State v. Webb

2024 Ohio 4862

• Court: Ohio Court of Appeals
• Decided: October 7, 2024
• Docket: 14-23-38
• Status: Published

Opinion

[Cite as State v. Webb, 2024-Ohio-4862.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO, CASE NO. 14-23-38 PLAINTIFF-APPELLEE,

v.

BRANDON H. WEBB, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 22-CR-0001

Judgment Affirmed

Date of Decision: October 7, 2024

APPEARANCES:

Alison Boggs for Appellant

Andrew M. Bigler for Appellee Case No. 14-23-38

ZIMMERMAN, J.

{¶1} Defendant-appellant, Brandon H. Webb (“Webb”), appeals the

November 29, 2023 judgment entry of sentence of the Union County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} On January 7, 2022, the Union County Grand Jury indicted Webb on

Count One of the failure to comply with order or signal of a police officer in

violation of R.C. 2921.331(B), (C)(5)(a)(ii), a third-degree felony, and Count Two

of receiving stolen property in violation of R.C. 2913.51(A), (C), a fourth-degree

felony. On January 12, 2022, Webb appeared for arraignment and entered pleas of

not guilty to the charges.

{¶3} On April 27, 2022, Webb withdrew his pleas of not guilty and entered

guilty pleas, under a negotiated plea agreement, to both counts in the indictment.

The trial court accepted Webb’s guilty pleas, found him guilty, and ordered a pre-

sentence investigation.

{¶4} Following a delay to his sentencing, the trial court sentenced Webb on

November 29, 2023 to 30 months in prison on Count One and to 17 months in prison

on Count Two. (Doc. No. 51). The trial court ordered Webb to serve the prison

terms consecutively for an aggregate sentence of 47 months in prison. The trial

court also ordered Webb to serve his sentence imposed in this case consecutively to

-2- Case No. 14-23-38

his sentence imposed in a Franklin County case. Lastly, the trial court imposed a

lifetime driver’s license suspension.

{¶5} On December 6, 2023, Webb filed his notice of appeal. He raises one

assignment of error for our review.

Assignment of Error

The Trial Court Erred As A Matter Of Law When It Failed To State On The Record The Factors That It Relied On Pursuant To Ohio Revised Code ¶ 2921.331(C)(b) Before Sentencing Mr. Webb.

{¶6} In his sole assignment of error, Webb challenges the sentence imposed

by the trial court. Specifically, Webb argues that the trial court should have imposed

a community-control sanction instead of a prison sentence because the trial court

failed to properly consider the factors under R.C. 2929.11, 2929.12, and

2921.331(C)(5)(b) prior to imposing a prison sentence. Webb further argues that

the trial court’s imposition of consecutive sentences is contrary to law.

Standard of Review

{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

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

otherwise contrary to law.” State v. Marcum, 2016-Ohio-1002, ¶ 1. Clear and

convincing evidence is that “‘which will produce in the mind of the trier of facts a

-3- Case No. 14-23-38

firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 22,

quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

Analysis

{¶8} We will begin by addressing Webb’s argument that his sentence is

contrary to law because the felony-sentencing guidelines under R.C. 2929.11,

2929.12, and 2921.331(C)(5)(b) weigh in favor of imposing a community-control

sanction rather than a prison sentence. When imposing a sentence, “‘trial courts

have full discretion to impose any sentence within the statutory range.’” State v.

Smith, 2015-Ohio-4225, ¶ 10 (3d Dist.), quoting State v. Noble, 2014-Ohio-5485, ¶

9 (3d Dist.). Here, as a third-degree felony, the failure to comply with order or

signal of a police officer carries a non-mandatory, definite sanction of 9-months to

36-months imprisonment. R.C. 2921.331(C)(5)(a)(ii), 2929.13(C), and

2929.14(A)(3)(b). Further, as a fourth-degree felony, receiving stolen property,

carries a non-mandatory, definite sanction of 6-months to 18-months imprisonment.

R.C. 2913.51(C), 2929.14(A)(4).

{¶9} “[A] sentence imposed within the statutory range is ‘presumptively

valid’ if the [trial] court considered applicable sentencing factors.” Maggette at ¶

31, quoting State v. Collier, 2011-Ohio-2791, ¶ 15 (8th Dist.). Because the trial

court sentenced Webb to 30 months in prison as to his failure-to-comply-with-order-

or-signal-of-a-police-officer conviction and to 17 months in prison as to his

-4- Case No. 14-23-38

receiving-stolen-property conviction, the trial court’s sentences as to those

convictions fall within the statutory range.

{¶10} When imposing a sentence for a felony offense, trial courts must

consider R.C. 2929.11 and 2929.12. R.C. 2929.11 provides, in its relevant part, that

the

overriding purposes of felony sentencing 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. 2929.11(A). “In advancing these purposes, sentencing courts are instructed to

‘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.’” Smith at ¶ 10, quoting R.C. 2929.11(A).

“Meanwhile, R.C. 2929.11(B) states that felony sentences must be ‘commensurate

with and not demeaning to the seriousness of the offender’s conduct and its impact

upon the victim’ and also be consistent with sentences imposed in similar cases.”

Id., quoting R.C. 2929.11(B).

{¶11} “In accordance with these principles, the trial court must consider the

factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s

conduct and the likelihood of the offender’s recidivism.” Id., citing R.C.

2929.12(A). “‘A sentencing court has broad discretion to determine the relative

-5- Case No. 14-23-38

weight to assign the sentencing factors in R.C. 2929.12.” Id. at ¶ 15, quoting State

v. Brimacombe, 2011-Ohio-5032, ¶ 18 (6th Dist.).

{¶12} “[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any

specific factual findings on the record.” State v. Jones, 2020-Ohio-6729, ¶ 20. “A

trial court’s statement that it considered the required statutory factors, without more,

is sufficient to fulfill its obligations under the sentencing statutes.” Maggette, 2016-

Ohio-5554, at ¶ 32 (3d Dist.).

{¶13} Thus, when imposing a felony sentence, “it is ‘[t]he trial court [that]

determines the weight afforded to any particular statutory factors, mitigating

grounds, or other relevant circumstances.’” State v. McKennelly, 2017-Ohio-9092,

¶ 15 (12th Dist.), quoting State v. Steger, 2016-Ohio-7908, ¶ 18 (12th Dist.). “The

fact that the trial court chose to weigh various sentencing factors differently than

how appellant would have weighed them does not mean the trial court erred in

imposing appellant’s sentence.” Id.

{¶14} “Further, R.C. 2921.331(C)(5)(b) outlines several factors that the

sentencing court must consider prior to determining the sentence for a violation of

R.C. 2921.331(B) when the offender caused a substantial risk of serious physical

harm to persons or property.” State v. Wingate, 2020-Ohio-6796, ¶ 12 (3d Dist.).

Those factors include:

(i) The duration of the pursuit;

(ii) The distance of the pursuit;

-6- Case No. 14-23-38

(iii) The rate of speed at which the offender operated the motor vehicle during the pursuit;

(iv) Whether the offender failed to stop for traffic lights or stop signs during the pursuit;

(v) The number of traffic lights or stop signs for which the offender failed to stop during the pursuit;

(vi) Whether the offender operated the motor vehicle during the pursuit without lighted lights during a time when lighted lights are required;

(vii) Whether the offender committed a moving violation during the pursuit;

(viii) The number of moving violations the offender committed during the pursuit;

(ix) Any other relevant factors indicting that the offender’s conduct is more serious than conduct normally constituting the offense.

R.C. 2921.331(C)(5)(b). “However, the trial court is not required to make specific

findings on the record regarding its consideration of these factors.” Wingate at ¶

12.

{¶15} At Webb’s sentencing hearing and in its sentencing entry, the trial

court considered the principles and purposes of felony sentencing under R.C.

2929.11, the seriousness and recidivism factors under R.C. 2929.12, and the

sentencing factors under R.C. 2921.331(C)(5)(b). (Nov. 29, 2023 Tr. at 10); (Doc.

No. 51). Nevertheless, Webb contends that his sentence is contrary to law because

the trial court did not discuss “any of the factors [under R.C. 2921.331(C)(5)(b)]

-7- Case No. 14-23-38

and the facts of the case that supported any of the factors.” (Appellant’s Brief at 5).

Webb further argues that the record does not clearly and convincingly support the

trial court’s findings under R.C. 2929.11 or 2929.12 because he “presented

compelling reasons for the court to place him on a community control sanction to a

CBCF and drug court” as opposed to a prison sentence. (Appellant’s Brief at 6). In

other words, Webb disagrees with the trial court’s application of the sentencing

guidelines under R.C. 2929.11, 2929.12, and 2921.331(C)(5)(b) to the facts and

circumstances of his case. Compare State v. Reed, 2021-Ohio-1623, ¶ 17 (3d Dist.)

(resolving that “Reed simply disagrees with the trial court’s application of these

factors to the facts and circumstances of his case”).

{¶16} The record in this case reveals that Webb’s argument is without merit.

Importantly, the Supreme Court of Ohio has directed Ohio’s courts of appeal that

R.C. 2953.08(G)(2)(a) does not provide a basis for an appellate court to modify or

vacate a sentence if “we ‘clearly and convincingly find[ ] that “the record does not

support the sentencing court’s findings under” certain specified statutory

provisions.’” (Emphasis added.) State v. Smith, 2022-Ohio-2565, ¶ 9 (1st Dist.),

quoting Jones, 2020-Ohio-6729, at ¶ 28, quoting R.C. 2953.08(G)(2)(a).

Importantly, R.C. 2921.331(C)(5)(b), “R.C. 2929.11[,] and R.C. 2929.12 are not

among the statutes listed in the provision.” Jones at ¶ 31. As a result, this court

may not modify or vacate a felony sentence based on a finding by clear and

convincing evidence that the record does not support the trial court’s findings under

-8- Case No. 14-23-38

R.C. 2921.331(C)(5)(b), 2929.11, or 2929.12. See Reed at ¶ 19, citing Jones at ¶

32-39. Consequently, “‘when reviewing felony sentences that are imposed solely

after considering the factors in R.C. 2929.11[, ]R.C. 2929.12[, and

2921.331(C)(5)(b),], we shall no longer analyze whether those sentences are

unsupported by the record. We simply must determine whether those sentences are

contrary to law.’” Id., quoting State v. Dorsey, 2021-Ohio-76, ¶ 18 (2d Dist.).

{¶17} In this case, the trial court determined that the prison sentences that it

imposed are consistent with the principles and purposes of felony sentencing set

forth in R.C. 2929.11, the seriousness and recidivism factors under R.C. 2929.12,

and the sentencing factors under R.C. 2921.331(C)(5)(b). Specifically, in assessing

the seriousness of Webb’s conduct, the trial court considered the factors under R.C.

2921.331(C)(5)(b). Even though Webb argues that the trial court did not discuss

“what factors [it] considered and relied on when fashioning [his] sentence,” “‘[t]he

[trial] court is not required by statute or otherwise to state its consideration of [the

R.C. 2921.331(C)(5)(b)] statutory factors on the record nor make any specific

finding in relation thereto.’” (Appellant’s Brief at 5); Wingate, 2020-Ohio-6796, at

¶ 23 (3d Dist.), quoting State v. Anderson, 2004-Ohio-2858, ¶ 22 (8th Dist.).

{¶18} Importantly, “Ohio courts have held that where the trial court found

the defendant guilty of the charge of failure to comply with the order or signal of a

police officer, ‘“[t]he court found defendant guilty of the charges based upon the

facts presented by the State; therefore, the court necessarily considered those facts

-9- Case No. 14-23-38

which fell within R.C. 2921.331(C)(5)(b)(i)-(ix).”’” Id., quoting State v. Jordan,

2011-Ohio-6015, ¶ 18 (3d Dist.), quoting Anderson at ¶ 22. Here, the State provided

an explanation of circumstances at Webb’s change-of-plea hearing as well as a

synopsis of Webb’s conduct at Webb’s sentencing hearing. Consequently, we

conclude that the trial court properly considered the factors under R.C.

2921.331(C)(5)(b) when it imposed Webb’s sentence. Accord Jordan at ¶ 18-20

(resolving that the trial court considered the required statutory factors under R.C.

2921.331(C)(5)(b) despite the trial court’s failure to specifically reference the

factors).

{¶19} Furthermore, after weighing the seriousness and recidivism factors,

the trial court concluded that Webb was likely to commit future crimes because he

has a history of criminal convictions. See R.C. 2929.12(D)(2), (3). The trial court

also weighed against Webb the evidence that he had “significant charges pending

against him in Franklin County.” (Doc. No. 51). Likewise, the trial court noted that

Webb’s Ohio Risk Assessment System score was a “31,” which indicates that he

has a “high” risk of reoffending. (Nov. 29, 2023 Tr. at 10).

{¶20} Therefore, based on our review of the record, even though Webb

would have weighed the considerations under R.C. 2929.11, 2929.12, and

2921.331(C)(5)(b) differently, we conclude that the trial court did not abuse its

discretion by imposing a prison sentence instead of a community-control sanction.

See State v. West, 2022-Ohio-4069, ¶ 21 (3d Dist.). Therefore, because Webb’s

-10- Case No. 14-23-38

sentence is within the sentencing range and the trial court properly considered R.C.

2929.11, 2929.12, and 2921.331(C)(5)(b), Webb’s sentence is not contrary to law.

See Reed, 2021-Ohio-1623, at ¶ 20 (3d Dist.).

{¶21} Lastly, Webb argues that the trial “court’s combined sentence of forty-

seven months in prison, which has to be served consecutive to any other sentence

he is serving, creates a sentence that is not supported by the record.” (Appellant’s

Brief at 7). To the extent that Webb is challenging the trial court’s order that he

serve his prison sentences consecutively, we conclude such to be specious.

Decisively, consecutive sentences are mandatory in this case under R.C.

2929.14(C)(3) since Webb was convicted of a felony violation of R.C. 2921.331.

See State v. Clanin, 2024-Ohio-2445, ¶ 20 (5th Dist.). Therefore, Webb’s

consecutive sentences are not contrary to law.

{¶22} Webb’s assignment of error is overruled.

{¶23} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, P.J. and WALDICK, J., concur.

/hls

-11-