STATE OF OHIO v. MICHAEL TAYLOR
No. 107881
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
August 22, 2019
[Cite as State v. Taylor, 2019-Ohio-3367.]
EILEEN T. GALLAGHER, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-623637-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 22, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Debora Brewer, Assistant Prosecuting Attorney, for appellee.
Law Office of Anna Markovich, and Anna Markovich, for appellant.
EILEEN T. GALLAGHER, P.J.:
{1} Defendant-appellant, Michael Taylor, appeals from his sentence following a guilty plea. He raises the following assignment of error for review:
The maximum sentences for defendant‘s convictions are not supported by the record and contrary to law because in sentencing defendant the
trial court failed to consider the purposes and principles of felony sentencing factors set forth in R.C. 2929.11 and the sentencing factors set forth inR.C. 2929.12 .
{2} After careful review of the record and relevant case law, we affirm.
I. Procedural and Factual History
{3} In December 2017, Taylor was named in a three-count indictment, charging him with endangering children in violation of
{4} In June 2018, Taylor pleaded guilty to felonious assault in violation of
{5} A sentencing hearing was held in July 2018. The state sought imposition of the maximum prison sentencing based on the seriousness of Taylor‘s conduct and the substantial injuries suffered by the victim. The state expressed that, as a result of Taylor‘s conduct, the child is now blind, requires a feeding tube, cannot walk, and is nonverbal. The trial court also heard from the victim‘s mother, who
He is not even two and he can‘t walk and he can‘t eat and he can‘t see. He literally goes to bed and just stays there. He‘s like a newborn, he has no head control. He can‘t go for a long car ride, he can‘t go to the store. He literally can‘t do anything. When before he did everything, you know, he walked upstairs and he talked and wanted to eat, and now he‘s just not who he was when he was born, or when he was one. And he‘s never going to be again. The doctors basically say we‘re lucky to have him how he is right now and this is pretty much the most we‘re ever going to get out of him.
{6} The trial court then heard from Taylor. Taylor accepted responsibility for his actions, expressed remorse, and referenced his problems with drugs and alcohol. The trial court then sentenced Taylor to eight years in prison on the felonious assault offense, to be served concurrently with a 36-month prison term on the endangering children offense. In formulating Taylor‘s sentence, the trial court stated, in relevant part:
Before imposing sentence, this court will note that it has considered the record, the oral statements made here today, the presentence-investigation report, as well as the statement of the victim‘s mother.
The court has also considered the purposes and principles of sentencing under
Revised Code Section 2929.11 , and the seriousness and recidivism factors relevant to the offense and the offender pursuant toR.C. 2929.12 , and the need for deterrence, incapacitation, rehabilitation, and restitution. I find that a prison term is consistent with the purposes and principles of sentencing.
{7} Taylor now appeals from his sentence.
II. Law and Analysis
{8} In his sole assignment of error, Taylor argues his sentence is contrary to law because the sentence is not supported by the record, and the trial court failed
{9} When reviewing felony sentences, we apply the standard of review set forth in
{10} An “appellate court‘s standard for review is not whether the sentencing court abused its discretion. As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20 (8th Dist.), quoting
{11} A sentence is contrary to law if it falls outside the statutory range for the particular degree of offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{12} Pursuant to
{14} When a sentence is imposed solely after consideration of the factors in
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 as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{15} In this case, there is no dispute that the trial court imposed a prison term within the applicable statutory range and expressly stated that it considered
““The weight to be given to any one sentencing factor is purely discretionary and rests with the trial court.” State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v. Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A lawful sentence “cannot be deemed contrary to law because a defendant disagrees with the trial court‘s discretion to individually weigh the sentencing factors. As long as the trial court considered all sentencing factors, the sentence is not contrary to law and the appellate inquiry ends.” Price at id., quoting Ongert at ¶ 12.
State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15.
{17} In an effort to challenge the adequacy of the trial court‘s statutory considerations, Taylor is merely asking this court to substitute our judgment for that of the trial court, which, as stated, appellate courts are not permitted to do. State v. McCoy, 8th Dist. Cuyahoga No. 107029, 2019-Ohio-868, ¶ 19 (“We cannot substitute our judgment for that of the sentencing judge.“). Moreover, by asking this court to view the seriousness and scope of his conduct in light of the relevant mitigating factors, Taylor is encouraging this court to independently weigh the sentencing factors, which appellate courts are also not permitted to do. Ongert at
{18} While Taylor references certain sentencing factors that weigh in his favor, he ignores the relevant factors that apply and were relied on by the trial court in crafting Taylor‘s sentence. Here, the record reflects that the trial court carefully considered the relevant seriousness factors, including the age of the victim, Taylor‘s position of control over the victim, the nature of Taylor‘s conduct, and the significant and lasting injuries sustained by the victim. Regarding these factors, Taylor‘s presentence investigation report reflects that Taylor inflicted “blunt force trauma” to a then 13-month child who was under his supervision and care. The child “suffered serious physical harm, including a fractured skull, retinal hemorrhaging, and bleeding on his brain.” In addition, the trial court considered all relevant recidivism factors, including Taylor‘s criminal history, his pattern of drug or alcohol abuse, and information that Taylor was on probation at the time the offense occurred in this case. Regarding those factors, Taylor‘s presentence investigation report assessed him as posing a “high” risk of recidivism.
{19} Under the totality of these circumstances, we are unable to conclude, by clear and convincing evidence, that the trial court‘s considerations under
{20} Accordingly, Taylor‘s sole assignment of error is overruled.
{21} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY