State v. Yates

2023 Ohio 1019

• Court: Ohio Court of Appeals
• Decided: March 24, 2023
• Docket: 22 CO 0006
• Status: Published

Opinion

[Cite as State v. Yates, 2023-Ohio-1019.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JASON W. YATES,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 22 CO 0006

Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2020 CR 022

BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT: Affirmed.

Atty. Vito Abruzzino, Columbiana County Prosecutor and Atty. Ryan P. Weikart, Chief Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee

Atty. Joseph W. Gardner, Joseph W. Gardner Co., LPA, 1386 NE River Road, Lake Milton, Ohio 44429, for Defendant-Appellant.

Dated: March 24, 2023 –2–

WAITE, J.

{¶1} Appellant Jason W. Yates appeals a February 8, 2022 judgment entry of

the Columbiana County Court of Common Pleas convicting him of multiple drug related

offenses. Appellant challenges his sentence based on various comments made by the

state at the sentencing hearing. For the reasons that follow, Appellant’s arguments are

without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} This appeal concerns a large-scale drug investigation. Because Appellant’s

charges resulted in a plea agreement, details surrounding the investigation are sparse.

However, Appellant admittedly is a drug dealer who sells on a moderate level in an area

spanning across multiple Ohio counties. This appeal stems from a drug investigation that

resulted in the arrest and indictment of fourteen individuals, including Appellant. It

appears that although Appellant is not considered a high-level dealer, he operates as

somewhat of a ring leader for this group of individuals in Columbiana County.

{¶3} On January 9, 2020, Appellant and his thirteen codefendants were charged

with thirty-five counts of drug related crimes by secret indictment. Appellant was indicted

on the following charges: one count of aggravated trafficking in drugs, a felony of the

fourth degree in violation of R.C. 2925.03(A)(1); one count of possession of cocaine, a

felony of the fourth degree in violation of R.C. 2925.11(A) with a forfeiture specification

involving $2,028 in accordance with R.C. 2941.1417(A); one count of possession of

heroin, a felony of the fifth degree in violation of R.C. 2925.11(A) with a forfeiture

specification involving $2,028 in accordance with R.C. 2941.1417(A); two counts of

aggravated possession of drugs, a felony of the fifth degree in violation of R.C. 2925.11(A)

Case No. 22 CO 0006 –3–

with a forfeiture specification involving $2,028 in accordance with R.C. 2941.1417(A); and

possession of drugs, a felony of the fifth degree in violation of R.C. 2925.11(A) with a

forfeiture specification involving $2,028 in accordance with R.C. 2941.1417(A).

{¶4} On February 9, 2021, Appellant pleaded guilty to all counts as charged in

his indictment. There was no agreement on sentencing, but the state asserted that it

would recommend an aggregate sentence of eighteen months of imprisonment. The

court scheduled Appellant’s sentencing hearing for April 22, 2021.

{¶5} On April 19, 2021, Appellant filed a motion to continue his sentencing

hearing. Appellant apparently suffers from uncontrolled diabetes, which has caused

various other health problems. In his motion for continuance, Appellant claimed that he

was hospitalized in a “skilled nursing home” “for treatment of diabetic related open

wounds.” (4/19/21 Motion to Continue.) On April 20, 2021, the trial court granted the

motion and continued the sentencing hearing to May 20, 2021. On May 14, 2021,

Appellant filed a second motion to continue sentencing because he continued to suffer

open wounds. A doctor’s note attached to the motion stated that Appellant would likely

need one to two months to fully recover. On May 18, 2021, the court granted the motion

and continued the hearing until August 6, 2021. On August 4, 2021, Appellant filed a third

motion to continue sentencing due to a MRSA infection. In the motion he specified that

his condition would be reevaluated in ten days. The court granted the motion and

continued the hearing beyond the ten days requested, setting it for August 27, 2021. On

August 24, 2021, Appellant filed his fourth motion to continue sentencing, still based on

the MRSA infection. Although the accompanying doctor’s note did not specify any

timeline for Appellant’s recovery, in his motion he requested a continuance of four weeks.

Case No. 22 CO 0006 –4–

The court granted the motion and continued the hearing until October 8, 2021, but on

October 4, 2021, Appellant filed a fifth motion for continuance due to the MRSA infection.

Appellant’s motion was again granted and the hearing was set for November 29, 2021,

but on that date Appellant filed a sixth motion to continue, alleging he was hospitalized.

On November 30, 2021, the court granted the motion and continued the sentencing

hearing until December 20, 2021.

{¶6} Appellant did not file seeking a subsequent continuance, but failed to

appear at the December 20, 2021 hearing. The court issued a judgment entry on that

date noting Appellant’s failure to appear, and after weighing Appellant’s health issues

against his criminal record, which included a pending criminal case in Summit County,

the court issued a bench warrant for Appellant’s arrest.

{¶7} The Columbiana County prosecutor received a tip from the Mahoning

County Prosecutor’s Office that Appellant had been arrested in Mahoning County at a

hotel, and Appellant was subsequently arrested on the bench warrant in this matter on

January 21, 2022. Apparently, officers in Mahoning County located Appellant hiding

underneath a bed in a hotel room. Officers found methamphetamine in the room, which

Appellant initially said belonged to him, leading to his arrest. Appellant later changed his

statement and claimed that the drugs were not his.

{¶8} Appellant appeared at a sentencing hearing in this matter on February 3,

2022. At its commencement, Appellant’s appointed counsel informed the court that

Appellant had actually retained an attorney from West Virginia. However, finding that this

lawyer had not filed a notice of appearance, the court declined appointed counsel’s oral

motion for a continuance. During the hearing, the state mistakenly first recommended a

Case No. 22 CO 0006 –5–

sentence of twenty-four months, but when reminded by defense counsel that the plea

bargain called for a recommendation of eighteen months the state changed its

recommendation to conform with the earlier agreement.

{¶9} Appellant expressed disappointment the court had issued a bench warrant

because he thought the court was “on board” with allowing him to seek treatment before

sentencing and he believed the court would allow him to completely regain his health

before imposing a sentence. He claimed that he had been hospitalized throughout the

entire period of continuance in this matter. The court responded by stating “[t]he medical

issues that [Appellant] suffers from are unfortunate. But I do note that he was arrested

January 21st, in a hotel room, not in a hospital, not in a nursing home, and drugs were

recovered from that Holiday Inn room.” (Sentencing Hrg. Tr., p. 22.) The court sentenced

Appellant to an aggregate sentence of three and one-half years of incarceration.

Appellant inquired as to whether he could “bond out” but was informed by the court that

he could not. It is from this entry that Appellant timely appeals.

ASSIGNMENT OF ERROR

The Prosecution breached the felony plea agreement when the assistant

prosecutor recommended that the Defendant-Appellant be sentenced to 24

months after the parties agreed to a 18 month sentence recommendation.

{¶10} Appellant does not now challenge the court’s issuance of a bench warrant

or its refusal to continue the matter after he failed to appear at his December 20, 2021

sentencing hearing. Instead, Appellant takes issue with the state’s sentencing

Case No. 22 CO 0006 –6–

recommendation. In response, the state argues that it simply made an error that was

immediately corrected, causing no harm to Appellant.

{¶11} “[A]n appellate court may vacate or modify a felony sentence on appeal 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, 59 N.E.3d 1231, ¶ 1.

A sentence is considered to be clearly and convincingly contrary to law if it

falls outside of the statutory range for the particular degree of offense; if the

trial court failed to properly consider the purposes and principles of felony

sentencing as enumerated in R.C. 2929.11 and the seriousness and

recidivism factors set forth in R.C. 2929.12; or if the trial court orders

consecutive sentences and does not make the necessary consecutive

sentence findings.

State v. Pendland, 7th Dist. Mahoning No. 19 MA 0088, 2021-Ohio-1313, ¶ 41; citing

State v. Collins, 7th Dist. Noble No. 15 NO 0429, 2017-Ohio-1264, ¶ 9; State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 30.

{¶12} In addition, a court of appeals is limited in its review of a felony sentence.

The Ohio Supreme Court has clarified an appellate court’s review of felony sentences in

State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. The Jones Court

clarified the standard of review for felony sentences that was previously announced in

Marcum. The Marcum Court held “that R.C. 2953.08(G)(2)(a) compels appellate courts

to modify or vacate sentences if they find by clear and convincing evidence that the record

Case No. 22 CO 0006 –7–

does not support any relevant findings under ‘division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the

Revised Code.’ ” Marcum, supra, ¶ 22. The Jones Court did not specifically overrule

Marcum, but clarified certain dicta to reflect that “[n]othing in R.C. 2953.08(G)(2) permits

an appellate court to independently weigh the evidence in the record and substitute its

judgment for that of the trial court concerning the sentence that best reflects compliance

with R.C. 2929.11 and 2929.12.” Jones, supra, at ¶ 42.

{¶13} At the outset, we note that since there was no agreement on sentencing

when Appellant agreed to plead guilty to these crimes, the trial court remained free to

exercise its discretion in sentencing. While the state could recommend a specific term

and Appellant was free to ask for a lesser prison sentence, ultimately the trial court retains

discretion to sentence and is free to ignore the requests of both the state and the

defendant in imposing a sentence. State v. Wise, 7th Dist. Belmont No. 16 BE 0003,

2017-Ohio-7502, ¶ 12. That said, in a plea agreement, when the state agrees to

recommend a certain sentence to the sentencing judge, it is not free to simply make some

other recommendation and must uphold its part of the bargain, barring some valid legal

reason otherwise.

{¶14} Appellant believes that the state breached the plea agreement by stating

that the recommended period of incarceration pursuant to the agreement was twenty-four

months when the agreement called for a recommendation of only eighteen months. While

Appellant is correct in that the state initially erred in describing its recommendation, the

state did correct this mistake as soon as the issue was brought to the state’s attention.

For context, the entire exchange between the parties and the court is provided:

Case No. 22 CO 0006 –8–

[PROSECUTOR]: So I would ask the Court [to] consider going higher than

the 24-month recommendation based on [Appellant’s] conduct.

***

[DEFENSE COUNSEL]: * * * The plea agreement recommends an 18-

month term of incarceration, not 24 as previously stated by Mr. Weikart.

[PROSECUTOR]: Your Honor, I would say 18 months was it, I was looking

off of a previous version. As the Court’s aware from what’s in there, I didn’t

say that on purpose.

THE COURT: Okay. Thank you. I’m looking at the felony plea agreement

filed February 9th. That’s the one that was filed. There may well be --

[DEFENSE COUNSEL]: Your Honor, that’s probably --

[PROSECUTOR]: That’s the filing date on it.

[DEFENSE COUNSEL]: Yeah.

THE COURT: All right. Thank you.

(Sentencing Hrg. Tr., pp. 6, 13, 15.)

{¶15} It is clear from this passage that the prosecutor misspoke, but corrected

himself when advised that his statement was incorrect. The record reflects that the judge

Case No. 22 CO 0006 –9–

was in possession of a copy of the plea agreement, and counsel for both sides agreed

that this copy contained the correct eighteen-month recommendation. Because the minor

error was corrected and the court acknowledged the correction, no further action on

counsel’s part was warranted.

{¶16} Appellant has raised additional issues related to this argument. In

Appellant’s brief he observes: “[i]t is interesting that a prosecutor would argue that he

desires to incarcerate someone for more time than the law and the plea agreement

allows.” (Appellant’s Brf., p. 4.) In this same vein, Appellant also claims the state argued

to the trial court that his sentence should exceed the maximum allowed for felonies of the

fourth and fifth degree.

{¶17} As to Appellant’s suggestion that the state breached the plea agreement in

its initial recommendation, we note that Appellant himself breached the agreement’s

requirement that he attend all court proceedings. Appellant failed to appear at his

December 20, 2021 sentencing hearing and was not apprehended until a month later. As

noted by the trial court, police arrested Appellant in Mahoning County at a hotel where

there was evidence of drug activity on the part of Appellant, as police located him hiding

underneath a bed in the room where illegal drugs were found. It appears that while

Appellant was attempting to convince the court that he was too ill to be sentenced in this

case, he was well enough to participate in drug activity at a hotel. In addition, Appellant

has also been charged in a separate, unrelated drug arrest in Stark County that

apparently occurred while Appellant awaited sentencing, here. Thus, as Appellant

breached the terms of the plea agreement the state would not have necessarily been

bound to abide by those terms.

Case No. 22 CO 0006 – 10 –

{¶18} As to the inference that the state recommended a sentence of more time

than allowed by law, this is disingenuous and a misrepresentation of the state’s comment.

At the sentencing hearing, the state commented that while Appellant’s charges in this

matter were not at the level of felony one or felony two, Appellant’s conduct in this case

was egregious:

And though I don’t think felony four and felony five penalties -- I don’t think

they can adequately cover the damage that [Appellant] has done in this

community, but that’s what we have, Judge, and that’s a start. And I would

ask that the Court impose a strict prison term on him and send the message

that that’s not going to happen.

(Sentencing Hrg. Tr., p. 12.)

{¶19} The state did not request that the court sentence Appellant to a longer

sentence than lawfully allowed, but instead was arguing for the court to impose a “strict”

sentence for the charged offenses because a lesser sentence would not sufficiently

punish Appellant for his behavior. The state acknowledged that the court could not

sentence Appellant for a higher degree felony but expressed frustration as to the impact

Appellant’s actions have had on the community. The record does not support Appellant’s

contentions otherwise.

{¶20} Accordingly, Appellant’s sole assignment of error is without merit and is

overruled.

Conclusion

Case No. 22 CO 0006 – 11 –

{¶21} Appellant challenges his sentence based on his allegation that various

comments made by the state at the sentencing hearing caused prejudice. For the

reasons provided, Appellant’s arguments are without merit and the judgment of the trial

court is affirmed.

Robb, J., concurs.

D’Apolito, P.J., concurs.

Case No. 22 CO 0006 [Cite as State v. Yates, 2023-Ohio-1019.]

For the reasons stated in the Opinion rendered herein, the assignment of error is

overruled and it is the final judgment and order of this Court that the judgment of the Court

of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.