections of the Ohio Revised Code the trial court has broad
authority to gather the necessary information to allow it to consider the factors listed in
R.C. 2929.19(B)(1)(b).
{¶44} We have reviewed the Pre-Sentence Investigation that is part of the record
and find it incomplete. The document contains information identifying Spears, a list of the
charges and the identity of the judge and attorneys involved in the case. The report
contains a reference to a Juvenile Bind Over and a statement that the Criminal History
was completed on June 24, 2021. The report does contain a lengthy section captioned
“Information Summaries” comprised of a thorough review of the alleged facts, the
investigation and a list of items recovered during the investigation.
{¶45} Immediately after the information summary is the caption “Pre-Sentence
Investigation Interview Summary” followed by the comment: “The pre-sentence
investigation interview has not been completed.” Immediately below that comment is the
caption “Victim Information Summary” followed by the comment: “The victim information
has not been obtained.” Fairfield County, Case No. 2021 CA 00030 20
{¶46} The report contains a list of the people involved in the case, categorized as
defendant, arresting/reporting officer, victim and witnesses followed by a criminal history
which is limited to the charges filed in this case. The following page is captioned
“Application for Community Controls” and beneath that caption is the following:
EDUCATION: No Data
FAMILY HISTORY: No Data
EMPLOYMENT HISTORY: No Data
HEALTH/MEDICAL HISTORY: No Data
COUNSELING/SUBSTANCE ABUSE: No Data
{¶47} Next is a chart that presumably would be used to chart the defendant’s
substance abuse by drug, listing the defendant’s first use, frequency of use, date of last
use and use at the time of the offense. This chart contains no entries. The report ends
with “MISCELLANEOUS INFORMATION: No Data.”
{¶48} We have reviewed the balance of the record in this case and found no
information that could be considered by the trial court to fulfill the obligation imposed by
Revised Code 2929.19(B)(1)(b). While the Pre-Sentence Investigation contains a
comprehensive description of the facts leading to the charges and the investigation, it
does not contain information that could be interpreted as a review of youth and its
characteristics and the specific elements listed in R.C. 2929.19(B)(1)(b). While the trial
court need not make findings regarding these elements, the facts that must be considered
must be in the record for any review to conclude that the trial court considered them.
{¶49} We find that the record affirmatively shows that the trial court did not
consider the factors listed in R.C. 2929.19(B)(1)(b) because the record lacks any Fairfield County, Case No. 2021 CA 00030 21
evidence that could be reasonably interpreted as related to those factors. We find that the
failure to consider the elements of that section of the Code renders Spears sentence
clearly and convincingly contrary to law and we remand the matter to the trial court for
resentencing.
{¶50} Our opinion should not be interpreted as a finding that the record does not
support the sentence imposed, but only that the record affirmatively shows that the trial
court did not consider all of the factors listed under R.C. 2929.19(B)(1)(b). We express
no opinion regarding the length of the sentence imposed by the trial court.
{¶51} Spears’ fourth assignment of error is well taken.
{¶52} The sentence imposed by the trial court is vacated and the matter remanded
to the trial court for resentencing after consideration of all relevant factors, including those
listed in R.C. 2929.19(B)(1)(b).
By: Baldwin, J.
Wise, Earle, P.J. and
Wise, John, J. concur.