State v. Wingate

2020 Ohio 6796

• Court: Ohio Court of Appeals
• Decided: December 21, 2020
• Docket: 6-20-07
• Status: Published

Opinion

[Cite as State v. Wingate, 2020-Ohio-6796.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-20-07

v.

BRIAN DOUGLAS WINGATE, OPINION DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20192140

Judgment Affirmed

Date of Decision: December 21, 2020

APPEARANCES:

Michael B. Kelley for Appellant

Jason M. Miller for Appellee Case No. 6-20-07

PRESTON, J.

{¶1} Defendant-appellant, Brian D. Wingate (“Wingate”), appeals the March

9, 2020 judgment of sentence of the Hardin County Court of Common Pleas. For

the reasons that follow, we affirm.

{¶2} This case arises from a September 30, 2019 incident in which a law

enforcement officer observed Wingate operating a motorcycle without a license

plate in Kenton. When the law enforcement officer initiated a traffic stop, Wingate

initially complied by pulling over on the side of the road. However, shortly

thereafter, Wingate fled the scene, initiating a pursuit of his motorcycle. During the

pursuit, which lasted over 14 miles, Wingate committed several additional traffic

violations, including traveling in excess of 100 miles per hour and forcing several

vehicles off the road. The pursuit ended when Wingate crashed his vehicle into a

corn field.

{¶3} On October 16, 2019, the Hardin County Grand Jury indicted Wingate

on one count of failure to comply with the order or signal of a police officer in

violation of R.C. 2921.331(B), (C)(5)(a)(ii), a third-degree felony. (Doc. No. 2).

On November 6, 2019, Wingate appeared for arraignment and entered a plea of not

guilty to the count in the indictment. (Doc. No. 10).

{¶4} A change of plea hearing was held on January 14, 2020. (Doc. No. 16).

Pursuant to a negotiated plea agreement, Wingate withdrew his previous plea of not

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guilty and pleaded guilty to the count in the indictment. (Doc. Nos. 16, 17). In

exchange, the State agreed to recommend five years of community control. (See

Doc. No. 16). The trial court accepted Wingate’s guilty plea, found him guilty, and

ordered a presentence investigation. (Doc. No. 17). The following day, the trial

court filed its judgment entry of conviction. (Id.)

{¶5} On February 12, 2020, Wingate appeared for a sentencing hearing.

(Doc. No. 23). At the hearing, the parties jointly recommended that the trial court

sentence Wingate to five years of community control. (Id.); (Feb. 12, 2020 Tr. at 7-

9). However, the trial court rejected the parties’ jointly-recommended sentence and

sentenced Wingate to 18 months in prison. (Doc. No. 23). On March 5, 2020,

Wingate appeared for re-sentencing for the limited purpose of implementing a four-

year mandatory driver’s license suspension. (Id.). On March 9, 2020, the trial court

filed its judgment entry of sentence. (Id.).

{¶6} On March 17, 2020, Wingate filed his notice of appeal. (Doc. No. 26).

He raises one assignment of error for our review.

Assignment of Error

The trial court abused its discretion in sentencing Appellant to a prison term which was not supported by the record when it relied upon and considered facts that were not relevant, or not proven, or not accurate.

{¶7} In his assignment of error, Wingate argues that the trial court erred by

sentencing him to 18 months in prison. Specifically, Wingate contends that the

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record does not support the imposition of a prison sentence. Wingate also alleges

that the trial court’s sentence was based on an inaccurate record and irrelevant

information.

{¶8} 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, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a 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.

{¶9} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶

9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing

State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. As a low-

tier third-degree felony, failure to comply with the order or signal of a police officer

with a finding that the offender caused a substantial risk of serious physical harm to

persons or property carries a sanction of 9 to 36 months’ imprisonment. R.C.

2921.331(B), (C)(5)(a)(ii); R.C. 2929.14(A)(3)(b).

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{¶10} Here, Wingate was sentenced to 18 months’ imprisonment.

Accordingly, the trial court’s sentence is within the statutory range. “‘[A] sentence

imposed within the statutory range is “presumptively valid” if the [trial] court

considered applicable sentencing factors.’” State v. Nienberg, 3d Dist. Putnam Nos.

12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 10, quoting State v. Maggette, 3d Dist.

Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v. Collier, 8th Dist.

Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

{¶11} R.C. 2929.11 provides, in pertinent 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 and local government

resources.” R.C. 2929.11(A). To achieve the overriding purposes of felony

sentencing, R.C. 2929.11 directs courts 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.”

Id. In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall

be reasonably calculated to achieve the three overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences

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imposed for similar crimes committed by similar offenders.” “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.” Smith at ¶ 10, citing R.C. 2929.12(A). “‘A

sentencing court has broad discretion to determine the relative weight to assign the

sentencing factors in R.C. 2929.12.’” Id. at ¶ 15, quoting State v. Brimacombe, 195

Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio

St.3d 208, 215 (2000).

{¶12} 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. Jordan, 3d Dist. Hardin No. 6-11-05, 2011-

Ohio-6015, ¶ 15. These factors include:

(i) The duration of the pursuit;

(ii) The distance of the pursuit;

(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;

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(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. Jordan at ¶ 16,

citing State v. Jones, 8th Dist. Cuyahoga No. 89499, 2008-Ohio-802, ¶ 18 and State

v. Anderson, 8th Dist. Cuyahoga No. 83285, 2004-Ohio-2858, ¶ 22.

{¶13} Wingate’s chief objection is that the trial court did not impose the

jointly recommended sentence of five years of community control. However, “trial

courts * * * are not bound by a jointly recommended sentence.” State v. Spencer,

3d Dist. Hardin Nos. 6-12-15 and 6-12-16, 2013-Ohio-137, ¶ 10, citing State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 28. “‘A trial court does not err by

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imposing a sentence greater than “that forming the inducement for the defendant to

plead guilty when the trial court forewarns the defendant of the applicable penalties,

including the possibility of imposing a greater sentence than that recommended by

the prosecutor.”’” Id., quoting State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58,

2005-Ohio-3674, ¶ 6, quoting State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-

4772, ¶ 13 (5th Dist.). However, Wingate has not filed a transcript of the change of

plea hearing for our review. Further, Wingate does not allege that he was not

warned that the trial court was not required to impose the jointly-recommended

sentence. Accordingly, we will assume that the trial court duly notified Wingate

that it was not required to impose the jointly-recommended sentence. See State v.

Brofford, 3d Dist. Union No. 14-12-08, 2013-Ohio-3781, ¶ 53 (“‘When portions of

the transcript necessary for resolution of assigned errors are omitted from the record,

the reviewing court has nothing to pass upon and thus, as to those assigned errors,

the court has no choice but to presume the validity of the lower court’s proceedings,

and affirm.’”), quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199

(1980). Therefore, provided that the trial court properly considered the purposes of

felony sentencing set forth in R.C. 2929.11(A), the R.C. 2929.12(B)-(E) felony-

sentencing factors, and the 2921.331(C)(5)(b) factors, the trial court’s deviation

from the jointly-recommended sentence will not support a modification or vacation

of Wingate’s sentence.

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{¶14} From the record, it is clear that the trial court sentenced Wingate after

considering the overriding purposes of felony sentencing set forth in R.C.

2929.11(A) and the relevant R.C. 2929.12(B)-(E) and R.C. 2921.331(C)(5)(b)

factors. Prior to announcing Wingate’s sentence, the trial court discussed the

overriding purposes of felony sentencing and specifically stated that its “primary

duty is always to protect the public” and that in the trial court’s opinion, a term in

prison was necessary to protect the public from future crime by Wingate. (Feb. 12,

2020 Tr. at 19-20). See R.C. 2929.11(A). Further, the trial court stated that Wingate

was “not amenable to any * * * combination” of available community resources.

(Feb. 12, 2020 Tr. at 20). See R.C. 2929.11(A). The trial court also expressed that

the shortest prison term would “demean the seriousness” of Wingate’s actions.

(Feb. 12, 2020 Tr. at 20). See R.C. 2929.11(A). Therefore, the record clearly

demonstrates that the trial court considered the purposes of felony sentencing set

forth in R.C. 2929.11(A) when sentencing Wingate.

{¶15} The record also supports that the trial court considered the applicable

R.C. 2929.12(B)-(E) factors. First, the trial court considered the factors indicating

that Wingate’s conduct is more serious than conduct normally constituting the

offense. See R.C. 2929.12(B). The trial court assumed the community was the

victim of Wingate’s criminal activity and stated that his actions created “a

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substantial risk of serious physical harm.” (Feb. 12, 2020 Tr. at 18). See R.C.

2929.12(B).

{¶16} The trial court also addressed whether Wingate had responded

favorably to sanctions previously imposed for criminal convictions. See R.C.

2929.12(D)(3). The trial court stated that when Wingate’s criminal conduct

occurred, he had cases pending in another county. (Feb. 12, 2020 Tr. at 18). See

R.C. 2929.12(D)(3). The trial court also found that Wingate had “a history of

criminal convictions” and has “not responded favorably” to prior sanctions. (Feb.

12, 2020 Tr. at 18). See R.C. 2929.12(D)(3).

{¶17} Next, the trial court considered the factors indicating that Wingate is

not likely to commit future crimes. See R.C. 2929.12(E). The trial court found that

Wingate had no juvenile delinquency adjudications. (Feb. 12, 2020 Tr. at 19). See

R.C. 2929.12(E)(1). However, the trial court found that none of the other R.C.

2929.12(E) factors applied to Wingate. (Feb. 12, 2020 Tr. at 19). See R.C.

2929.12(E).

{¶18} Nevertheless, Wingate argues that the trial court abused its discretion

by relying on “inaccurate” documents. Specifically, Wingate argues that the

documents the trial court relied on in fashioning his sentence, particularly the PSI,

were inaccurate and incomplete. In support of his contention that the trial court

abused its discretion by relying on inaccurate information, Wingate relies on the

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trial court’s statement that he was charged with approximately 15 crimes in 5 years.

(Feb. 12, 2020 Tr. at 12). Wingate argues that several of the charges were

subsequently dropped, some during the pendency of the current case. Thus,

Wingate contends that he was only convicted of 11 crimes in 5 years. Accordingly,

Wingate argues that the trial court relied on incorrect information and, therefore,

abused its discretion.

{¶19} First, at the beginning of the sentencing hearing, Wingate’s trial

counsel and the State both expressed that they did not have any objections to the

information contained in the PSI. (Feb. 12, 2020 Tr. at 3-4). Next, we note that the

trial court stated that Wingate was charged with approximately 15 crimes in 5 years.

(Id. at 12, 17). Thus, even if we assume that Wingate’s statement that several of the

charges were later dismissed is true, Wingate does not contest that he was charged

with the crimes referenced by the trial court even if he was not ultimately convicted

of them. Additionally, whether Wingate had 15 or 11 misdemeanor convictions in

the previous 5 years, Wingate admitted to the trial court that he had an “extensive

misdemeanor record.” (Id. at 15). Further, to the extent that the trial court’s

documents relating to his criminal history were incomplete, Wingate acknowledges

that he “corrected” the perceived inaccuracies at the sentencing hearing.

(Appellant’s Brief at 11-12). (See Feb. 12, 2020 Tr. at 13-14, 25). Accordingly, we

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cannot find that the trial court abused its discretion by relying on inaccurate

documents when fashioning his sentence.

{¶20} Wingate also alleges that the trial court abused its discretion by relying

on irrelevant information when determining his sentence. Specifically, Wingate

contends that the trial court’s reference to his $13,000 child support arrearage

indicates that the trial court considered “irrelevant” information when fashioning

his sentence because his child support obligation was not pertinent to the present

case. However, the PSI indicates that a warrant for Wingate’s arrest was filed in

October 2019 for nonsupport. (PSI at 8). Accordingly, Wingate’s failure to make

child support payments was relevant to his prior criminal history. See R.C.

2929.12(D)(3). Further, at the sentencing hearing, the trial court stated that because

Wingate owes $13,000 in child support, the trial court was “not going to exacerbate

that problem” by imposing a fine. (Feb. 12, 2020 Tr. at 20). Thus, the record

indicates that Wingate actually benefitted from the trial court’s reference to his child

support obligation.

{¶21} Finally, the record supports that the trial court also considered the R.C.

2921.331(C)(5)(b) factors. The trial court stated that Wingate did not have a license

plate on his vehicle, ran several stop signs during the pursuit, drove through a private

yard, drove in excess of 100 miles an hour, forced other vehicles off the road, passed

vehicles on the right side, ran a red light, and crashed his motorcycle into a field.

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(Feb. 12, 2020 Tr. at 5). Further, when the pursuit ended, Wingate admitted that he

saw the law enforcement officer and had traveled over 14 miles before he drove his

motorcycle into a field, thereby ending the pursuit. (Id.). Moreover, Wingate

disclosed that “when he gets on a motorcycle, he doesn’t care about anything.” (Id.).

The trial court stated that it considered all of the R.C. 2921.331(C)(5)(b) factors and

found all of the factors except one to be adverse to Wingate. (Feb. 12, 2020 Tr. at

17-18). See R.C. 2921.331(C)(5)(b). With respect to R.C. 2921.331(C)(5)(b)(vi),

which requires the trial court to consider “[w]hether the offender operated the motor

vehicle during the pursuit without lighted lights during a time when lighted lights

are required,” the trial court stated that it did not know what time of day the incident

occurred and whether Wingate was driving with lights on, if they were required.

(Feb. 12, 2020 Tr. at 17). See R.C. 2921.331(C)(5)(b)(vi).

{¶22} Wingate argues that because the trial court did not have specific

information regarding the time of day of the incident, the trial court abused its

discretion by sentencing him without having “actual evidence or facts” to support

all of the R.C. 2921.331(C)(5)(b) sentencing factors. (Appellant’s Brief at 14). We

disagree.

{¶23} “The [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.” State v. Anderson, 8th Dist.

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Cuyahoga No. 83285, 2004-Ohio-2858, ¶ 22. Further, 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 which fell within R.C. 2921.331(C)(5)(b)(i)-

(ix).’” Jordan, 2011-Ohio-6015, at ¶ 18, quoting Anderson at ¶ 22 and citing Jones,

2008-Ohio-802 at ¶ 1 and State v. Oliver, 7th Dist. Mahoning No. 07 MA 169, 2008-

Ohio-6371, ¶ 30. Here, although the trial court did not have specific information

with respect to the time of day of the incident and whether Wingate’s lights were

activated during the pursuit, the trial court chose to give Wingate the benefit of the

doubt and did not find that R.C. 2921.331(C)(5)(b)(vi) was adverse to Wingate.

Thus, Wingate was not prejudiced by the trial court’s lack of knowledge of the time

of day of the incident. Accordingly, we find that the trial court did consider the

factors set forth in R.C. 2921.331(C)(5)(b) and presented its findings in

consideration thereof when it imposed its sentence. See Jordan at ¶ 18-20 (holding

that the trial court considered all of the required statutory factors despite the trial

court’s failure to specifically reference the factors); State v. Tanner, 5th Dist.

Muskingum No. CT2003-0025, 2003-Ohio-7274, ¶ 44 (finding that the record

demonstrated that the trial court considered the R.C. 2921.331 sentencing factors

where it “discuss[ed] some of them” and noted that “the probation officer testified

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to others”); State v. Banks, 8th Dist. Cuyahoga Nos. 81679 and 81680, 2003-Ohio-

1171, ¶ 31-32 (holding that the trial court considered the R.C. 2921.331 factors

where it made reference to some, but not all, of the factors at the sentencing hearing).

{¶24} In conclusion, the trial court properly considered the purposes of

felony sentencing and applied the relevant R.C. 2929.12 and R.C.

2921.331(C)(5)(b) factors. Furthermore, Wingate’s sentence is within the statutory

range. Therefore, there is not clear and convincing evidence that Wingate’s

sentence is unsupported by the record or that his sentence is otherwise contrary to

law. See Nienberg, 2017-Ohio-2920, at ¶ 23.

{¶25} Wingate’s assignment of error is overruled.

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

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

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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