STATE OF OHIO, Appellee, - vs - CARL E. SALLIS, Appellant.
CASE NO. CA2019-12-092
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
8/3/2020
[Cite as State v. Sallis, 2020-Ohio-3924.]
PIPER, J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 19CR000487
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, fоr appellant
O P I N I O N
PIPER, J.
{¶1} Appellant, Carl Sallis, appeals his sentence in the Clermont County Court of Common Pleas after pleading guilty to failure to comply and driving under the influence (“OVI“).
{¶2} While under the influence of alcohol, marijuana, and Percocet, Sallis led police on a dangerous high-speed chase that included multiple crashes. At times, Sallis’
{¶3} Sallis agreed to plead guilty to single counts of failure to comply and OVI, and the other cоunt was dismissed. The trial court ordered a presentence investigation, which revealed that Sallis had an extensive criminal history, as well as past convictions and multiple pending charges for OVI. The trial court sentenced Sаllis to three years on the failure to comply charge and 180 days on the OVI charge. The trial court ordered the sentences to run concurrently for an aggregate sentence of three years. Sallis now appeals his sentence, raising the following assignment of error:
{¶4} THE TRIAL COURT‘S MAXIMUM 36 MONTH PRISON SENTENCE IS NOT SUPPORTED BY THE RECORD.
{¶5} Sallis argues in his assignment of error that the trial court‘s sentence is not supported by the record.
{¶6} When reviewing felony sentences, this court has applied the standard of review set forth in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002. According to Marcum, this court could modify a trial court‘s sentence if we were to find by clear and convincing evidence (1) that the record did not support the sentencing court‘s findings, or (2) that the sentence was otherwise contrary tо law. However, upon closer inspection of the statute, and as argued by the state,
{¶7} In full,
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, оr division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Thus, and according to the plain language of the statue, the only findings this court has authority to review are those the trial court makes specific to
{¶8} The reсord clearly demonstrates that the trial court did not make any findings according to these enumerated statutory provisions within subsection (a). Thus, our review is limited to whether Sallis’ sentence is clearly and convincingly contrary to law pursuant to
{¶9} A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of
{¶10} The record indicates that the trial court considered the sentencing factors according to
{¶11} In the past, and as directed by Marcum, we would have reviewed the trial court‘s findings made pursuant to
{¶12} The beginning point in our decision to turn away from Marcum and toward the plain language of
{¶13} Recently, in State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, the Ohio Supreme Court found that an appellate court should not consider the factors within
{¶14} In a concurring opinion, Justice Kennedy opined that the Marcum standard – requiring all trial court findings to be supported by the record – is dicta and should not be used by reviewing courts. Justice Kennedy noted that the plain language of
If the lead opinion would simply acknowledge that the language in paragraph 23 of Marcum is dictum and instruct the court of appeals that it should not follow that paragraph of Marcum, we could make the expedient determination that
R.C. 2953.08(G)(2) does not authorize appellate review of a trial court‘sR.C. 2929.11 and2929.12 findings and move on. Because the lead opinion resists the obvious, it muddies the waters of Ohio‘s sentencing jurisprudence even more.
{¶15} The plain languagе of the statute patently supports Justice Kennedy‘s concurrence. Regarding a review of the trial court‘s findings,
{¶16} We recognize that Gwynne was a plurality decision, that the majority of the court did not join in Justice Kennedy‘s concurrence, and that Gwynne did not overrule Marcum expressly.2 However, those facts do not change the longstanding mandate that an appellate court‘s reviеw must be authorized by Ohio‘s sentencing statutes, or that a reviewing court has no authority to take measures of review not expressly enumerated by statute.
{¶17} When reviewing a sentence, an appellate court is bound by statute, rather
{¶18} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
HENDRICKSON, P.J., concurring separately.
{¶19} While I concur in the majority‘s deсision to affirm Sallis’ sentence, I write separately to address the standard of review that an appellate court should employ when reviewing a felony sentence. In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1, a unanimous Ohio Supreme Court held that pursuant to thе “plain language of
fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in
R.C. 2929.11 and2929.12 under a standard that is equally differential to the sentencing court. That is, an appellate court may modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
(Emphasis added.) Id. at ¶ 23
{¶20} The supreme court recently revisited its Marcum decision in State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, a plurality opinion in which the court concluded that
{¶21} Accordingly, as Marcum was not overruled, I would continue to apply the standard of appellate review set forth in Marcum to a defendant‘s challenge to the duration of a prison term imposed on a single offense. Applying this standard to the facts of the present case, I conclude that Sallis’ sentence is not contrary to law and is supported by the record. As the majority noted in its analysis, Sallis’ sentence is not clearly and convincingly contrary to law as the court properly considered the principles and purposes of sentencing as set forth in
{¶22} Furthermore, the imposition of a 36-month prison sentence is supported by the record. As the triаl court noted, Sallis poses a high risk of recidivism. Sallis has a lengthy criminal history, which includes a prior conviction for failure to comply as well as convictions for theft, aggravated robbery, abduction, OVI, trafficking in heroin, aggravated trafficking in drugs, and tampering with evidence. At the time Sallis committed the present offense, he did not have a valid driver‘s license and had OVI charges pending in both Butler County and Hamilton County. Additionally, the record demonstrates that Sallis’ conduct