STATE OF OHIO, Plаintiff-Appellee, v. TONYA J. MOORE, Defendant-Appellant.
Case No. 18CA1070
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
RELEASED: 04/10/2019
[Cite as State v. Moore, 2019-Ohio-1467.]
DECISION AND JUDGMENT ENTRY
Matthew F. Loesch, Portsmouth, Ohio, for appellant.
C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant Adams County Prosecutor, West Union, Ohio, for appellee.
Hess, J.
{¶1} Tonya Moore pleaded guilty to three counts of aggravated vehicular assault in violation of
I. FACTS
{¶2} The Adams County Grand Jury indicted Moore on three counts of aggravated vehicular assault in violation of
{¶3} During the second change of plea hearing, Moore again pleaded guilty as charged after the court advised her that the maximum sentence for each offense was 60 months in prison, the mandatory minimum prison term for each offense was 12 months, and post-release control was mandatory for threе years because she committed offenses of violence. Moore explained that the night before she committed the offenses, she took five Xanax pills without a prescription to calm her nerves. She drove a vehicle, and she was charged in a separate case in Pike County with оperating a vehicle under the influence of alcohol or drugs (“OVI”). Moore claimed that the next day, unaware that she was still under the influence of the Xanax, she drove to her doctor‘s office and then to a hospital to pick up medical reports. She denied taking her prescription Valium оr Ativan that day. After leaving the hospital, she caused an
{¶4} The trial court conducted a sentencing hearing at which it considered the record, oral statements, victim impact statements, presentence invеstigation report, principles and purposes of sentencing in
II. ASSIGNMENTS OF ERROR
{¶5} Moore assigns the following errors for our review1:
- Appellant‘s sentence is void as the trial court improperly ordered that she was subject to mandatory post release control.
- The trial court abused its discretion by failing to properly consider and apply the seriousness and recidivism factors to the Appellant.
{¶6} When reviewing felony sentences appellate courts must apply the standard of review set forth in
- 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;
- That the sentence is otherwise contrary to law.
{¶7} “Although
{¶8} “The defendant bears the burden of establishing by clear and convincing evidence that the sentence is either contrary to law or not supported by the record.” Shankland at ¶ 20. Clear and convincing evidence is
that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction аs to the facts sought to be established.
State ex rel. Rogers v. Dept. of Rehab. & Correction, ___ Ohio St.3d ___, 2018-Ohio-5111, ___ N.E.3d ___, ¶ 5, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶9} In the first assignment of error, Moore maintains that her sentence is void because the trial court erred in concluding a violation of
{¶10} In State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, the Supreme Court of Ohio explained:
It is settled that “a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing” and that “any sentence imposed without such notification is contrary to law.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. Concomitantly, because a court is generally said to speak only through its journal, id. at ¶ 6, the trial court is “required to incorporate that notice into its journal entry imposing sentence,” id. at ¶ 17.
Id. at ¶ 8.
{¶11} “When a court fails to properly impose post-release cоntrol for a particular offense, the offending portion of the sentence is void, must be set aside, and is subject to review and correction.” (Emphasis added.) State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781, ¶ 41, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 27-29; State v. Triplett, 4th Dist. Lawrence No. 10CA35, 2011-Ohio-4628, ¶ 4. “[I]n the absence of a proper sentencing entry imposing postrelease
{¶12} At the sentencing hearing, the court must, among other things, “notify the offender that he or she ‘will’ or ‘may’ ‘be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for’ a felony.” Grimes at ¶ 9, quoting former
{¶13}
{¶14}
- A violation of section
2903.01 ,2903.02 ,2903.03 ,2903.04 ,2903.11 ,2903.12 ,2903.13 ,2903.15 ,2903.21 ,2903.211 ,2903.22 ,2905.01 ,2905.02 ,2905.11 ,2905.32 ,2907.02 ,2907.03 ,2907.05 ,2909.02 ,2909.03 ,2909.24 ,2911.01 ,2911.02 ,2911.11 ,2917.01 ,2917.02 ,2917.03 ,2917.31 ,2919.25 ,2921.03 ,2921.04 ,2921.34 , or2923.161 , of division (A)(1) of section2903.34 , of division (A)(1), (2), or (3) of section2911.12 , or of division (B)(1), (2), (3), or (4) of section2919.22 ofthe Revised Code or felonious sexual penetration in violation of former section 2907.12 of the Revised Code; - A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section, division, or оffense listed in division (A)(9)(a) of this section;
- An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons;
- A consрiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section.
{¶15} Moore‘s offenses do not satisfy any of the definitions of an “offense of violence.” A violation of
{¶16} Because the trial court sentenced Moore to prison terms for third-degree felonies that are not offenses of violencе or sex offenses, post-release control is discretionary in this case. Thus, the trial court erred at both the sentencing hearing and
V. EXCESSIVE PRISON TERM
{¶17} In the second assignment of error, Moore maintains that her aggregate prison term is excessive. Her individual prison terms are not contrary to law because they are within the statutory range, the court stated that it considered the factors in
{¶18} Moore asserts that the trial court abused its discretion by failing to properly apply the seriousness and recidivism factors in
{¶20} Finally, we note Moore does not challenge the consecutive sentencing findings the trial court made pursuant to
{¶21} Moore did not meet her burden to establish by clear and convincing evidence that her prison terms are either contrary to law or not supрorted by the record. Accordingly, we overrule the second assignment of error.
VI. CONCLUSION
{¶22} Having sustained part of Moore‘s first assignment of error, we reverse the post-release control portion of her sentence and remand for resentencing on that
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the ADAMS COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of procеedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Smith, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant tо Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.