[Cite as State v. Carver, 2013-Ohio-2113.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA3505
:
vs. :
: DECISION AND JUDGMENT
DAVID L. CARVER, : ENTRY
:
Defendant-Appellant. : Released: 05/15/13
_____________________________________________________________
APPEARANCES:
George L. Davis, IV, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment of conviction and sentence. Appellant, David L. Carver, pled
guilty to: 1) an amended charge of voluntary manslaughter in violation of
R.C. 2903.03; 2) having a weapon under disability in violation of R.C.
2923.13(A)(2); and 3) tampering with evidence in violation of R.C.
2921.12(A), in addition to firearm and repeat violent offender specifications.
On appeal, Appellant contends that the trial court abused its discretion in
imposing sentence. In light of our determination that the sentences imposed
Scioto App. No. 12CA3505 2
by the trial court were not contrary to law and that the trial court did not
abuse its discretion in imposing them, Appellant’s sole assignment of error
is overruled. Accordingly, the decision of the trial court is affirmed.
FACTS
{¶2} We recount the facts as set forth in our first consideration of this
matter in State v. Carver, 4th Dist. No. 10CA3337, 2012-Ohio-3479. In the
early evening of July 22, 2009, Crystal Bennett was shot in the Scioto Trail
area of Portsmouth. When police first arrived at the scene, Appellant
reported that he and the victim (his girlfriend) were victims of a robbery
gone awry. Appellant, however, changed his account of the events several
times that evening and, eventually, admitted that he held the gun when it
fired. Bennett later died.
{¶3} The Scioto County Grand Jury returned an indictment that
charged Appellant with two counts of murder, possession of a weapon while
under disability and tampering with evidence, along with firearm and repeat
violent offender specifications. Appellant initially pled not guilty, but later
agreed to plead guilty to an amended count of voluntary manslaughter as
well as the non-homicide counts.
{¶4} At the May 19, 2010, hearing, the trial court endeavored to
determine if Appellant was familiar with his rights and if his plea was
Scioto App. No. 12CA3505 3
knowing and voluntary. The court accepted Appellant’s plea, found him
guilty of the three charges and sentenced him to serve ten years
imprisonment for voluntary manslaughter, four years for having a weapon
under disability, four years for tampering with evidence, three years on the
firearm specification and nine years on the repeat violent offender
specification with the sentences to be served consecutively for an aggregate
total of thirty years in prison. Appellant filed an appeal from the trial court’s
decision and sentence at that time; however, we dismissed that appeal for
lack of a final, appealable order after we determined that the original murder
count was unresolved and still pending. As a result, the trial court dismissed
the remaining, pending charge on August 9, 2012. Appellant now brings his
current appeal, assigning the following error for our review.
ASSIGNMENT OF ERROR
“I. THE COURT ABUSED ITS DISCRETION IN IMPOSING
SENTENCE.”
LEGAL ANALYSIS
{¶5} In his sole assignment of error, Appellant contends that the trial
court abused its discretion in imposing sentence. Appellant argues that “the
record of the Sentencing Hearing is silent in it entirety to the trial court’s
specific consideration of any factors relating to seriousness, or mitigation,
pursuant to Ohio Revised Code § 2929.12.” Appellant further argues that
Scioto App. No. 12CA3505 4
while the sentencing entry makes reference the presence of factors indicating
that the offender’s conduct was more serious than conduct normally
constituting the offense, there was no such reference during the sentencing
hearing.
{¶6} When reviewing felony sentences, this Court follows the two-
step approach the Supreme Court of Ohio outlined in State v. Kalish, 120
Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4; see State v. Welch, 4th
Dist. No. 08CA29, 2009-Ohio-2655, ¶ 6. “First, [we] must examine the
sentencing court's compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law. If this first prong is satisfied, [that is, if the
sentence complies with the law,] the trial court's decision shall be reviewed
under an abuse-of-discretion standard.” Kalish at ¶ 4. “As to the first step,
the Kalish court did not clearly specify what ‘pertinent laws' we are to
consider to ensure that the sentence ‘clearly and convincingly’ adheres to
Ohio law. The only specific guideline is that the sentence must be within the
statutory range * * *.” State v. Ross, 4th Dist. No. 08CA872, 2009-Ohio-
877, ¶ 10.
{¶7} “[T]rial courts have full discretion to impose sentences within
the statutory range and determine whether a sentence satisfies the overriding
Scioto App. No. 12CA3505 5
purposes of Ohio's sentencing statutes.” Welch at ¶ 11. “ ‘[I]n order for there
to be an abuse of discretion, the trial court's decision must be “ * * * so
palpably and grossly violative of fact or logic that it evidences not the
exercise of will, but perversity of will; not the exercise of judgment, but
defiance of judgment; and not the exercise of reason, but, instead, passion or
bias.’ ” Welch at ¶ 12; quoting Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d
254, 256, 662 N.E.2d 1 (1996).
{¶8} Here, Appellant’s sentences for his various offenses and
specifications were within the statutory range:1
Count 2: Voluntary Manslaughter, R.C. 2903.03, a first degree felony
Range: 3 to 10 years / Sentence: 10 years
Count 3: Weapon under Disability, R.C. 2923.13(A)(2), a third degree
felony
Range: 1 to 5 years / Sentence: 4 years
Count 4: Tampering with Evidence, R.C. 2921.12(A), a felony of the third
degree
Range: 1 to 5 years / Sentence: 4 years
Firearm Specification, R.C. 2941.145
Sentence: Three years as provided under R.C. 2929.14(D)(1)(a)(ii)
Repeat Violent Offender Specification, R.C. 2941.149
Sentence: Nine years as provided by R.C. 2929.14(D)(2)(b)
1
We apply the versions of R.C. 2929.14 and 2929.01 that were in effect at the time Appellant committed
these crimes, which versions both became effective April 7, 2009.
Scioto App. No. 12CA3505 6
{¶9} The only actual argument advanced by Appellant with respect to
the first prong of Kalish relates to the sentences imposed for the voluntary
manslaughter conviction and the repeat violent offender specification.
Appellant contends that the trial court, in its journal entry, made a finding
related to Appellant’s conduct being more serious than the norm, which
finding it did not make in open court during Appellant’s sentencing hearing.2
{¶10} Appellant’s sentence on the voluntary manslaughter
conviction, while it was the maximum, was within the statutory range and
thus was not contrary to law. Further, R.C. 2929.14(D)(2)(b) provides that
an additional definite prison term of one to ten years shall be imposed on
offenders pleading guilty to a repeat violent offender specification of the
type described in R.C. 2941.149, of which Appellant pled. More
specifically, R.C. 2929.14(D)(2)(b)(i)-(iii) provides that an offender shall be
sentenced to such additional prison term if: 1) he or she is not sentenced to
life imprisonment without parole on the first degree felony that is an offense
of violence that he or she is currently pleading to; and 2) he or she, within
the last twenty years, has been convicted of or pleaded guilty to three or
more offenses described in (CC)(1) of section 2929.01 of the Revised Code.
The “three or more offenses” can include the current offense to which an
2
This finding is actually referred to in R.C. 2929.14(D)(2)(b)(v).
Scioto App. No. 12CA3505 7
offender is pleading. For our purposes, R.C. 2929.01(CC)(1)-(2) essentially
provides that a “repeat violent offender” is a person that is currently being
sentenced for committing “* * * any felony of the first or second degree that
is an offense of violence,” and has been previously “convicted of or pleaded
guilty to an offense described in * * * this section.”
{¶11} Here, a review of the record indicates that the trial court made
the necessary findings required for imposition of an additional definite
prison term under R.C. 2929.14(D)(2)(b) in connection with Appellant’s
plea to the repeat violent offender specification. For instance, at the
sentencing hearing, the trial court stated on the record that
“I find that the offense of voluntary manslaughter that he
entered a plea to is a felony of the first degree which is an
offense of violence. And the Court is not permitted under Ohio
law to impose a sentence of life in prison without parole.”
As such, the trial court imposed a ten year sentence for Appellant’s
voluntary manslaughter conviction.
The trial court further stated on the record as follows:
“Having found that you have a prior conviction of a felony 1
and 2, both offenses of violence, having found that the
voluntary manslaughter is an offense of violence and is a felony
Scioto App. No. 12CA3505 8
of the first degree, under a repeat violent offender specification
I’m going to impose an additional sentence of nine (9) years in
the custody of the Ohio Department of Rehabilitation and
Correction.”3
Thus, the trial court made the necessary findings under R.C.
2929.14(D)(2)(b) for imposition of an additional definite prison term in
connection with Appellant’s plea of guilt to the repeat violent offender
specification.
{¶12} The additional finding contained in the trial court’s sentencing
entry related to the seriousness of the offense, and which Appellant
complains of on appeal, was actually not required to be made under R.C.
2929.14(D)(2)(b). That finding is required when imposing an additional
definite sentence on a repeat violent offender under R.C. 2929.14(D)(2)(a).
R.C. 2929.14(D)(2)(a) provides that “[i]f division (D)(2)(b) of this section
does not apply,” the court may impose an additional definite prison term
when certain criteria are met, one of which is found in R.C.
2929.14(D)(2)(a)(v), as mentioned by the trial court in its sentencing entry.
3
Earlier in the sentencing hearing it was stated on the record that Appellant’s previous offenses of violence
occurred in 1996 and 2002, and thus fell into the 20 year period provided in R.C. 2929.14(D)(2)(b)(ii).
Further, combining the two previous offenses with the current offense, Appellant has “three or more”
offenses of violence as required under R.C. 2929.14(D)(2)(b)(ii).
Scioto App. No. 12CA3505 9
However, here, R.C. 2929.14(D)(2)(b) applies and there was no need to
comply with the separate requirements contained in R.C. 2929.14(D)(2)(a).
As such, Appellant's sentence satisfies the first prong of Kalish and we now
review his sentence for an abuse of discretion.
{¶13} As already discussed above, Appellant seems to argue that the
trial court abused its discretion in failing to make express findings during the
sentencing hearing regarding the seriousness of Appellant’s actions, and also
failed to take into consideration evidence of mitigating factors that was
presented. As indicated under our analysis of the first prong of Kalish, a
review of the record indicates that the trial court considered the appropriate
statutory factors before sentencing Appellant and thus did not abuse its
discretion when it sentenced Appellant.
{¶14} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, the Supreme Court of Ohio excised the portion of the
sentencing statutes that required judicial fact-finding. “[T]rial courts now
‘have full discretion to impose a prison sentence within the statutory range
and are no longer required to make findings or give their reasons for
imposing maximum, consecutive, or more than the minimum sentences.’ ”
State v. Adams, 4th Dist. Nos. 04CA2959, 05CA2986, 2009-Ohio-6491, ¶
Scioto App. No. 12CA3505 10
90; quoting Foster at paragraph seven of the syllabus.4 “However, they must
still consider R.C. 2929.11 and R.C. 2929.12 before imposing a sentence.”
Adams at ¶ 90; citing Kalish at ¶ 13. Further, we are mindful “this Court's
function is not to evaluate the sentence and ask if we would have imposed a
similar sentence, but, rather, to determine whether the trial court considered
the statutory mitigating factors.” State v. Phillis, 4th Dist. No. 08CA13,
2008-Ohio-6748, ¶ 15.
{¶15} R.C. 2929.11(A) provides, “[t]he overriding purposes of felony
sentencing are to protect the public from future crime by the offender and
others and to punish the offender.”5 R.C. 2929.12 requires the trial court
consider the seriousness of the crime and the likelihood the offender will
recidivate.
{¶16} Here, the trial court properly considered the purposes of
sentencing under R.C. 2929.11 and the seriousness of the offenses and
Appellant's likelihood to recidivate under R.C. 2929.12. Specifically, during
the sentencing hearing, the trial court noted Appellant’s past criminal record,
which included two serious felonies that were offenses of violence. Further,
the trial court stated:
4
In stating this, we acknowledge that the General Assembly recently enacted H.B. 86, effective September
30, 2011, which amends R.C. 2929.14 and requires fact finding for consecutive sentences. The
amendment, however, does not apply to Appellant, who was sentenced on June 8, 2010, prior to the
effective date of H.B. 86. See State v. Anderson, 4th Dist. No. 10CA44, 2012-Ohio-3245, ¶ 14.
5
Former version of R.C. 2929.11.
Scioto App. No. 12CA3505 11
“I find without the repeat violent offender specification that the
prison terms available to this Court are inadequate to punish the
offender and protect the public from future crime. I find with
his prior sentence that there is a likelihood of recidivism in this
case.”
The trial court further stated that it had “reviewed the principles and rules
associated with sentencing in the State of Ohio and the factors associated
with that contained in 2929 of the Ohio Revised Code.” Additionally, the
trial court’s sentencing entry states that the court
“considered the record, oral statements, any victim statement
prepared, as well as the principles and purposes of sentencing
under the Ohio Revised Code section 2929.11, and has
balanced the seriousness and recidivism factors [sic] Ohio
Revised Code section 2929.12, including (B) (C) (D) & (E),
and considered these facts in O.R.C. Section 2929.13(B).”
{¶17} Finally, with regard to Appellant’s argument that the trial court
failed to consider mitigating factors in rendering sentence, nothing in the
record suggests that the trial court failed to consider evidence presented by
Appellant on the issue of mitigation. Thus, Appellant’s argument goes more
to the weight the trial court assigned to that evidence, rather than to the trial
Scioto App. No. 12CA3505 12
court’s consideration of the evidence. Such a claim has no merit. See State
v. Hurst, 4th Dist. No. 10CA33, 2012-Ohio-2465, ¶ 31.
{¶18} As Appellant's sentence was not contrary to law and the trial
court considered the appropriate statutory factors and made the necessary
findings prior to imposing sentence, we find the trial court did not abuse its
discretion in sentencing Appellant. Accordingly, we overrule Appellant's
sole assignment of error.
JUDGMENT AFFIRMED.
Scioto App. No. 12CA3505 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs herein be taxed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court 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 proceedings 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.
Exceptions.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _______________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to 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.
State v. Carver
Combined Opinion