STATE OF OHIO, Plaintiff-Appellee v. KRISTAPHER B. DAVIS, Defendant-Appellant
Appellate Case No. 2016-CA-22
Trial Court Case No. 2016-CR-154
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
Rendered on the 21st day of July, 2017.
[Cite as State v. Davis, 2017-Ohio-6904.]
TUCKER, J.
(Criminal Appeal from Common Pleas Court)
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor‘s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
BRIAN BRENNAMAN, Atty. Reg. No. 0088988, 1616 Turner Road, Xenia, Ohio 45385 Attorney for Defendant-Appellant
{¶ 2} We conclude that the sentence is not contrary to law and is supported by the record. We further conclude that Davis’ guilty plea to the burglary count eliminates any argument concerning the sufficiency of the evidence. Finally, we conclude that Davis failed to demonstrate that counsel was ineffective. Accordingly, the judgment of the trial court is affirmed.
I. Procedural Background
{¶ 3} This case arises from a burglary committed on May 4, 2016. On that day, Mechanicsburg Police Department Officer Nickolous Black responded to a dispatch of a suspicious person.1 Black patrolled the area looking for the person described by one witness. He informed dispatch that he was unable to locate the suspect, and began to leave the area. He was then informed that the suspect‘s car was in the driveway of Ken Davis.2 Black pulled off the road to write down the information, at which time Ken Davis
{¶ 4} Black attempted to initiate a traffic stop, however, Davis did not comply. A high speed chase ensued during which Davis reached speeds in excess of 90 miles per hour. During the chase, Davis ran a stop sign, swerved back and forth, braked abruptly to avoid running into the back of a vehicle, and made a left turn in front of oncoming traffic. Davis turned into a business lot and continued to drive to the back of the business until the lot ended at a crop field. Davis exited the vehicle and began to run away on foot. Other officers arrived on the scene, including members of the Champaign County Sheriff‘s Department. Black eventually found Davis and gave him a command to get down on the ground. Davis began to argue with Black and was walking around in circles. Black repeated his command several times. Davis did not comply until another officer arrived. Investigation revealed that Davis had stolen a gun, ammunition, and money from Ken Davis’ garage.
{¶ 5} On May 5, 2016, Davis was indicted on two counts of burglary, one count of safecracking, one count of grand theft (firearm), one count of petty theft, one count of failure to comply with an order or signal of a police officer, one count of carrying a concealed weapon, and one count of improper handling of a firearm in a motor vehicle. The burglary counts, grand theft, and failure to comply counts included firearm specifications. Following plea negotiations, Davis entered a plea of guilty to one count of burglary in violation of
II. Maximum Sentences Were Not Improper.
{¶ 6} Davis’ first assignment of error states as follows:
THE TRIAL COURT ERRED IN SENTENCING KRISTAPHER BRANDON DAVIS TO MAXIMUM SENTENCES AS THE RECORD CLEARLY AND CONVINCINGLY DOES NOT SUPPORT THE TRIAL COURT‘S FINDINGS.
{¶ 7} Davis contends that the trial court erred by sentencing him to a prison term greater than the minimum sentence provided by statute.4 He argues that the record does not support a finding that he committed the worst form of the offenses.
{¶ 8} In reviewing a felony sentence, we must apply the standard of review set forth in
{¶ 9} A trial court is “not required to make any particular ‘findings’ to justify maximum prison sentences.” State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14, citing State v. Whitt, 2d Dist. Clark No. 2014-CA-125, 2016-Ohio-843, ¶ 8. In Marcum, the Ohio Supreme Court explained
[S]ome sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
{¶ 10}
{¶ 11}
{¶ 12} In reviewing the seriousness factors of
{¶ 13} The trial court further found that the victim suffered serious psychological harm. Though this determination is debatable, this concern, given the entire record, is not sufficient to alter our conclusion.
{¶ 14} Finally, the trial court noted that Davis’ lengthy drug addiction could be considered a mitigating factor regarding the seriousness of the crime.
{¶ 15} With regard to the likelihood of committing future crimes, the sentencing hearing transcript reflects that the trial court found the existence of several factors making recidivism more likely under
{¶ 16} The trial court found that Davis has demonstrated a pattern of drug and alcohol abuse that is related to the instant offense, and that he has refused treatment. The record demonstrates that Davis did not pursue mental health or substance abuse treatment when it was ordered on multiple occasions by the municipal court in regard to prior offenses. Further, Davis committed the instant offense while under the influence of drugs. The pre-sentence investigation indicates that Davis uses drugs, including cocaine, crack cocaine, marijuana, methamphetamine, heroin and opiates on a regular basis. The record also shows that Davis used cocaine while incarcerated, and awaiting trial, on these offenses.
{¶ 17} Finally, the trial court found no relevant factors under
{¶ 18} The record shows that the trial court properly reviewed the PSI, the victim‘s oral statement, Davis‘s statement, as well as the statements of counsel. The record further shows that the trial court considered the principles and purposes of sentencing under
{¶ 19} The first assignment of error is overruled.
{¶ 20} The second assignment of error asserted by Davis states:
THE TRIAL COURT ERRED BY ENTERING A CONVICTION FOR BURGLARY WITHOUT THE ELEMENTS FOR BURGLARY BEING ESTABLISHED.
{¶ 21} Davis contends that the record does not support a conviction for burglary because there is no evidence that the garage was an occupied structure. Thus, he argues that the conviction for burglary must be reversed because the State failed to prove an essential element of the crime.
{¶ 22} Davis was convicted of burglary in violation of
{¶ 23} We begin by noting that Davis entered a plea of guilty to this charge. Such a plea is a complete admission of guilt. Crim.R. 11(B)(1). We further note that the trial court conducted a complete and proper Crim.R. 11(C) colloquy when accepting Davis’ plea. “A guilty plea waives a defendant‘s right to challenge sufficiency or manifest weight of the evidence.” State v. Jamison, 2d Dist. Montgomery No. 21165, 2006-Ohio-4933, ¶ 38. By entering a guilty plea, a defendant cedes his right to have the State prove his guilt beyond a reasonable doubt. Id. “Therefore, a guilty plea waives any dispute about the adequacy of the evidence.” Id.
{¶ 24} Davis argues that statements by the prosecutor at the sentencing hearing
{¶ 25} Even if this argument were not waived, we conclude it lacks merit. First, such statements made by the prosecutor at a sentencing hearing do no constitute evidence. Second, the sentencing hearing transcript shows there are also statements made by the prosecutor indicating the garage structure contained an apartment, and that the victim was living in that apartment. It is unclear from the prosecutor‘s statement whether he was referring to the front door as the door to the garage apartment or as the door of the home. In any event, Davis does not, and did not, dispute the claim that the garage included an apartment. Thus, even if the victim was not living therein, the garage could reasonably be found to constitute an occupied structure under
{¶ 26} The second assignment of error is overruled.
IV. Counsel Not Ineffective
{¶ 27} Davis asserts the following for his third assignment of error:
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 28} Davis contends that because there is insufficient evidence to support a burglary charge his trial court counsel was ineffective for permitting him to enter a guilty plea to that charge.
{¶ 29} “Ineffective assistance of counsel allegations are reviewed de novo to determine if the counsel‘s deficient performance prejudiced the outcome. To reverse a
{¶ 30} Our resolution of the second assignment of error renders this argument moot. Further, the record fails to demonstrate that counsel‘s deficient performance, if any, caused Davis to enter a guilty plea to the burglary charge.
{¶ 31} The third assignment of error is overruled.
V. Conclusion
{¶ 32} All of Davis’ assignments of error being overruled, the judgment of the trial court is affirmed.
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
Jane A. Napier
Brian Brennaman
Hon. Nick A. Selvaggio