STATE OF OHIO v. JOHN EVANS
No. 109619
Cоurt of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
April 22, 2021
[Cite as State v. Evans, 2021-Ohio-1411.]
FRANK D. CELEBREZZE, JR., P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-19-645627-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 22, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Theodore Parran, III, Assistant Prosecuting Attorney, for appellee.
Christopher R. Fortunato, for appellant.
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} Defendant-appellant John Evans brings this appeal challenging his 18-month prison sentence for domestic violence. Appellant argues that the trial court failed to make a sufficient finding that a maximum sentence was necessary and that the trial court improperly weighed the relevant sentencing factors under
I. Factual and Procedural History
{¶ 2} The instant appeal pertains to appellant‘s involvement in an altercation with Joshalynn Claxton on November 1, 2019. Claxton is the mother of appellant‘s child. Appellant was intoxicated at the time of the altercation. Appellаnt began arguing with Claxton while she was speaking on the telephone. The argument escalated, and appellant “shoved [Claxton] into a wall and kicked her out of the room, which the child was in, and [appellant] was with that child for a couple of minutes[.]” (Tr. 21.)
{¶ 3} Appellant was charged for his involvement in the altercation. On November 12, 2019, in Cuyahoga C.P. No. CR-19-645627-A, a grand jury returned a three-count indictment charging appellant with (1) domestic violence, a fourth-degree felony in violation of
{¶ 4} The parties reached a plea agreement. On December 23, 2019, appellant pled guilty to the domestic violence offense charged in Count 1, and an amended Count 2, attempted child endangering, a first-degree misdemeanor in violation of
{¶ 5} Appellant waived a presеntence investigation report (“PSI“), and the trial court proceeded immediately to sentencing on December 23, 2019. The trial court imposed a prison term of 18 months (or 1.5 years): 18 months on Count 1, and 180 days (or 6 months) in jail on Count 2. The trial court ordered the counts to run concurrently with one another, and concurrently with appellant‘s two-year prison sentence in Cuyahoga C.P. CR-18-627470-A1 that he was serving at the time of the December 23, 2019 sentencing hearing.
{¶ 6} On March 19, 2020, appellant filed the instant appeal, a motion for leave to file a delayed appeal, and a motion for appointment of appellate counsel. This court granted appellant‘s motion for leave on April 3, 2020, and appointed counsel to represent appellant.
{¶ 8} The trial court issued a nunc pro tunc sentencing entry on September 11, 2020, pursuant to this court‘s September 4, 2020 sua sponte order, clarifying appellant‘s sentence on Count 1 was 18 months in prison, and appellant‘s sentence on Count 2 was 180 days “local incarceration (to be served at the institution).”
{¶ 9} In this appeal, appellant challenges his 18-month sentence for domestic violence. He assigns one error for review:
I. The trial court abused its discretion when it sentenced appellant to a maximum term for a plea of guilty to felony domestic violence.
II. Law and Analysis
{¶ 10} In his sole assignment of error, appellant argues that the trial court abused its discretion in imposing a prison term of 18 months for his domestic violеnce conviction, a felony of the fourth degree. He does not challenge the trial court‘s sentence of 180 days in jail for his endangering children conviction, or two-year prison sentence in CR-18-627470-A.
{¶ 11} As an initial matter, we note that this court does not review felony sentencing for an abuse of discretion.
{¶ 12} Appellate review of felony sentences is governed by
A sentence is not clearly and convincingly contrary to law “where the trial court considers the purposes and principles of sentencing under
R.C. 2929.11 as well as the seriousness and recidivism factors listed inR.C. 2929.12 , properly applies post-release control, and sentences a defendant within the permissible statutory range.”
State v. Thompson, 8th Dist. Cuyahoga No. 105785, 2018-Ohio-1393, ¶ 7, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.
{¶ 13} The record must indicate that the trial court considered all relevant factors required by
{¶ 14} After reviewing the record, we find that appellant‘s 18-month sentence for his domestic violence conviction is not clearly and convincingly contrary to law.
{¶ 15}
{¶ 16} Appellant appears to argue that the trial court‘s sentencing journal entry “does not offer sufficient findings for a maximum sentence.” Appellant further contends that “the [c]ourt made no findings that a maximum term was necessary for an appropriate sentence[.]” Appellant‘s argument is misplaced.
{¶ 17} As noted above, trial courts are required to consider the sеntencing factors set forth in
Trial courts, however, are not required to make factual findings on the record under
R.C. 2929.11 or2929.12 before imposing the maximum sentence. [State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020,] ¶ 27. In fact, “[c]onsideration of the factors is presumed unless the defendant affirmatively shows otherwise.” State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12, citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234. “[T]his court has consistently recognized that a trial court‘s statement in the journal entry that it considered the requirеd statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes.” Kronenberg at ¶ 27, citing State v. Wright, 8th Dist. Cuyahoga No. 100283, 2014-Ohio-3321.
(Emphasis added.) State v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 21; see also State v. Martin, 2d Dist. Clark No. 2014-CA-69, 2015-Ohio-697, ¶ 8, citing State v. Walker, 2d Dist. Montgomery No. 25741, 2014-Ohio-1287, ¶ 17-19 (“a maximum sentence is not contrary to law when it is within the statutory range and the trial court considered the statutory principles and purposes of sentencing as well as the statutory seriousness and recidivism factors“).
{¶ 19} As an initial matter, the trial court was not required to make аn explicit, formal factual finding, pursuant to
{¶ 20} Furthermore, in addressing the trial court at sentencing, defense counsel stated, “[w]e are not asking for community control sanctions. [Appellant] was found recently not to be amenable to [community control] based on a violation of prior community cоntrol. We would ask for a prison sentence, something short of the maximum period[.]” (Tr. 19.) Defense counsel waived a PSI and requested that the trial court proceed immediately to sentencing. (Tr. 16.) Had a PSI been prepared, it would have been another factor for the trial court to consider in imposing appellant‘s sentence. The PSI would have contained, among other things,
{¶ 21} Appellant does not present an assignment of error in this appeal challenging trial counsel‘s performance. By waiving a PSI, conceding that a community control sanction was not an appropriate sentence, and specifically requesting a prison term that was short of the 18-month maximum, defense counsel arguably invited any error regarding the trial cоurt‘s imposition of a prison sentence rather than a community control sanction.
Under the invited error doctrine, “a party is not entitled to take advantage of an error that he himself invited or induced.” State v. Doss, 8th Dist. [Cuyahoga] No. 84433, 2005-Ohio-775, ¶ 5, quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27; State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 471, 692 N.E.2d 198 (1998). The doctrine precludes a defendant from making “an affirmative and apparent stratеgic decision at trial” and then complaining on appeal that the result of that decision constitutes reversible error. Doss at ¶ 7, quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003). The doctrine applies when defense counsel is “actively responsible” for the trial court‘s error. State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 [(2000)].
State v. Benitez, 8th Dist. Cuyahoga No. 98930, 2013-Ohio-2334, ¶ 21.
{¶ 22} After reviewing the record, we find that the trial court fulfilled its obligation to consider the purposes and principles of sentencing under
{¶ 23} At the beginning of the sentencing hearing, the trial court stated, “I will consider the purposes and principles of felony sentencing under Ohio Revised Code Sectiоn
{¶ 24} Defense counsel asserted that appellant accepted full responsibility for his actions. Defense counsel acknowledged that appellant has “a bit of a prior record. It is lаrgely drug and weapons-related[.]” (Tr. 19.) Defense counsel conceded that a community control sanction would not be appropriate, and explained that appellant “was found recently not to be amenable to [community control] based on a violation of prior cоmmunity control.” (Tr. 19.) Nevertheless, defense counsel requested a prison term that was “short of the maximum[.]”
{¶ 25} The state asserted that during the altercation for which appellant was charged, appellant shoved the victim into a wall and kicked her out of a room that the child was in. The state informed thе trial court that the victim “wants [appellant] to receive AA counseling and other forms of counseling to get him help.” (Tr. 21.)
{¶ 26} In order to determine an appropriate sentence, the trial court provided appellant with an opportunity to address the court. Appellant apologized for letting things “get out of hand” during the altercation. He acknowledged that he
{¶ 27} Following the statements made by defense counsel, appellant, and the state, the trial court confirmed again that it “considered the purposes and principles of felony sentencing under [R.C.]
{¶ 28} Finally, appellant appears to dispute the trial court‘s balancing of the relevant sentencing factors. This court is not permitted to substitute its judgment for the judgment of the triаl court. State v. Franklin, 8th Dist. Cuyahoga No. 107482, 2019-Ohio-3760, ¶ 47. Nor is this court authorized to reweigh the applicable factors under
{¶ 29} As this court has previously explained,
“‘The weight to be given to any one sentencing factor is purely discretionary and rests with the trial court.‘” State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert,
8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v. Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A lawful sentence “‘cannot be deemed contrary to law because a defendant disagrees with the trial cоurt‘s discretion to individually weigh the sentencing factors. As long as the trial court considered all sentencing factors, the sentence is not contrary to law and the appellate inquiry ends.‘” Price at id., quoting Ongert at ¶ 12.
State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15.
{¶ 30} Based on the foregoing analysis, appellant‘s sentence is not contrary to law merely because hе disagrees with the weight the trial court afforded to the applicable sentencing factors. The record reflects that the trial court considered the relevant sentencing factors under
{¶ 31} For all of the foregoing reasons, appellant‘s sole assignment of error is overruled. Appellant‘s maximum 18-month prison sentence for his domestic violence conviction is not contrary to law.
{¶ 32} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a speciаl mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and EMANUELLA D. GROVES, J., CONCUR