State v. MageeState v. Magee
Timothy F. Braun, Sandusky County Prosecuting Attorney, and Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
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MAYLE, P.J.
{¶ 1} Appellant, Christopher Magee, appeals the July 31, 2018 judgment of the Sandusky County Court of Common Pleas sentencing him to 36 months in prison following a community control violation. For the following reasons, we reverse.
I. Background and Facts
{¶ 2} On December 14, 2016, Magee was indicted on one count of failure to comply with an order or signal of a police officer in violation of
{¶ 3} On April 10, 2017, Magee pleaded guilty to the resisting arrest charge and to amended charges of attempted failure to comply with an order or signal of a police officer in violation of
{¶ 4} On June 5, 2017, at the sentencing hearing, after noting Magee‘s lengthy criminal history and (in the context of “looking for responsible behavior“) stating that Magee had fathered several children out of wedlock, the trial court sentenced him to a 5-year term of community control on certain conditions, including the condition that Magee not use or possess any controlled substances. The court warned Magee that it would impose prison terms of 18 months on each of the felony counts and order them served consecutively if Magee violated the terms of his community control. The trial court did not make any findings under or reference
{¶ 5} On July 11, 2018, the Sandusky County adult probation department charged Magee with violating the terms of his community control by testing positive for cocaine on March 12, 2018, and admitting to using marijuana on February 7 and March 1, 2018. The court held a hearing on the violation on July 20, 2018. At the hearing, Magee admitted to the community control violations. The trial court revoked his community control and sentenced him to 18 months in prison on the attempted failure to comply conviction and 18 months in prison on the attempted tampering with evidence conviction. The court ordered the sentences to be served consecutively for an aggregate prison term of 36 months. Again, the trial court did not make any findings under or reference
{¶ 6} Additionally, although Magee‘s attorney (apparently referring to the recently-enacted provisions of
{¶ 7} Magee now appeals, raising two assignments of error:
- The Trial Court‘s sentence of Christopher L. Magee (“Appellant“) is excessive.
- The Trial Court‘s sentence of Appellant violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution insofar as the Trial Court based its original sentence in part upon Appellant siring offspring outside of the bonds of matrimony.
II. Law and Analysis
{¶ 8} Magee‘s assignments of error both relate to his prison sentence. He first
A. The State‘s Argument
{¶ 9} As a threshold matter, we disagree with the state‘s assessment that Magee is barred from appealing his prison sentence. When a trial court places a defendant on community control and, pursuant to
{¶ 10} Here, although the trial court‘s 2018 sentencing entry stated that Magee was “ordered to serve remaining [sic] balance of the previously suspended sentence * * *,” the trial court did not impose and suspend a prison term at Magee‘s 2017 sentencing. The transcript from the 2017 sentencing hearing and the 2017 sentencing entry both show that the trial court sentenced Magee directly to community control sanctions and that the trial court‘s advisement about the prison term that it would impose if Magee violated community control was the warning required by
B. Failure to Comply with R.C. 2929.11
{¶ 11} Magee first argues that the trial court erred by imposing an excessive sentence and disregarding
{¶ 12} We review sentencing challenges under
- 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 section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant; - That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2) .
{¶ 13} A sentence is not clearly and convincingly contrary to law where the trial court sentences the defendant within the statutorily permissible range, properly applies postrelease control, and considers the principles and purposes of sentencing in
{¶ 14} If the appellate court finds that a sentence is not clearly and convincingly contrary to law, it may vacate or modify the sentence “only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.” State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
{¶ 15} Under
seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶ 16} Additionally, even when the record is silent, a trial court‘s “consideration of the appropriate factors set forth in
{¶ 17} Here, Magee claims—without citing any supporting evidence from the record—that the trial court failed to consider, under
sanctions necessary to protect the public from future crime by Magee and did not craft a sentence that was reasonably calculated to rehabilitate Magee. This is insufficient to rebut the presumption that the trial court properly considered the factors in
You know, I—not trying to be difficult here, but we‘ve given—given you a lot of opportunity here to succeed, and you don‘t want to seem to help yourself. I—I appreciate the addictions, but there are so many avenues that you would go down to address the question, the issue, and you just—you won‘t take the bait. * * * You were sentenced to 36 months prison, consecutive—two 18 month sentences consecutive, suspended, on the condition that you comply with the terms of Community Control.2 I would think that that would have been some incentive to you to attempt to turn it around. * * * I have to maintain credibility with my sentencing.
{¶ 18} Because Magee failed to point to any evidence to the contrary, we conclude that he has failed to rebut the presumption that the trial court properly considered the factors in
C. Vindictive Sentence
{¶ 19} In his second assignment of error, Magee argues that his sentence is contrary to law because the trial court vindictively imposed a harsher sentence due to Magee fathering children out of wedlock. We disagree.
{¶ 20} A sentence that is vindictively imposed on a defendant because he exercised a constitutional right is contrary to law. State v. Rahab, 150 Ohio St. 3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 8. When reviewing a sentence for vindictiveness, we begin by presuming that the trial court considered the proper sentencing criteria. Id. at ¶ 19. We then review the record for evidence of actual vindictiveness. Id. “We will reverse the sentence only if we clearly and convincingly find the sentence is contrary to law because it was imposed as a result of actual vindictiveness on the part of the trial court.” Id., citing
{¶ 21} Here, our review of the record does not show any evidence of vindictiveness. To support his argument, Magee relies entirely on statements that the trial court made at the June 2017 sentencing hearing—at which it imposed community control sanctions. While reviewing the presentence investigation report (and after noting that Magee had “at least 22 entries” on his criminal record and admitted to drinking and smoking marijuana between his plea and sentencing hearings), the trial court stated,
You got four children out of wedlock, and you‘re about 5,000 [sic] in arrears on your child support, and then you just got another gal pregnant who just had a miscarriage. I mean, don‘t you—I‘m—I‘m looking for responsible behavior and I don‘t see any.
The court then sentenced Magee to community control.
{¶ 22} Magee argues that this statement shows that the court sentenced him based on his decision to exercise his constitutional right to have children while also declining to exercise his constitutional right to marry. We disagree. Nothing in the court‘s statement shows that it intended to punish Magee because he had children without marrying the children‘s mothers. At worst, it was an “intemperate” statement. But such statements—without more—are not evidence of actual vindictiveness. State v. Satchel, 2018-Ohio-623, 106 N.E.3d 323, ¶ 24 (6th Dist.), citing Rahab at ¶ 27. And
{¶ 23} When read in the context of the trial “looking for responsible behavior” in Magee‘s PSI and in conjunction with the rest of the evidence in the record, we find that the court‘s statement about Magee having children without being married is not evidence of vindictiveness. Notably, the trial court sentenced Magee to community control at the hearing where it referred to Magee‘s children. The court did not send Magee to prison until a year later, following a hearing at which the court did not refer to Magee‘s children or marital status at all. Rather, the transcript of the July 2018 sentencing hearing shows
that the trial court based its decision to send Magee to prison on his failure to take advantage of the services available to him through community control. In short, the record does not support Magee‘s contention that the trial court sentenced him based on animus. Therefore, Magee‘s second assignment of error is not well-taken.
D. Consecutive Sentences
{¶ 24} Although Magee did not assign the trial court‘s imposition of consecutive sentences as error, our review of the record shows that the trial court committed plain error and that Magee‘s sentence must be vacated.
{¶ 25} Plain error is error that affects an appellant‘s substantial rights. Crim.R. 52(B). An appellate court “may recognize plain error, sua sponte, to prevent a miscarriage of justice.” State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 66 (8th Dist.); State v. Slagle, 65 Ohio St. 3d 597, 604, 605 N.E.2d 916 (1992) (recognizing that Crim.R. 52(B) allows an appellate court to sua sponte consider a trial error to which the appellant did not object). Plain error should be found “only in exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Hill, 92 Ohio St. 3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “[A] trial court‘s failure to make the findings required by
see also Vinson at ¶ 71 (sua sponte finding plain error in the trial court‘s imposition of consecutive sentences when “the record clearly and convincingly demonstrates that the trial court failed to make all of the findings required under
{¶ 26} Before imposing consecutive sentences, a trial court is required to make three findings: (1) consecutive sentences are “necessary to protect the public from future crime or to punish the offender * * *;” (2) imposition of consecutive sentences is not “disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public * * *;” and (3) one of the factors in
findings under
{¶ 27} The record here shows that the trial court did not make the findings required by
III. Conclusion
{¶ 28} Based on the foregoing, the July 31, 2018 judgment of the Sandusky County Court of Common Pleas is reversed, Magee‘s sentence is vacated, and this case is remanded to the trial court for proceedings consistent with this decision. The state is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
State v. Magee
C.A. No. S-18-029
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, P.J.
CONCUR.
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JUDGE
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JUDGE
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JUDGE