2023 Ohio 336
Ohio Ct. App.2023Background
- Damion A. Richey was indicted in four separate Clermont County cases after multiple searches and a controlled buy; prosecutors charged him with a total of 51 felony drug counts (methamphetamine, LSD/psilocin, fentanyl-related compounds, MDA, clonazolam, cocaine, etc.).
- On April 12, 2022, Richey pled guilty to 15 felony counts across the four cases; the trial court accepted his pleas as knowing, intelligent, and voluntary.
- At a joint sentencing on June 29, 2022, the court imposed an aggregate term of 15 to 22.5 years imprisonment (with 430 days jail credit) by ordering certain multi-year terms to run consecutively and others concurrently; postrelease control and other sanctions were imposed.
- The trial court expressly made the consecutive-sentence findings required by R.C. 2929.14(C)(4): consecutive terms were necessary to protect the public or punish, not disproportionate to the danger posed, and at least one aggravating factor applied (courses of conduct/harm and offender’s criminal history).
- Richey appealed, arguing (1) consecutive sentences were disproportionate to the danger he posed, (2) the harm-from-multiple-offenses clause under R.C. 2929.14(C)(4)(b) did not apply, and (3) the aggregate sentence was not the minimum sanction required by R.C. 2929.11.
- The Twelfth District reviewed under R.C. 2953.08(G)(2)(a) (de novo as to whether the record clearly and convincingly fails to support the trial court’s findings) and affirmed the sentence, rejecting each of Richey’s arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consecutive sentences were supported under R.C. 2929.14(C)(4) (proportionality/not disproportionate to danger) | State: trial court made required findings; record (drug quantities, firearm, repeated violations) supports not-disproportionate finding | Richey: had no prior felony convictions and record shows no actual victims/harm, so consecutive terms are disproportionate | Affirmed — record does not clearly and convincingly show the court’s proportionality finding is unsupported |
| Whether the "harm" course-of-conduct factor (R.C. 2929.14(C)(4)(b)) was satisfied | State: trial court found multiple offenses were part of courses of conduct and harm was sufficiently great/unusual | Richey: harm was not shown (no reported injuries), so (b) fails | Even if (b) were deficient, harmless — trial court also relied on (c) (criminal history), so consecutive terms stand |
| Whether the aggregate sentence violated R.C. 2929.11 (not the minimum sanction; undue burden on resources) | State: trial court considered R.C. 2929.11/2929.12 and reasonably imposed the aggregate consecutive sentence | Richey: a lesser sentence would satisfy R.C. 2929.11’s minimum-sanction requirement | Rejected — appellate review is limited by R.C. 2953.08(G)(2); court may not substitute its judgment for trial court’s weighing of R.C. 2929.11/2929.12 factors; sentence affirmed |
Key Cases Cited
- State v. Gwynne, 158 Ohio St.3d 279 (Ohio 2019) (explains R.C. 2953.08(G)(2) limits and the standards for reviewing consecutive sentences)
- State v. Grate, 164 Ohio St.3d 9 (Ohio 2020) (trial court must find at least one R.C. 2929.14(C)(4)(a)-(c) aggravating circumstance to impose consecutive terms)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (defines "clear and convincing" standard referenced in sentencing review)
- State v. Jones, 163 Ohio St.3d 242 (Ohio 2020) (clarifies appellate courts may not reweigh R.C. 2929.11/2929.12 matters under R.C. 2953.08(G)(2))
- State v. Toles, 166 Ohio St.3d 397 (Ohio 2021) (addresses limits on appellate second-guessing of trial court sentencing decisions)