State v. HarveyState v. Harvey
Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellant)
ROBERT J. PATTON, J.
O P I N I O N
{¶1} Appellant, LC Deshawn Harvey, appeals the judgment of the Trumbull County Court of Common Pleas, sentencing him to two concurrent twelve-month terms of imprisonment following his plea to possession of cocaine and attempted tampering of evidence. For the following reasons, we affirm.
{¶2} On June 28, 2022, the Trumbull County Grand Jury indicted appellant charging him with possession of cocaine, a fourth degree felony with a specification of forfeiture, pursuant to
{¶3} On March 27, 2023, appellant appeared with counsel, waived his rights, and entered a guilty plea to an amended indictment of possession of cocaine, a fourth-degree felony with specification of forfeiture and attempted tampering with evidence, a fourth-degree felony. A presentence investigation (“PSI“) was ordered. The trial court also ordered appellant to forfeit $606.00 of U.S. currency.
{¶4} On June 5, 2023, the trial court sentenced appellant to twelve-month prison terms on each count and ordered the terms to be served concurrently.
{¶5} During the sentencing hearing, the trial court noted that appellant‘s criminal history was “horrible,” that he had an extensive criminal record in multiple states, had served two prior prison terms, and had 14 active warrants out of at least seven different jurisdictions. The trial court also noted that appellant had another drug case pending before another judge of the court and since the inception of the case, had seven new charges. The trial court concluded that appellant was “not amenable to any available community control and a prison sentence is consistent with the purposes and principles of sentencing.” These findings are also reiterated in the sentencing entry.
{¶6} Appellant appeals and raises the following assignment of error: “[t]he trial court erred by sentencing appellant to two terms of incarceration as the record does not support such a sentence.” Specifically, appellant asserts in his merit brief that “the record
{¶7} We review felony sentencing pursuant to
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶8} The Supreme Court of Ohio has held that while ”
There is also no reason to believe that a trial court‘s consideration under
R.C. 2929.11 and2929.12 is wholly unreviewable. First, although, as the majority opinion explains,R.C. 2929.11 and2929.12 do not require a trial court to make any specific findings on the record, those statutes are not optional. Both statutes use the term “shall” multiple times in relation to other matters. For example,R.C. 2929.11(A) and2929.12(A) through (F) set forth matters that a sentencing court “shall consider,” andR.C. 2929.11(A) provides that the trial court “shall be guided by” the three overriding purposes of felony sentencing.R.C. 2929.11(B) further states that the sentence imposed by the trial court “shall” meet certain specific criteria. * * * Second,R.C. 2953.08(G)(2) expressly requires an appellate court to “review the record, including the findings underlying the sentence.” The breadth of this statutory provision necessarily means that if a trial court does make findings underR.C. 2929.11 and2929.12 , the appellate court may review those findings for certain limited purposes. Third,R.C. 2953.08(G)(2)(b) provides that an appellate court can modify or vacate a sentence on the ground that it is “otherwise contrary to law.” This court‘s holding today specifies what an appellate court may not do under this provision: it may not conduct an independent review of whether the record supports the sentence and substitute its own judgment regarding the appropriate sentence.
{¶10} The trial court, when imposing its sentence, considered “the record, oral statements, the pre-sentence investigation report, and any victim impact statements, as well as the principles and purposes of sentencing under
{¶11} Like in Reed, there is nothing to support appellant‘s contention that his sentence is contrary to law. Appellant‘s argument essentially asks this Court to review whether the record supported the trial court‘s decision to impose a prison term rather than a community control sanction, which this Court is not permitted to do. Jones, 163 Ohio St.3d 242, at ¶ 39. Appellant‘s sentence is consistent with the law, and the trial court complied with the statutory requirements when imposing its sentence. Thus, appellant‘s sole assignment of error is without merit.
{¶12} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.