State v. Bowles

Nov 19, 2021
L-21-1074
Versions:

DECISION AND JUDGMENT

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Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney.

Laurel A. Kendall, for appellant.

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ZMUDA, P.J.

I. Introduction

{¶ 1} Appellant, Brandon Bowles, appeals the April 15, 2021 judgment of the Lucas County Court of Common Pleas sentencing him to an 11-month prison term following his conviction on one count of vandalism. For the following reasons, we affirm the trial court‘s judgment.

A. Fact and Procedural Background

{¶ 2} On February 18, 2021, appellant was indicted on one count of vandalism in violation of R.C. 2909.05(B)(2) and (E), a fifth-degree felony; and one count of illegal conveyance of drugs of abuse onto the grounds of a specified governmental facility in violation of R.C. 2921.36(A)(2) and (G)(2), a third-degree felony. Appellant appeared for arraignment on February 26, 2021. At that time, he was determined to be indigent, appointed counsel, and entered a not guilty plea to both counts.

{¶ 3} On March 20, 2021, appellant appeared at a change of plea hearing where he agreed to enter a no contest plea to the vandalism count. As part of a plea agreement, the state agreed to request that the trial court dismiss the drug conveyance count in exchange for the no contest plea. The trial court accepted appellant‘s plea and found him guilty of vandalism. The trial court ordered appellant to participate in a presentencing investigation and scheduled the matter for sentencing on April 15, 2021.

{¶ 4} At sentencing, the trial court ordered appellant to serve an 11-month prison term for his vandalism conviction and dismissed the drug conveyance count. The trial court‘s judgment was memorialized in an April 15, 2021 judgment entry.

B. Assignment of Error

{¶ 5} Appellant timely appeals and asserts the following error for our review:

  1. The trial court abused its discretion when it sentenced appellant to an eleven month prison sentence which is being served prior to, and consecutive with, a previously imposed sentence of community control in a separate matter, when the underlying offense is a non-violent felony of the fifth degree, and the sentence arguably does not promote the effective rehabilitation of the offender pursuant to R.C. 2929.11.1

II. Law and Analysis

{¶ 6} In his sole assignment of error, appellant requests that this court review the trial court‘s imposition of a prison term alleging that the trial court improperly weighed the purposes of felony sentencing as defined in R.C. 2929.11, and the seriousness and recidivism factors as defined in R.C. 2929.12, when it determined his sentence. Appellant argues that had the trial court correctly weighed these factors it would not have imposed a prison term but would have imposed a term of community control. Appellant argues that we should vacate the trial court‘s sentence based on our own review of the record and remand this matter for resentencing. Because we are not permitted to conduct the review appellant requests, we find his assignment of error not well-taken.

{¶ 7} Generally, we review felony sentences pursuant to R.C. 2953.08(G)(2), which permits appellate courts to vacate or modify a felony sentence when certain required statutory findings are not supported by the record or when the sentence is “otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b). In State v. Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 42, the Ohio Supreme Court clarified that appellate courts could not find a sentence was “contrary to law” under R.C. 2953.08(G)(2) based on an appellant‘s challenge to the trial court‘s consideration of the purposes of felony sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12 prior to imposing sentence. Specifically, Jones held that R.C. 2953.08(G)(2) does not permit 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.” Applying Jones, we previously held that “assigning error to the trial court‘s imposition of sentence as contrary to law based solely on its consideration of R.C. 2929.11 and 2929.12 is no longer grounds for this court to find reversible error.” State v. Orzechowki, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13 (emphasis added).

{¶ 8} Recently, the Ohio Supreme Court summarily denied another challenge to the trial court‘s consideration of the R.C. 2929.11 and R.C 2929.12 factors based on the precedent it established in Jones. See State v. Toles, Slip Opinion No. 2021-Ohio-3531 (holding, in its entirety, “[t]he judgment of the court of appeals is affirmed on the authority of [Jones].“). In a concurring opinion, Justice Brunner articulated the basis for summary dismissal of certain appeals by identifying when the limit of appellate review under Jones applies and, importantly, when it does not. We find Justice Brunner‘s opinion instructive for determining when Jones is properly applied by this court.

{¶ 9} In her concurring opinion, Justice Brunner summarized the holding in Jones stating “in Jones we simply observed that R.C. 2953.08 * * * precludes second-guessing a sentence imposed by a trial court based on its weighing of the considerations of R.C. 2929.11 and 2929.12.” Id. at ¶ 10 (J. Brunner, concurring). Justice Brunner noted, however, that there are other statutory and constitutional provisions under which an offender may appeal their felony sentences outside of R.C. 2953.08(G)(2). Id. at ¶ 10, citing State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 15- 22 (R.C. 2953.08 is not the only basis for appealing a sentence and it does not preclude an appeal of a sentence on constitutional grounds); Jones at ¶ 48-49 (Fischer, J., concurring) (an appellate court may review the trial court‘s findings under R.C. 2929.11 and 2929.12 for “certain limited purposes,” including whether the sentence was “based on an offender‘s ‘race, ethnic background, gender, or religion‘“); R.C. 2953.08(F) (requiring an appellate court to review essentially the entire trial-court record in evaluating the legality of a sentence). In these instances, felony sentences are properly reviewed outside of the limitations of Jones since that review is not established under the limits of R.C. 2953.08(G)(2). In resolving an appeal of felony sentences, we must, therefore, limit our application of Jones to appeals in which the appellant‘s sole argument is that the record does not support the trial court‘s imposition of a prison term after considering R.C. 2929.11 and 2929.12. That argument remains “squarely prohibited” and, in light of Toles, appeals based on that argument alone are subject to summary resolution as a matter of law. Toles at ¶ 11.

{¶ 10} Applied here, the limit of our appellate review established in Jones precludes our review of appellant‘s assignment of error. Appellant‘s sole argument is that his sentence was contrary to law as described in R.C. 2953.08(G)(2) because the trial court improperly weighed the sentencing factors established in R.C. 2929.11 and 2929.12 prior to imposing his sentence. Notably, he does not assign error to his sentence under any other statutory or constitutional provision which would permit our review of his sentence. Therefore, in light of Jones and Toles, it is clear that we are “squarely prohibited” from reviewing appellant‘s sentence as requested and we find his assignment of error not well-taken.

III. Conclusion

{¶ 11} We find appellant‘s assignment of error not well-taken and affirm the April 15, 2021 judgment of the Lucas County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J.

JUDGE

Gene A. Zmuda, P.J.

JUDGE

Myron C. Duhart, J.

CONCUR.

JUDGE

This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

Notes

1
We note that appellant identifies the incorrect standard of review for felony sentences. Felony sentences are reviewed under R.C. 2953.08(G)(2) rather than under an abuse of discretion standard. See State v. Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. However, this does not impact our resolution of the appeal since we do not address the merits of appellant‘s assigned error as a matter of law.