[Cite as State v. Thomas, 2014-Ohio-5262.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 26123
v. : T.C. NO. 13CR171/2
CHANCE THOMAS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 26th day of November , 2014.
..........
TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
..........
2
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Chance Thomas,
filed March 11, 2014. Thomas appeals from his February 4, 2014 judgment entry of
conviction, asserting that the trial court erred in overruling his motion to suppress and in
imposing a four-year sentence for felonious assault (serious harm), in violation of R.C.
2903.11(A)(1), a felony of the second degree. We hereby affirm the judgment of the trial
court.
{¶ 2} We note that Thomas was initially charged by way of complaint on January
14, 2013, on one count of felonious assault in Miamisburg Municipal Court. Thomas was
subsequently indicted on February 28, 2013, along with Emad Addin M. Saleh, in the
Montgomery County Court of Common Pleas, on one count of aggravated robbery (serious
harm), a felony of the first degree. Thomas entered a plea of not guilty on March 14, 2013.
On March 15, 2013, a “Reindictment ‘B’” was issued charging Thomas, Saleh, and Wesley
J. Qualls Jr. each with one count of felonious assault, and charging Saleh and Thomas with
one count of aggravated robbery. The “Reindictment “B’” also charged Qualls with one
count of robbery. The victim herein is William Jeffrey Schwarz. On March 18, 2013,
Thomas pled not guilty to the reindicted charges, and on April 2, 2013, he filed his motion to
suppress. On April 30, 2013, the court issued an entry providing that “a nolle prosequi
without prejudice is entered by order of the court” to the February 28, 2013 indictment.
{¶ 3} The court held a hearing on the motions to suppress of both Thomas and
Saleh on May 16, 2013. Detective Mark Allison testified that he is a 33 year veteran with
the West Carrollton Police Department. He testified that he participated in the investigation
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of a robbery and assault complaint that was made on November 26, 2012 by Schwarz.
Allison stated that the offenses occurred at the rear parking lot of Leisure Lawn on Liberty
Lane in West Carrollton. Allison testified that in the course of his investigation, he
identified Thomas and Saleh as individuals involved in the offenses. Allison stated that he
interviewed Thomas on January 4, 2013, at Miamisburg High School, having learned from
a school resource officer that Thomas was there. Allison stated that he met with Thomas at
approximately 10:00 a.m. According to Allison, Thomas was not handcuffed when he was
brought to a conference room in the high school, and he was not under arrest. Allison stated
that Thomas did not appear to be under the influence of alcohol or drugs, and that Thomas
understood the purpose of the interview. Allison stated that he explained Thomas’
constitutional rights to him from a standard printed form maintained by the West Carrollton
Police Department. Allison identified a copy of the form he used when he interviewed
Thomas. Allison testified as follows regarding the form:
I showed it to him, filled in the information at the top, and I read, like,
“Your rights. Before asking any questions you must understand your rights.”
And I went through the five rights. I went through the first one. I asked
him verbally if he understood. If you understood, I need a verbal yes. We
did that same protocol for all five. I then read and showed him the waiver of
rights which he stated he understood and then how many years of schooling
he has completed up to that point. He put 11 in and I said, “If you want to
talk, talk to me. Just sign this line.” And I signed it and I believe Ryan
Copsey witnessed it.
4
{¶ 4} Allison stated that he did not promise Thomas anything in exchange for his
signature, and that he did not threaten Thomas if he refused to sign the form. According to
Allison, Thomas did not ask any questions about the form, nor did he request the assistance
of an attorney. After Thomas agreed to speak to him, Allison testified that he interviewed
him about the incident involving Schwartz. Allison stated that Thomas did not ask to stop
the questioning in the course of the interview. Allison testified that at no time did Thomas
exhibit reluctance in answering questions. According to Allison, Thomas agreed to write a
statement, and Allison identified a copy of Thomas’ written statement in court, which he
testified included questions and answers. Allison denied that Thomas ever asked any
questions or requested the assistance of an attorney while writing his statement. When
asked what Thomas did at the end of the interview, Allison responded, “As far as I know, he
went back to school. He was free to do whatever he wanted to do.” Allison stated that at the
end of the interview, he did not arrest Thomas or take him into custody.
{¶ 5} On cross-examination, Allison testified that the school resource officer who
contacted him about Thomas’ location is also a Miamisburg police officer who works in
Miamisburg High School. Allison stated that Allison “contacted him probably in previous
days letting him know I’m looking for this guy, didn’t know if he was in school or not and
he told me if he shows up he’d contact me.” Allison stated that when he arrived at the
school, Thomas was taken out of class and initially brought to the principal’s office to meet
him, and that the school resource officer then accompanied them to the conference room and
was present during the interview. The following exchange occurred:
Q. And the first thing you did was read his Miranda rights?
5
A. Yes.
Q. You didn’t tell him why you were there?
A. I could have very well said, “I want to talk to you about Jeff
Schwarz. I’m going to go over your rights first.” It could have very well
gone that way, but I couldn’t tell you for sure.
Q. Well, do you remember what you told him when you - - what you
told him you were there for?
A. Probably introduced myself and told him I wanted to talk about
the incident with Jeff Schwarz.
Q. Said you probably introduced yourself?
A. Well, I’m sure he would have asked who I was and that’s usually
what I do is I introduce myself if I don’t know him.
Q. And did he know what you were talking about when you said,
“Jeff Schwarz?” Did he acknowledge that in any way?
A. He seemed to know exactly what I was talking about.
Q. Why do you say, “He seemed to know exactly?”
A. There’s no denial, there’s no surprised look, there’s no - - he just
kind of shook his head up and down and - -
***
Q. * * * And when you told him you were there about the Schwarz
incident did you describe what the incident was or did you just use that term,
“the Schwarz incident?”
6
A. I think he knew what it was already.
Q. Why do think that he knew?
A. I didn’t ask any immediate questions about it. I explained to him I
wanted to get his side of this thing and there’s two sides to every story.
Q. Did you tell him that he was not in trouble and you weren’t
looking to arrest him?
A. I may have said I’m not looking to arrest him. I want to get the
whole story.
***
Q. But you wouldn’t have told him that this was an incident of street
justice you understood and he probably wasn’t going to be in trouble?
A. I would have said something like I’d like to know what happened.
There’s two sides to every story and I’d like to get your version of this.
Maybe there was some street justice. Maybe there was, I don’t know, but I’d
like to know what happened here.
Q. Did you tell him whether anybody had been charged at that point?
A. No, I don’t think anyone had been.
Q. Did you tell him that he could possibly be charged?
A. I probably would have told him I’m not sure what’s going to
happen with this case. The Prosecutor would have the final determination.
Q. Again, you said you probably would have told him. You don’t
remember or recall?
7
A. I don’t remember him asking a direct question about that. I think
as we got ready to leave at the end he said if charges are put anywhere, please
let me know. I remember that as we were leaving.
Q. When did you first learn that Thomas Chance (sic) was involved in
this incident?
A. I’m not sure. It could have been a week or so afterwards. One of
the officers was looking around Facebook and we could have had a possible
ID on him at the time.
Q. How did you identify him?
***
A. The victim identified him.
***
Q. * * * Do you know how old Thomas Chance is?
A. I think 18 - - 19 - -
Q. How old was he at the time you interviewed him?
A. I believe he was 18. I’m not sure.
Q. How did you determine that?
A. Looked at his date of birth.
Q. Where did you see that?
A. Could have been in OHLEG, it could have been in school
records. I’m not sure. It could have been a couple of places - -
Q. Did you look at his school records when you went there that day
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to meet with him?
A. No, I did not.
Q. When did you look at his school records?
A. I don’t remember ever looking at school records. Someone
could have told me - -
Q. So it wasn’t - -
A. - - his date of birth - -
Q. - - in his school records that you learned his date of birth.
A. Could have been on OHLEG. It could have been on driver’s
licenses.
Q. Was it before you interviewed him?
A. Most likely I would have looked at that before I interviewed him,
yes.
Q. You don’t know.
A. I would have known that before I interviewed him.
Q. Well, you’re interviewing somebody at high school and how old
are most people that are in high school?
A. I believe he - - I want to say for some reason I knew he was 18. I
was probably looking at his driver’s license records - -
Q. If he was not 18 would you have contacted his parents?
A. I think I went to his house first, anyways and didn’t have any luck
contacting him there. I left the card in the door. No one called me back. If
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they’re under 18, yes. We always make a - - effort to - - concentrated effort
to contact their parents.
When asked if he advised Thomas that he was free to leave at any time in the course of the
interview, Allison responded, “I don’t know if I told him that or not when he came in.”
{¶ 6} In overruling Thomas’ motion to suppress, the trial court determined in part
as follows:
I. FACTS
Detective Allison went through a pre-interview form with each
Defendant and followed the same procedure in each Defendant’s interview.
Defendant Saleh’s pre-interview form was marked as State’s Exhibit 1 and
Defendant Thomas’ pre-interview form was marked as State’s Exhibit 3.
The pre-interview form had two sections titled as follows: (1) Your rights,
and (2) Waiver of Rights. Detective Allison testified that he went through
each constitutional right listed on the form with each Defendant.
1. You have the right to remain silent. You do not have to make
any statements or answer any questions.
2. Anything you say can and will be used against you in a Court of
Law.
3. You have the right to talk to a lawyer for advice before we ask you
any questions and to have a lawyer with you during questioning.
4. If you do not have the money to a hire a lawyer, a lawyer
appointed by the Court, or a lawyer from the Public Defender’s, will be
10
provided to you before and during questioning without any cost to you.
5. If you decide to answer questions now without a lawyer present,
you will still have the right to stop answering at any time. You also have the
right to stop answering at any time until you talk to a lawyer.
Detective Allison testified that after he read through each
constitutional right he asked each Defendant whether they understood those
rights. Detective Allison testified that each Defendant verbally affirmed that
they understood each constitutional right. Further, each defendant signed
their name on the signature line at [the] bottom of the waiver of rights section
of the pre-interview form. Moreover, after the conclusion of each
Defendant[’]s interview, Detective Allison asked if they would be willing to
write a written statement. Each Defendant indicated they were willing to do
so and made written statements. Defendant Saleh’s written statement was
marked as State’s Exhibit 2 and Defendant Thomas’ written statement was
marked as State’s Exhibit 4.
II. LAW AND ANALYSIS
***
Here, Detective Allison properly advised each Defendant prior to their
respective interviews of their Miranda rights. Detective Allison testified that
each Defendant fully understood the rights they were waiving and that they
were not under the influence of any drugs or alcohol. Further, Detective
Allison testified that he made no threats or promises to any Defendant and
11
that neither Defendant ever asked for an attorney or refused to cooperate with
him at any point during the interview process. Neither Defendant elicited
any contrary testimony to support their argument that they were not properly
Mirandized before the interview process began.
***
{¶ 7} On January 13, 2014, after a bench trial, the trial court issued a Decision and
Verdict that provides in part as follows:
At the outset, the parties stipulated that “serious physical harm” to the
person of William “Jeff” Schwarz as to Felonious Assault * * * has been
established beyond a reasonable doubt. * * * The following facts are relevant
for purposes of this Decision and Verdict.
On November 26, 2012, Jeff Schwarz received a phone call from Phil
Ochen (now deceased) and they made plans to “hang out.” At approximately
noon that day, Mr. Ochen arrived at Mr. Schwarz’s residence in a car being
driven by Co-Defendant Wesley Qualls and an unknown passenger.1 After
Mr. Schwarz entered the vehicle, Mr. Qualls drove around until they arrived
and parked at the Leisure Lawn parking lot in West Carrol[l]ton, Ohio.
Shortly after the first car arrived, another vehicle arrived and parked in front
of the vehicle being driven by Mr. Qualls. Riding in that second vehicle
were Emad Saleh, Dorian Barnhardt, and Defendant, Chance Thomas. All
1
The trial court indicated as follows in a footnote: “At trial there was
discrepancy as to whether a third person was in the passenger seat. However,
for purposes of this Decision and Verdict, that fact is immaterial.”
12
three exited the vehicle and approached the vehicle Mr. Schwarz was sitting
in. Once Mr. Schwarz’s door was opened, it was uncontroverted that Mr.
Barnhardt threw the first punch hitting Mr. Schwarz. The three men,
including Defendant, continued to punch and kick Mr. Schwarz and left him
lying on the ground with severe injuries including a broken leg. * * *
***
In the current case, Defendant was a ready and willing participant in
ambushing the victim, Jeff Schwarz. Defendant testified that he knew that
he was going to the Leisure lawn parking lot to at the very least watch a fight
between Emad Saleh and Jeff Schwarz. At trial, Defendant testified that he
was an active participant in the attack and punched Mr. Schwarz a minimum
of three times, landing his punches to Mr. Schwarz’s head. The evidence
established beyond a reasonable doubt that Defendant acted in complicity
with Mr. Saleh and Mr. Barnhardt in attacking the victim. The parties have
stipulated that Mr. Schwarz endured serious physical harm.
Moreover, the Court finds any claim that Defendant was struck first
by Mr. Schwarz and that he acted in self-defense is neither credible nor
supported by the evidence heard at trial.
As such, the Court finds Defendant guilty beyond a reasonable doubt
of Felonious Assault in violation of O.R.C. 2903.11(A)(1).
{¶ 8} Regarding sentencing, the court indicated as follows at disposition:
And, Barry, I should say I haven’t had - - I have had the opportunity,
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and I have taken advantage of the opportunity to review your presentence
statement and recommendation. It was very tho[r]ough. It was very helpful.
I have reviewed a lot of materials from people supporting Mr. Thomas. I
reviewed, sir, your letter, which I found in many ways compelling. * * * I
want everybody to know I have reviewed that material.
***
I should indicate that I have reviewed a written victim impact
statement in this case. Let me explain why I’m going to impose the sentence
I’m going to impose. These are the factors, pro and con, relative to Mr.
Thomas that I feel I must consider, and I have considered in making my
decision.
As I said, in a previous sentencing of Mr. Qualls, this is a very sad
case. Some facts that are important to my decision are the following: Mr.
Thomas is 19 years old. He’s a young man. He’s embarking on his life.
He just graduated from Miamisburg High School this past June. He has no
other felony convictions. He lives with his fiancee and parents, and they are
expecting their first child. I’m mindful of the risk of sending a young person
to prison. That’s something I have wrestled with in this case, as I did in the
case of Mr. Qualls.
On the other side of the case, the State is requesting a six-year prison
sentence, if I heard correctly, due to the severity of the incident. The victim
is requesting the maximum sentence of eight years. The Defendant, as I
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determined at the trial to the Court, was an active participant in what I
consider to be an ambush. Mr. Schwarz was ambushed by a number o[f]
people, and he was beaten severely. He was knocked to the ground where he
was stomped by [these] attackers. He was beaten to the point that his leg
was broken, which required the surgical insertion of a plate and screws,
which he will carry for the rest of his life. The victim was left by Mr.
Thomas and others laying in a business parking lot. Where he lay for over
25 minutes until an employee of that business, a driver, happened to pull in
the parking lot and see him, and that’s when he was able to get some help.
At his trial Mr. Thomas attempted, in my view, to minimize his
responsibility for the assault. By law the level of this offense results in a
presumption that a prison sentence should be imposed. That’s what the law
tells me. I have received and reviewed Mr. Galen’s excellent sentencing
statement, as well as Mr. Thomas’s letter, and his other letters of support.
And let me say, Mr. Thomas, I was struck by several comments that you
made, and in particular this comment of your letter, “I still have high
expectations for myself, Your Honor. I plan on going back to college and
getting a degree in business management and maybe even open my own
business one day.” I encourage you to follow through on that despite the
sentence that I impose in this case. I think that’s a very laudable goal. You
appear to me, from the materials I reviewed, to be a talented young man.
I’ve got a letter from Mr. Pittroff [phonetic], one of your teachers at
15
Miamisburg High School, who tells me that Chance - - and I’m quoting,
“Chance passed the State mandated sophomore OGT
Ohio Graduation Test, the first time with the highest level of
achievement, advanced. His score was one [of] the highest in
all four of my sophomore classes that year.”
You have talent. You have ambition to do something good with your
life.
The recommendations contained in the presentence investigation are
for - - community control sanctions, as Mr. Galen said. However, I
previously sentenced another defendant in this case, Mr. Qualls, who I
believe had less culpability to a prison term of three years. Wesley Qualls is
serving a three-year sentence, and I think of the three people who have been
before this Court, he is the least culpable. In good conscience I cannot agree
with a recommendation for community control sanctions, given the severity
of the beating. I simply can’t go that route.
Accordingly, in Case Number 2013CR171, the Court imposes a
sentence of four years CRC. * * *
The court further ordered Thomas to “pay restitution to William Schwarz on a
joint-and-several basis with the other individuals convicted of his assault in the amount of
$6,612.17.”
{¶ 9} Thomas asserts two assignments of error herein. His first assigned error is
as follows:
16
THE VERDICT SHOULD BE REVERSED BECAUSE THE TRIAL
COURT ERRED WHEN IT OVERRULED APPELLANT’S MOTION TO
SUPPRESS HIS STATEMENTS WHICH WERE OBTAINED IN
VIOLATION OF HIS RIGHTS GUARANTEED BY THE DUE PROCESS
CLAUSES OF FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS TEN
AND FOURTEEN OF THE CONSTITUTION OF OHIO.
{¶ 10} According to Thomas’ brief, “[a]ll statements made by Mr. Thomas are
inadmissible because Detective Allison conducted custodial interrogations of Mr. Thomas in
violation of the Fifth and Sixth Amendments, and Miranda v. Arizona (1966), 384 U.S. 436,
86 S.Ct. 1602.” Thomas further asserts that the “totality of the circumstances in this case
reveals that there was no effective waiver by Mr. Thomas.” Thomas asserts that he
“experienced compulsion and coercion, which could not possibly render his statement, let
alone a waiver, voluntary.” Thomas further asserts as follows:
Detective Allison knew that Mr. Thomas was a high school student.
It is unclear from a review of [the] transcript of the motion to suppress if or
how Detective Allison knew Mr. Thomas was at least 18 years of age. It is
also unclear whether or not Detective Allison made any attempt to involve
Mr. Thomas’ parents in the interrogation. It is however clear that Mr.
Thomas was removed from class, told he would be interviewed by a
Detective and placed into a conference room to be interrogated. Detective
Allison did not even recall if he ever told Mr. Thomas that he was free to
17
leave at any time. This scenario is to say the least intimidating for most
adults, let alone a high school student.
{¶ 11} As this Court has previously noted:
In regard to a motion to suppress, “ ‘the trial court assumes the role of
the trier of facts and is in the best position to resolve questions of fact and
evaluate the credibility of witnesses.’ ” State v. Hopfer (1996), 112 Ohio
App.3d 521, 548, 679 N.E.2d 321, quoting State v. Venham (1994), 96 Ohio
App.3d 649, 653, 645 N.E.2d 831. The court of appeals must accept the trial
court’s findings of fact if they are supported by competent, credible evidence
in the record. State v. Isaac, Montgomery App. No. 20662,
2005-Ohio-3733, 2005 WL 1707019, citing State v. Retherford (1994), 93
Ohio App.3d 586, 639 N.E.2d 498. Accepting those facts as true, the
appellate court must then determine, as a matter of law and without deference
to the trial court’s legal conclusion, whether the applicable legal standard is
satisfied. Id.
State v. Hoskins, 197 Ohio App.3d 635, 2012-Ohio-25, 968 N.E.2d 544, ¶ 11 (2d Dist.).
{¶ 12} This Court has further previously noted as follows:
“The Fifth Amendment to the United States Constitution and Article
I, Section 10 of the Ohio Constitution guarantee that no person in any
criminal case shall be compelled to be a witness against himself.” State v.
Jackson, 2d Dist. Greene No. 02CA0001, 2002-Ohio-4680, ¶ 19. “A suspect
may waive his constitutional right against self-incrimination, provided that
18
waiver is voluntary. A suspect's decision to waive his privilege against
self-incrimination is made voluntarily absent evidence that his will was
overborne and his capacity for self-determination was critically impaired
because of coercive police conduct.” (Citations omitted). Id. at ¶ 20.
“The issues of whether a confession is voluntary, and whether a
suspect has been subjected to custodial interrogation so as to require Miranda
warnings, are analytically separate issues.” (Citations omitted). Id. at ¶ 21.
“The due process clause continues to require an inquiry, separate from
custody considerations, concerning whether a defendant's will was overborne
by the circumstances surrounding the giving of his confession.” (Citations
omitted). Id. “This due process test takes into consideration the totality of all
the surrounding facts and circumstances, including the characteristics of the
accused and the details of the interrogation.” Id. “Factors to be considered
include the age, mentality, and prior criminal experience of the accused; the
length, intensity and frequency of the interrogation; the existence of physical
deprivation or mistreatment; and the existence of threats or inducements.”
(Citation omitted). Id.
“[A] confession may be involuntary and subject to exclusion if on the
totality of the circumstances the defendant's will was overborne by the
circumstances surrounding the giving of that confession.” (Citation omitted).
Id. at ¶ 22. “If all of the attendant circumstances indicate that the confession
was coerced or compelled, it cannot be used to convict the defendant. That
19
determination depends upon a weighing of the pressure to confess against the
power of resistance of the person confessing.” Id.
State v. Strickland, 2d Dist. Montgomery No. 25545, 2013-Ohio-2768, ¶ 9-11.
{¶ 13} Finally, as this Court has previously noted:
* * * “The decision whether, and to what extent, to credit the testimony of
particular witnesses is within the peculiar competence of the factfinder, who
has seen and heard the witnesses.” State v. Lawson, 2d Dist. Montgomery
No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997); see State v. Mills, 62 Ohio
St.3d 357, 366, 582 N.E.2d 972 (1992) (“At a suppression hearing, the
evaluation of evidence and the credibility of witnesses are issues for the trier
of fact.”).
State v. Perkins, 2d Dist. Miami No. 2011-CA-24, 2012-Ohio-2544, ¶ 13.
{¶ 14} Allison, with 33 years of law enforcement experience, testified that he
carefully explained each of the rights listed on the pre-interview form maintained by the
police department to Thomas, as set forth in the decision of the trial court, and that he
ascertained Thomas’ understanding of each right prior to the interview. The trial court
credited Allison’s testimony regarding the process by which Thomas was Mirandized,
namely in the absence of compulsion and coercion, and we defer to the trial court’s
assessment of credibility. There is nothing in the record to suggest that Thomas, an adult,
was not free to terminate the interview nor that he was prohibited from leaving the
conference room. Allison testified that he did not make promises or issue threats in exchange
for Thomas’ waiver of his rights. Allison testified that Thomas did not appear to be under
20
the influence of alcohol or drugs, and that he understood the purpose of the interview.
Thomas did not request an attorney, exhibit any reluctance to answer questions, ask any
questions himself, or ask to stop the interview. On cross-examination, Allison testified that
Thomas did not deny knowledge of an incident involving Schwarz or exhibit surprise when
Allison told him that he wanted to speak to him about Schwarz. Although Allison could
not recall exactly how he confirmed Thomas’ age, he testified that he did so prior to the
interview, and that Thomas was 18 or 19 at the time. He stated that he initially went to
Thomas’ home and was unable to make contact with anyone there. In the event that any
suspect is under the age of 18, Allison testified that officers “always make a * * *
concentrated effort to contact their parents.”
{¶ 15} Having thoroughly reviewed the record, and deferring to the trial court’s
assessment of credibility, we find that the trial court’s factual findings are supported by
competent, credible evidence in the record, and that the applicable legal standard is satisfied.
Accordingly, Thomas’ first assigned error is overruled.
{¶ 16} Thomas’ second assigned error is as follows:
APPELLANT SHOULD BE REMANDED TO THE TRIAL COURT FOR
SENTENCING AS THE SENTENCE HE RECEIVED IS CONTRARY TO LAW
AND IN VIOLATION OF HIS RIGHTS UNDER THE EIGHTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.
{¶ 17} Thomas asserts as follows:
* * * If the relevant factors indicate anything, it is that a four-year
prison sentence is contrary to law. There are nine (9) potential factors set
21
forth in R.C. 2929.12(B) that are designed to indicate to the Court that the
offender’s conduct is “more serious” than conduct normally constituting the
offense of conviction. Serious physical harm is an element of the offense of
which Mr. Thomas was convicted. At first glance, this factor would seem to
apply while none of the other “more serious” factors apply. However, it is
logically impossible for an element of an offense to also make that conduct
constituting the offense more serious than other conduct normally
constituting the offense. The normal conduct of this offense will always
include serious physical harm. Accordingly, the conduct of Mr. Thomas’
conviction is no more serious than conduct normally constituting the offense.
Contrary to the nine (9) factors that can make offense conduct (sic)
“more serious”, the law only sets forth four (4) factors that would indicate the
offense conduct is “less serious” than conduct normally constituting the
offense. R.C. § 2929.12(C). The fact that Mr. Thomas did not expect to
cause physical harm should be considered under R.C. § 2929.12(C)(3).
Finally, the law sets forth five (5) factors that would indicate
recidivism is likely, and five (5) factors that would indicate recidivism is not
likely. R.C. 2929.12(D) and (E). A court is also obliged to consider any
non-listed relevant factor as well. On balance, nothing the court should have
considered would warrant a four-year prison sentence. In fact, the probation
department recommended Community Control Sanctions as an appropriate
sentence for Mr. Thomas. * * * The probation department made their
22
recommendation of Community Control Sanctions having the benefit of
reviewing the victim impact statement. * * * Additionally, as the Court
indicated, Mr. Thomas was 19 years of age at the time of sentencing. * * * He
had no previous felony convictions. * * * As the Court noted after reviewing
materials for sentencing, Mr. Thomas appeared to be a talented young man
who has ambition to do something with his life.
{¶ 18} Thomas notes that “most appellate courts consider the two-step approach set
forth by the Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124 (2008) to
be no longer applicable to the current sentencing statutes.”
{¶ 19} This Court recently noted as follows:
* * * Pursuant to Kalish, a felony sentence is reviewed using a
two-step process: the first step involves determining whether the sentence is
contrary to law, i.e. whether the trial court complied with all applicable rules
and statutes, and the second step involves determining whether the trial court
abused its discretion. A panel of this court recently decided State v.
Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), which held that
Kalish’s two-step approach no longer applies to appellate review of felony
sentences and adopted the standard of review found in R.C. 2953.08(G)(2).
Rodeffer at ¶ 29.
Under this statute, an appellate court may increase, reduce, or modify
a sentence, or it may vacate the sentence and remand for resentencing, only, if
it “clearly and convincingly” finds either (1) that the record does not support
23
certain specified findings or (2) that the sentence imposed is contrary to law.
Rodeffer stated that “[a]lthough Kalish no longer provides the framework for
reviewing felony sentences, it does provide * * * adequate guidance for
determining whether a sentence is clearly and convincingly contrary to law. *
* * According to Kalish, a sentence is not contrary to law when the trial court
imposes a sentence within the statutory range, after expressly stating that it
had considered the purposes and principles of sentencing set forth in R.C.
2929.11, as well as the factors in R.C. 2929.12." (Citations omitted). Id. at ¶
32.
State v. Green, 2d Dist. Clark No. 2012 CA 64, 2014-Ohio-2305, ¶ 7-8.
{¶ 20} R.C. 2929.11 provides as follows:
(A) A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources. To achieve those purposes,
the sentencing court shall consider the need for incapacitating the offender,
rehabilitating the offender, and making restitution to the victim of the offense,
the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth in division
24
(A) of this section, commensurate with and not demeaning to the seriousness
of the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.
(C) A court that imposes a sentence upon an offender for a felony
shall not base the sentence upon the race, ethnic background, gender, or
religion of the offender.
{¶ 21} As this Court noted in State v. Carlton, 2d Dist. Montgomery No. 26086,
2014-Ohio-3835, ¶ 11:
R.C. 2929.12(B) sets forth certain factors that, along with “any other
relevant factors,” a trial court “shall consider * * * as indicating that the
offender’s conduct is more serious than conduct normally constituting the
offense.” Division (C) of that same section sets forth certain factors that,
along with “any other relevant factor,” a trial court “shall consider * * * as
indicating that the offender’s conduct is less serious than conduct normally
constituting the offense.” Division (D) sets forth certain factors that, along
with “any other relevant factors,” a trial court “shall consider * * * as factors
indicating that the offender is likely to commit future crimes.” Finally,
Division (E) sets forth certain factors that, along with “any other relevant
factors,” a trial court “shall consider * * * as factors indicating that the
offender is not likely to commit future crimes.”
{¶ 22} We initially note that Thomas’ sentence is within the statutory range for a
felony of the second degree; R.C. 2929.14(A)(2) provides that “[f]or a felony of the second
25
degree, the prison term shall be two, three, four, five, six, seven, or eight years.” We further
note that neither in the trial court’s remarks at the sentencing hearing, nor in Thomas’
judgment entry of conviction, is there any express indication that the trial court considered
the purposes and principles of sentencing, or the seriousness and recidivism factors. R.C.
2929.11 and R.C. 2929.12 do not require findings on the record, however, and in Carlton,
we noted that this Court has “held on more than one occasion that a trial court’s
consideration of the statutory sentencing factors may be presumed from a silent record.”
Id., ¶ 18.
{¶ 23} R.C. 2903.11 provides: “(A) No person shall knowingly do either of the
following: (1) Cause serious physical harm to another * * *.” R.C. 2929.12(B)(2) lists the
following factor as indicative that an offender’s conduct is more serious than conduct
normally constituting the offense: “The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.” The parties stipulated that
Schwarz endured serious physical harm. We cannot agree with Thomas’ assertion that his
conduct in committing felonious assault is “no more serious than conduct normally
constituting the offense” simply because serious physical harm is an element of R.C.
2903.11(A)(1) and also one factor indicating that an offender’s conduct is more serious than
conduct normally constituting the offense. It was significant to the trial court at sentencing
that Thomas, in complicity with two others, actively participated in ambushing Schwarz,
who was severely beaten. We note that Schwarz testified at trial that in the course of the
attack, Thomas hit him four or five times from behind with a closed fist. When he fell to
the ground, Schwarz testified that the three men “[h]it me all over my body, my back, my
26
face, and I could feel them jumping on my leg.” Schwarz stated that he was in
“[e]xcruciating pain” during the attack. It was also significant to the court that Schwarz’s
attackers left him alone in the parking lot after the attack. The court awarded restitution to
Schwarz in the amount of $6,612.17 and noted that his condition after the incident involves
permanent disfigurement that required “the surgical insertion of a plate and screws, which he
will carry for the rest of his life.” It was also significant to the court that at his trial, “Mr.
Thomas attempted, in my view, to minimize his responsibility for the assault.” While
Thomas directs our attention to the factor set forth in R.C. 2929.12(C)(3), namely that “the
offender did not cause or expect to cause physical harm,” Thomas stipulated that he caused
serious physical harm, and Thomas’ active participation in the assault, as well as his conduct
in leaving the scene while Schwarz lay severely injured in the parking lot, belie his assertion
that he did not expect to cause physical harm.
{¶ 24} In addition to the above factors, the record reflects that in sentencing
Thomas, the court considered the “risk of sending a young person to prison.” The court
gave thoughtful consideration to correspondence from Thomas, in which he asserted that he
planned to continue his education and “open my own business one day,” as well as
correspondence from Thomas’ high school teacher in support of Thomas. The court noted
that Thomas did not have a felony conviction in his record. Finally, while the Adult
Probation Department recommended community control sanctions, the trial court correctly
noted that Thomas’ offense “results in a presumption that a prison sentence should be
imposed,” consistent with R.C. 2929.13(D)(1), which provides that “* * * for a felony of
the * * * second degree, * * * it is presumed that a prison term is necessary in order to
27
comply with the purposes and principles of sentencing under section 2929.11 of the Revised
Code.”
{¶ 25} For the foregoing reasons, we find nothing in the record herein to rebut the
presumption that the trial court considered the purposes and principles of sentencing, and the
seriousness and recidivism factors, in sentencing Thomas. In other words, Thomas’ sentence
is supported by the record, is not contrary to law, and does not demonstrate an abuse of
discretion. Accordingly, Thomas’ second assigned error is overruled, and the judgment of
the trial court is affirmed.
..........
FROELICH, P.J. and WELBAUM, J., concur.
Copies mailed to:
Tiffany C. Allen
Lori R. Cicero
Hon. Michael W. Krumholtz