State v. DavisState v. Davis
JUDGMENT: Reversed and remanded.
APPEARANCES:
For Plaintiff-Appellee Attorney Daniel P. Fry, Belmont County Prosecutor, Attorney J. Flanagan, Assistant Prosecutor, 147-A West Main Street, St. Clairsville, Ohio 43950
For Defendant-Appellant Attorney Brent Clyburn, 604 Sixth Street, Moundsville, WV 26041
JUDGES: Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Carol Ann Robb
{¶1} Defendant-Appellant Alexander Davis, Jr. appeals the trial court‘s judgment, arguing the court erred in sentencing him to a maximum term. Although we conclude the eight-year term chosen is supported by the record, the trial court erred in its post-release control notification. Accordingly, the trial court‘s judgment is reversed in part, remand for limited resentencing hearing with regard to post-release control pursuant to
{¶2} Davis pled guilty to one count of drug trafficking, a second-degree felony. A presentence investigation was ordered and prepared. Following a sentencing hearing, the trial court imposed a maximum eight-year prison term.
{¶3} In his sole assignment of error, Davis asserts:
The trial court erred in sentencing the defendant-appellant, Alexander Davis, Jr., to a maximum prison term of eight (8) years following his conviction for one (1) count of “trafficking in drugs,” a felony of the second degree.
{¶4} We review a felony sentence to determine whether the trial court‘s findings—or where findings are not required, the sentence itself—are clearly and convincingly unsupported by the record, or whether the sentence is otherwise contrary to law.
{¶5} This case presents us with one of our first opportunities to interpret or apply Marcum in great detail. However, as the Eighth District recently held, Marcum does not permit appellate courts to independently weigh the sentencing factors in
* * * the Marcum analysis applies to situations in which not one sentencing factor supports a stated prison term or the trial court erroneously relied on factors that did not exist. For instance, if the trial court had specifically indicated that the defendant‘s criminal history
supported the stated prison term, but the defendant was a first-time offender and no other factor in favor of the sentence existed, then the Marcum standard would apply and the appellate court may take the appropriate action. See, e.g., State v. Whitt, 2d Dist. Clark No. 2014-CA-125, 2016-Ohio-843, ¶ 8 (trial court was not required to, but provided reasons for imposing the sentence, and those reasons were supported by the record).
(Emphasis added.) Ongert at ¶ 13.
{¶6} The trial court here was not required to make any findings under the statutes referenced by
{¶7} Davis cites State v. Collins, 4th Dist. No. 03CA29, 2004-Ohio-3606, for his assertion that when a trial court specifically relies on inaccurate information at sentencing, which, in turn, affects its findings and considerations, such may constitute error. However, Collins does not support reversal of Davis’ sentence because in that case defense counsel brought the inaccuracies to the attention of the trial court at sentencing, and, moreover, the appellate court found Collins had not demonstrated that the trial court specifically relied on the alleged inaccuracies, and thus were at most, harmless error. Id. at ¶¶ 23-24.
{¶8} Here the trial court‘s slight mischaracterization of Davis’ criminal record is also harmless. While three crimes were misstated, 21 others were accurately portrayed. Furthermore, in its sentencing entry, the trial court accurately related 19 crimes for which Davis had been convicted, including the two that had been
{¶9} Having concluded the eight-year prison term is supported by the record, we must determine whether the sentence is otherwise contrary to law. “A trial court‘s sentence would be contrary to law if, for example, it were outside the statutory range, in contravention to a statute, or decided pursuant to an unconstitutional statute.” State v. Wolters, 7th Dist. No. 14 NO 417, 2014-Ohio-5515, ¶ 9. Davis was afforded his allocution rights pursuant to
{¶10} But the trial court erred in its imposition of postrelease control. During the hearing and in the sentencing entry, the trial court stated that Davis is subject to a period of post-release control of “up to three years.” (Emphasis added.) Davis was convicted of a non-sex offense second-degree felony; the proper postrelease control period for which is a definite three-year term.
{¶11} In Rodriguez-Baron and Frazier we reversed and remanded for a limited resentencing pursuant to
{¶12}
{¶13} Thus, in sum, Davis’ assignment of error is meritorious, in part. The trial court did not err by sentencing him to the maximum eight-year prison term. However, the trial court erred by failing to impose the proper term of post-release control and thus, the judgment of the trial court is reversed and the matter remanded for a limited resentencing regarding post-release control.
Donofrio, P. J., concurs.
Robb, J., concurs.