State v. LigonState v. Ligon
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third Street, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
BRESSLER, J.
{¶1} Defendant-appellant, Justin D. Ligon, appeals his convictions in the Clermont County Court of Common Pleas for felonious assault and child endangerment. For the reasons outlined below, we affirm.
{¶2} On December 25, 2007, appellant picked up his 21-month-old son, S.M., from
{¶3} Appellant was indicted on one count each of felonious assault in violation of
{¶4} Following a four-day jury trial, appellant was convicted on all three counts. The trial court merged counts two and three because the offenses arose from “the same conduct against the sаme victim.” The state elected to merge the charge of child endangerment set forth in count three into the charge in count two for purposes of conviction and sentencing. Thereafter, the trial court sentenced appellant to concurrent five-year prison terms fоr counts one and two. Appellant timely appealed, raising three assignments of error.
{¶5} Assignment of Error No. 1:
{¶7} Prior to trial, the parties reached a plea agreement, in which appellant agreed to plead guilty to count three (child endangering in violation of
{¶8} We begin by noting that the decision to accept or reject a pleа bargain rests within the sound discretion of the trial court. State v. Fowler, Clermont App. No. CA2009-06-031, 2010-Ohio-49, ¶16; State v. Underwood, 124 Ohio St.3d 365, 371, 2010-Ohio-1;
{¶9} That said, this court clearly recognizes the value in the plea negotiation рrocess where the prosecution enters into meaningful and good faith plea negotiations with defense
{¶10} In the case at bar, the trial court gave ample reasoning to support its decision to reject the plea agreement. The court began by stating that “[t]he law is the Court has discretion to refuse to accept a plea agreement. The Court can‘t do that willy-nilly * * * if it is questioned why the Court is refusing, the Court needs to state what the facts are that are the basis of the refusal[.]” The court also recognized the seriousness of the allegations involved and stated that there were factual issues surrounding the alleged abuse that required resolution by a jury. The court stated that it routinely rejected plea agrеements that permitted the accused to plead to an offense that was not “plausible under the facts.” The court further bolstered its reasoning by stating that it did not “think that justice [was] served by allowing the plea * * * at this point.”
{¶11} Upon review of the record, we see no reason to disturb the trial cоurt‘s decision to reject the negotiated plea between the parties. The trial court did not abuse its discretion in determining that the plea agreement was unacceptable. We believe that the trial judge acted within the bounds of reasonable discretion and in the public interеst in rejecting the
{¶12} Assignment of Error No. 2:
{¶13} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO A FIVE (5) YEAR TERM OF IMPRISONMENT.”
{¶14} In his second assignment of error, appellant argues that his five-year concurrent prison sentence is excessive because his criminal history is not serious enough to warrant the court‘s finding that “[a]рpellant was likely to commit future crime.”
{¶15} Appellate review of felony sentencing is controlled by the two-step procedure outlined by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Under Kalish, this court must first examine the trial court‘s sentence to determine if “the sentence is clearly and convincingly contrary to law,” and then, if the first prong is satisfied, this court must review the sentence for an abuse of discretion. Id. at ¶4; Bates, 2010-Ohio-1723.
{¶16} Appellant concedes that his sentence is not clearly and convincingly contrary to law, since it was within the statutory limits. However, appellant argues that his prior “run-ins” with law enforcement were nоt serious enough to warrant a “high recidivism” finding.
{¶17} As previously stated, an abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Bates, 2010-Ohio-1723 at ¶15; State v. Hunt, Butler App. No. CA2009-07-184, 2010-Ohio-1099, ¶6.
{¶18} After a careful review of the record, we find no abuse of discretion by the trial court in its sеntencing decision. We find that the trial court gave “careful and substantial
{¶19} In addition, the record demonstrates that the trial court properly applied mandatory postrelease control and sentenced appellant to a prison term falling squarely within the statutory range for the offenses in question. See
{¶20} Assignment of Error No. 3:
{¶21} “THE JURY VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶22} Appellant argues that his convictions were against the manifest weight of the evidence. Specifically, appellant argues that the state failed to prove, beyond a reasonable doubt, that appellant (1) “knowingly caused serious physical harm to [S.M.],” and (2) “[abused
{¶23} A manifest weight challenge “concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other; weight is not a question of mathematics, but depends on its effect in inducing belief.” State v. Craycraft, Clermont App. Nos. CA2009-02-013, CA2009-02-014, 2010-Ohio-596, ¶71, quoting State v. Ghee, Madison App. No. CA2008-08-017, 2009-Ohio-2630, ¶9. To determine whether a conviction is against the manifest weight of the evidence, an appellate court, reviewing the entire record, weighs the evidence and all reasonable infеrences, considers the credibility of witnesses, and determines whether the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. When reviewing the evidence, an appellate court must bе mindful that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. Id.
{¶24} As previously stated, appellant was convicted of one count of felonious assault in violation of
{¶25} At trial, the state presented expert testimony from Dr. Kathi Makoroff, a pediаtrician at Cincinnati Children‘s Hospital, who evaluates children for physical and sexual
{¶26} The state also presented photographs depicting S.M.‘s injuries. The photographs revealed bruising behind S.M.‘s ears that extended onto the ears themselves and onto the back of his neck. In addition, S.M.‘s eyes were discolored and severely swollen, and he had “diffused swelling over his entire scalp.” X-rays further revealed that S.M. had a fracture in his right lower jaw.
{¶27} Dr. Makoroff concluded, to a reasonable degree of medical certainty, that S.M.‘s injuries resulted from child abuse. She opined that appellant‘s account of the evening, where S.M. allegedly fell out of the bathtub, could not have caused all of S.M.‘s injuries, particularly those to his ears, jaw and scalp. Specifically, Dr. Makoroff stated that S.M. had “at least 3 injuries to his head. He had the scalp swelling, which in my experience comes from a pulling of the hair or the pulling of the ears [so that] the scalp is pulled away from the skull bone underneath creating that diffuse swelling * * * a household fall would not cause the diffuse swelling that [S.M.] had.” She continued, stating that S.M. “certainly couldn‘t fall once and bruise both of the backs of [his] ears and [his] jaw. He would have had to impact at least three times for that. And then he had to have some mechanism to cause the scalp to be pulled away from the skull.” Without a “significant history of accidental trauma,” which neither рarent provided, Dr. Makoroff concluded that the majority of S.M.‘s injuries resulted from child abuse.
{¶28} After a careful review of the record, we conclude that appellant‘s convictions are not against the manifest weight of the evidence. As the above demonstrates, there is a largе
{¶29} Appellant‘s third and final assignment of error is overruled.
{¶30} Judgment affirmed.
YOUNG, P.J., and RINGLAND, J., concur.