State v. Ernest

[Cite as State v. Ernest, 2015-Ohio-2983.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2014-L-108
- vs - :

CHAUNTON C. ERNEST, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000082.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, Ohio 44077 (For
Defendant-Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} Appellant, Chaunton C. Ernest, appeals from the September 30, 2014

judgment of the Lake County Court of Common Pleas, sentencing him for attempted

murder and other related crimes. On appeal, appellant argues his Crim.R. 29(A) motion

for acquittal should have been granted; his convictions are against the manifest weight
of the evidence; and his 11-year term of imprisonment is excessive. For the reasons

that follow, we affirm.

{¶2} On March 26, 2014, appellant was indicted by the Lake County Grand

Jury on ten counts: count one, attempted murder, a felony of the first degree, in violation

of R.C. 2923.02, with a firearm specification; count two, felonious assault, a felony of

the second degree, in violation of R.C. 2903.11(A)(2); count three, obstructing justice, a

felony of the third degree, in violation of R.C. 2921.32(A)(2); count four, complicity to

felonious assault, a felony of the second degree, in violation of R.C. 2923.03(A)(2), with

a firearm specification; counts five and seven, improperly handling firearms in a motor

vehicle, felonies of the fourth degree, in violation of R.C. 2923.16(B); count six, carrying

concealed weapons, a felony of the fourth degree, in violation of R.C. 2923.12(A)(1);

count eight, improperly discharging a firearm at or into a habitation or school safety

zone, a felony of the second degree, in violation of R.C. 2923.161(A)(1), with a firearm

specification; count nine, felonious assault, a felony of the second degree, in violation of

R.C. 2903.11(A)(2), with a firearm specification; and count ten, engaging in a pattern of

corrupt activity, a felony of the first degree, in violation of R.C. 2923.32(A)(1).

{¶3} Appellant was appointed counsel. He filed a waiver of the right to be

present at his arraignment and a waiver of his right to a speedy trial. On March 28,

2014, the trial court entered a not guilty plea to all charges on his behalf.

{¶4} Prior to trial, appellee, the state of Ohio, moved to dismiss counts eight,

nine, and ten. The trial court granted the state’s motion and dismissed those three

counts.

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 {¶5} A bench trial commenced on August 26, 2014. At trial, the state

presented 20 witnesses and over 65 exhibits. Appellant testified on his own behalf but

presented no additional witnesses.

{¶6} Collectively, the testimony presented reveals appellant’s involvement in

several criminal incidents that spanned a two-day time period in January 2014 in Lake

and Ashtabula counties.1 On January 11, 2014, appellant, his Uncle Ginelli Ernest

(“Ginelli”), and Mike Williams (“Williams”) were together at appellant’s grandmother’s

home at Edgewood Club Apartments in Painesville, Lake County, Ohio. The apartment

complex is monitored by video surveillance. The three men left the complex and got

into a red Toyota Camry. Appellant was in the driver’s seat, Ginelli in the front

passenger seat, and Williams in the back seat.

{¶7} At that point, they saw Aaron Thomas (“Thomas”) walking on Elevator

Street. Ginelli told appellant to pull alongside Thomas so that Ginelli could confront

Thomas regarding an incident which occurred the previous day where Thomas allegedly

struck Ginelli’s sister. Both appellant and Ginelli were upset with Thomas for getting

into a fight with their family member.

{¶8} Following a brief conversation, Thomas began walking away. Ginelli was

apparently not finished speaking with Thomas and he ordered appellant to back up

alongside Thomas again. At that time, Williams stuck a .40 caliber semi-automatic rifle

out of the backseat window which caused Thomas to flee. Ginelli and Williams jumped

out of the car and chased after Thomas on foot while appellant drove after Thomas at a

high rate of speed. After pulling in front of Thomas, appellant stopped the car and got

1. The main facts are presented here. Additional facts will be addressed under appellant’s first
assignment of error which involves a sufficiency of the evidence argument.

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out. At that point, Williams began firing gunshots at Thomas. Some of the bullets

ended up hitting a nearby Ford Explorer owned by Carol Ann Eder.

{¶9} Thereafter, Ginelli and Williams returned to the Camry and appellant drove

back to Edgewood Club Apartments. Appellant allowed Williams back into his

grandmother’s apartment. Appellant stayed at the entrance of the apartment complex

until police arrived in response to 9-1-1 calls made regarding the shooting. Appellant

eventually admitted to a police officer that he had driven the vehicle. Appellant agreed

to go to the station for questioning.

{¶10} During an interview, appellant provided authorities with details of the

shooting. Appellant claimed he did not know Williams had a gun in the car. Appellant

also claimed he did not know the location of Williams or the gun at the time of the

interview.

{¶11} The next day, January 12, 2014, appellant was driving an SUV in

Ashtabula County. Ginelli was the front seat passenger and Williams was the back seat

passenger. A police officer pulled the SUV over due to a malfunctioning rear license

plate light. After approaching the vehicle with the three men and in light of the previous

day’s shooting in Lake County, the officer radioed for back up assistance. Williams

immediately fled the SUV. Appellant and Ginelli were placed in separate patrol cars

while the SUV was searched. A .40 caliber semi-automatic rifle, later identified as the

same rifle used in the January 11, 2014 shooting, was discovered on the rear floor of

the SUV. The rifle measured nearly three-feet long. Forensic testing later confirmed

that the seven spent cartridges recovered from the crime scene were fired from the rifle

in question.

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 {¶12} Defense counsel moved for acquittal, pursuant to Crim.R. 29(A), at the

close of the state’s case and after all the evidence, which was denied by the trial court.

{¶13} Following trial, the court returned its verdict and found appellant guilty as

charged on counts one and three through seven. The court found appellant not guilty

on count two. The court referred the matter to the Adult Probation Department for a

pre-sentence investigation and report, a victim impact statement, and DNA testing.

Sentencing was deferred.

{¶14} Appellant filed a motion for new trial pursuant to Crim.R. 33(A)(4). The

state opposed the motion. The trial court denied appellant’s motion on September 23,

2014.

{¶15} On September 30, 2014, the trial court merged count four into count one

and count seven into count six. The court sentenced appellant to seven years in prison

on count one; nine months on count three; 12 months on count five; and 12 months on

count six. The sentences imposed in counts one, three, and five were ordered to be

served concurrent with each other and consecutive to the sentence imposed in count

six. Appellant was ordered to serve an additional mandatory prison term of three years

for the firearm specification, prior to and consecutive to the foregoing prison term, for a

total of 11 years. Appellant received 246 days of credit for time already served. The

court further notified appellant that post-release is mandatory for five years. Appellant

filed a timely appeal and raises the following three assignments of error for our review:

{¶16} “[1.] The trial court erred to the prejudice of the defendant-appellant in

denying his motion for acquittal made pursuant to Crim.R. 29(A).

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 {¶17} “[2.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.

{¶18} “[3.] The trial court erred by sentencing the defendant-appellant to an

excessive, consecutive, eleven-year term of imprisonment.”

{¶19} In his first assignment of error, appellant argues the trial court erred in

denying his Crim.R. 29(A) motion for acquittal on all charges.

{¶20} With regard to sufficiency, in State v. Bridgeman, 55 Ohio St.2d 261

(1978), the Supreme Court of Ohio established the test for determining whether a

Crim.R. 29 motion for acquittal is properly denied. The Court stated that “[p]ursuant to

Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is

such that reasonable minds can reach different conclusions as to whether each material

element of a crime has been proved beyond a reasonable doubt.” Id. at syllabus.

“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the

sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull

Nos. 2003-T-0166 and 2003-T-0167, 2004-Ohio-6688, ¶18.

{¶21} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994

Ohio App. LEXIS 5862, *13-14 (Dec. 23, 1994):

{¶22} “‘Sufficiency’ challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the [trier of fact], while

‘manifest weight’ contests the believability of the evidence presented.

{¶23} “‘“ * * * The test (for sufficiency of the evidence) is whether after viewing

the probative evidence and the inference[s] drawn therefrom in the light most favorable

to the prosecution, any rational trier of fact could have found all of the elements of the

6
offense beyond a reasonable doubt. The claim of insufficient evidence invokes an

inquiry about due process. It raises a question of law, the resolution of which does not

allow the court to weigh the evidence.”’

{¶24} “In other words, the standard to be applied on a question concerning

sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’

‘(a) reviewing court (should) not reverse a [guilty] verdict where there is substantial

evidence upon which the [trier of fact] could reasonably conclude that all of the

elements of an offense have been proven beyond a reasonable doubt.’” (Emphasis

sic.) (Citations omitted.)

{¶25} “[A] reviewing court must look to the evidence presented * * * to assess

whether the state offered evidence on each statutory element of the offense, so that a

rational trier of fact may infer that the offense was committed beyond a reasonable

doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 Ohio App. LEXIS 3333, *8

(July 16, 1999). The evidence is to be viewed in a light most favorable to the

prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. Further, the verdict will not be disturbed on appeal

unless the reviewing court finds that reasonable minds could not have arrived at the

conclusion reached by the trier of fact. State v. Dennis, 79 Ohio St.3d 421, 430 (1997).

{¶26} “[C]ircumstantial evidence and direct evidence inherently possess

the same probative value.” State v. Fasline, 11th Dist. Trumbull No. 2014-T-0004,

2015-Ohio-715, ¶39, citing State v. Biros, 78 Ohio St.3d 426, 447 (1997), citing Jenks,

supra, paragraph one of the syllabus.

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 {¶27} In this case, appellant challenges his convictions on all counts: count one

(attempted murder); count three (obstructing justice); count four (complicity to felonious

assault); counts five and seven (improperly handling firearms in a motor vehicle); and

count six (carrying concealed weapons). Upon review, we find sufficient evidence to

support convictions on all counts. We note again that the trial court merged count four,

with a firearm specification, into count one. The trial court also merged count seven into

count six. Thus, this court will specifically address the evidence presented supporting

appellant’s convictions on counts one, three, five, and six.

{¶28} Appellant’s convictions and the evidence presented are viewed under a

complicity theory. Before finding appellant guilty, the trial court was to consider whether

appellant “aided or abetted” another in the commission of the offenses. “‘Aided or

abetted’ means supported, assisted, encouraged, cooperated with, advised, or incited.”

OJI 523.03; see also State v. Sims, 11th Dist. Lake No. 2001-L-081, 2003-Ohio-324,

¶44.

{¶29} Appellant correctly notes that the mere presence of an individual at the

scene of a crime does not prove that someone is an accomplice. “Rather, the state

must establish that the offender ‘took some affirmative action to assist, encourage, or

participate in the crime by some act, deed, word, or gesture.’” Sims, supra, at ¶44,

quoting State v. Mootispaw, 110 Ohio App.3d 566, 570 (4th Dist.1996). “‘[T]he state

may demonstrate a person’s aiding and abetting of another in the commission of a

crime through both direct and circumstantial evidence.’” Sims at ¶45, quoting

Mootispaw at 570. “‘“Criminal intent may be inferred from presence, companionship

8
and conduct before and after the offense is committed.”’” Id., quoting State v. Pruett, 28

Ohio App.2d 29, 34 (4th Dist.1971).

{¶30} Appellant does not dispute that he was present at the scene of the crime.

However, appellant claims he was unaware of Williams’ intent and had no knowledge

there was a rifle in the car.

{¶31} “A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when the person is

aware that such circumstances probably exist.” R.C. 2901.22(B). “[K]nowledge can be

ascertained from the surrounding facts and circumstances.” State v. Lopshire, 11th

Dist. Portage No. 2005-P-0037, 2006-Ohio-3215, ¶31. “Even when a defendant

testifies as to his lack of knowledge, a trier of fact may disbelieve his testimony and

examine the surrounding facts and circumstances to determine whether the defendant

possessed ‘knowledge.’” State v. Chambers, 4th Dist. Adams No. 10CA902, 2011-

Ohio-4352, ¶36.

{¶32} Under count one, in order to have found appellant guilty of attempted

murder, the state was required to prove that appellant aided and abetted his

codefendants (Ginelli and/or Williams) by knowingly engaging in conduct that, if

successful, would result in the death of another (Thomas) as a proximate result of

committing felonious assault. See R.C. 2923.02(A) (attempt); R.C. 2923.03(A)

(complicity); R.C. 2903.02(B) (murder); R.C. 2903.11(A)(2) (felonious assault).

{¶33} The surrounding facts and circumstances in this case support the state’s

position and the trial court’s conclusion that appellant aided and abetted Ginelli and

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Williams in attempting to cause Thomas’ death by attempting to inflict physical harm by

means of a deadly weapon.

{¶34} Appellant admitted he and Ginelli were upset with Thomas for getting into

a fight with their family member. The weapon at issue was a .40 caliber semi-automatic

rifle that measured nearly three-feet long. Appellant was present when the rifle was

purchased. Appellant observed Williams posing with the rifle for photos immediately

prior to the shooting. Appellant also observed Williams “walking funny” when they went

to the car.

{¶35} When appellant, Ginelli, and Williams saw Thomas around the apartment

complex, appellant pulled the car alongside him. Words were exchanged and Williams

stuck the rifle out of the backseat window which caused Thomas to flee. The exchange

was captured on video surveillance.

{¶36} Ginelli and Williams jumped out of the car and chased after Thomas on

foot while appellant drove after Thomas at a high rate of speed. An eyewitness, Joseph

Forristal (“Forristal”), testified for the state that “[a]s soon as he [Thomas] started

running backwards, the red car came racing towards him looking like it was going to try

and run him down.” Forristal stated that he “was really afraid it [the vehicle driven by

appellant] was trying to kill him [Thomas] because it was – I mean it just aimed right

towards him.”

{¶37} After pulling in front of Thomas, appellant stopped his car and got out. At

that point, Williams began firing gunshots at Thomas. Thereafter, appellant, Ginelli, and

Williams drove back to Edgewood Club Apartments. Appellant allowed Williams back

into his grandmother’s apartment. Appellant stayed at the entrance of the apartment

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complex until police arrived. A resident at the apartment, Cheryl Ann Thompson,

testified for the state that she saw Thomas running and heard him say “‘[t]hey’re trying

to kill me.’” Another witness in the vicinity, Larry Luckey, testified for the state that he

saw Thomas running and heard him say “‘[t]hey’re trying to shoot me.’”

{¶38} In addition, forensic testing confirmed that the seven spent cartridges

recovered from the crime scene were fired from the .40 caliber semi-automatic rifle in

question. Officer Roberto Soto testified for the state that a gun residue sample was

conducted from the rifle and from appellant’s hands. Donna Schwesinger, a forensic

scientist with BCI, testified for the state that “‘[p]articles highly indicative of gunshot

primer residue were identified on the samples from Chaunton C. Ernest [appellant].’”

{¶39} The direct and circumstantial evidence reveals appellant aided and

abetted Ginelli and Williams in an attempt to murder Thomas with a deadly weapon.

Appellant’s presence, companionship, and conduct before and after the offense was

committed renders him an aider and abettor. Accordingly, the surrounding facts and

circumstances establish a finding that appellant possessed the requisite knowledge to

support a conviction for attempted murder under a theory of complicity under count one.

{¶40} Under count three, in order to have found appellant guilty of obstructing

justice, the state was required to prove that appellant “with purpose to hinder the

discovery, apprehension, prosecution, conviction, or punishment of another for crime or

to assist another to benefit from the commission of a crime, * * * [p]rovide[ed] the other

person with * * * other means of avoiding discovery or apprehension.” R.C.

2921.32(A)(2). “A person acts purposely when it is the person’s specific intention to

cause a certain result, or, when the gist of the offense is a prohibition against conduct of

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a certain nature, regardless of what the offender intends to accomplish thereby, it is the

offender’s specific intention to engage in conduct of that nature.” R.C. 2901.22(A).

{¶41} After the shooting, video surveillance from the apartment complex

revealed the following: appellant parked the vehicle; appellant and Williams went to the

door of the building; appellant punched a code into the key pad to let himself and

Williams inside; appellant escorted Williams into his grandmother’s apartment and let

him inside; appellant then acted as a “look out” by talking on his phone, walking the

parking lot of the apartment complex, and standing in the vestibule area of the building;

after police arrived, appellant initially denied having any knowledge of the shooting; and

appellant never told police that he let the shooter (Williams) inside his grandmother’s

apartment.

{¶42} During his interview at the station, appellant initially denied knowing the

name of the shooter. Appellant indicated to the police that he had told “the dude” to

leave the apartment and that he complied. However, video surveillance did not show

Williams leaving the apartment building until hours after the shooting. The surrounding

facts and circumstances establish a finding that appellant possessed the requisite

purpose to support a conviction for obstructing justice under count three.

{¶43} Under count five, in order to have found appellant guilty of improperly

handling firearms in a motor vehicle, the state was required to prove that appellant

“knowingly transport[ed] or [had] a loaded firearm in a motor vehicle in such a manner

that the firearm [was] accessible to the operator or any passenger without leaving the

vehicle.” R.C. 2923.16(B).

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 {¶44} Appellant admitted to being aware that the .40 caliber semi-automatic rifle

had been purchased and placed in the trunk of the car on the night prior to the incident

at issue. In fact, an eyewitness, Johnny Rivers, saw appellant when the rifle was

purchased and placed in the trunk. The following day, appellant, Ginelli, and Williams

drove in the vehicle from Ashtabula to Painesville. Video surveillance of the apartment

complex showed the three men entering and exiting, with Williams walking with a stiff

leg and holding his hand at his side.

{¶45} Just prior to the shooting, appellant admitted to being present inside his

grandmother’s apartment with Ginelli and Williams when they took photos with the rifle.

A neighbor, Eliza Villanueva, testified for the state, confirming that appellant was

present when Williams pulled out the rifle and took a picture with it. Alecia Clinard knew

all three men and testified for the state that she saw the photo of Williams with the rifle

posted on “a friend’s” (appellant’s) Instagram account.

{¶46} During his interview with police, appellant admitted to wondering why

Williams was “walking funny.” Appellant also admitted to knowing Williams as “a

shooter” and that Williams “don’t play no games.” The surrounding facts and

circumstances establish a finding that appellant possessed the requisite knowledge to

support a conviction for improperly handling firearms in a motor vehicle under count

five.

{¶47} Under count six, in order to have found appellant guilty of carrying

concealed weapons, the state was required to prove that appellant “knowingly carr[ied]

or [had], concealed on the person’s person or concealed ready at hand * * * [a] deadly

13
weapon other than a handgun,” to wit: a .40 caliber semi-automatic rifle. R.C.

2923.12(A)(1).

{¶48} As addressed, it is implausible to believe appellant’s claims that he was

unaware that a nearly three-foot long rifle, which he had been in the presence of the day

before the shooting with the same individuals, was inside of the vehicle he was driving.

Officer Wayne Howell testified for the state that appellant told him that Williams had the

loaded rifle in the back seat. The rifle was found on the floor of the back seat where

Williams’ feet would have been. Also, Lieutenant Chad Brown, who collected the rifle

from the vehicle, testified for the state that the rifle was “ready at hand for anybody in

the car.” Again, appellant was the driver of the vehicle. The surrounding facts and

circumstances establish a finding that appellant possessed the requisite knowledge to

support a conviction for carrying concealed weapons under count six.

{¶49} Pursuant to Schlee, supra, the state presented sufficient evidence upon

which the trier of fact could reasonably conclude beyond a reasonable doubt that all the

elements were proven. Thus, the trial court did not err in overruling appellant’s Crim.R.

29 motion.

{¶50} Appellant’s first assignment of error is without merit.

{¶51} In his second assignment of error, appellant contends the guilty verdict is

against the manifest weight of the evidence.

{¶52} This court stated in Schlee, supra, at *14-15:

{¶53} “‘[M]anifest weight’ requires a review of the weight of the evidence

presented, not whether the state has offered sufficient evidence on each element of the

offense.

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 {¶54} “‘In determining whether the verdict was against the manifest weight of the

evidence, “(* * *) the court reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. (* * *)”’ (Citations omitted.) * * *” (Emphasis sic.)

{¶55} A judgment of a trial court should be reversed as being against the

manifest weight of the evidence “‘only in the exceptional case in which the evidence

weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 387

(1997).

{¶56} With respect to the manifest weight of the evidence, the trier of fact is in

the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St.2d

230 (1967), paragraph one of the syllabus.

{¶57} In reviewing and weighing all the evidence presented, we determine that

a trier of fact could reasonably conclude appellant was guilty of the charged offenses.

The trier of fact heard all of the evidence presented by the state and its 20 witnesses, as

addressed above, establishing appellant’s guilt for all the crimes committed. The trier of

fact also heard the defense’s theory, and from appellant himself, who alleged having no

knowledge of anything that was going on and merely being in the wrong place at the

wrong time. The trier of fact apparently placed great weight on and chose to believe the

state’s witnesses as opposed to appellant. DeHass, supra, at paragraph one of the

syllabus. We cannot say the trier of fact clearly lost its way in finding appellant guilty of

the crimes at issue. Schlee, supra, at *14-15; Thompkins, supra, at 387.

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 {¶58} Appellant’s second assignment of error is without merit.

{¶59} In his third assignment of error, appellant alleges the trial court erred in

sentencing him to an excessive, consecutive, 11-year term of imprisonment. Appellant

asserts the trial court failed to give adequate consideration to the R.C. 2929.12 factors.

{¶60} R.C. 2953.08(G) and the clear and convincing standard should be applied

to determine whether a felony sentence is contrary to law. See, e.g., State v. Venes,

8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶10; State v. Drobny, 8th Dist.

Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2; State v. Kinstle, 3rd Dist. Allen No. 1-

11-45, 2012-Ohio-5952, ¶47; State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-

Ohio-5899, ¶52.

{¶61} In reviewing a felony sentence, R.C. 2953.08(G) provides:

{¶62} “(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.

{¶63} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

{¶64} “(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, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

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 {¶65} “(b) That the sentence is otherwise contrary to law.”

{¶66} Although trial courts have full discretion to impose any term of

imprisonment within the statutory range, they must consider the sentencing purposes in

R.C. 2929.11 and the guidelines contained in R.C. 2929.12.

{¶67} Under H.B. 86, pursuant to the principles and purposes of sentencing,

R.C. 2929.11 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 using the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.” R.C.

2929.11(A). (Emphasis added.) Thus, the legislature has given us the tools as well as

a mandate to address the issues of keeping dangerous criminals off the street, while

balancing Ohio’s financial deficits and an already overcrowded prison system.

{¶68} The guidelines contained in R.C. 2929.12, specifically at (E), state:

{¶69} “(E) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating that the

offender is not likely to commit future crimes:

{¶70} “(1) Prior to committing the offense, the offender had not been adjudicated

a delinquent child.

{¶71} “(2) Prior to committing the offense, the offender had not been convicted

of or pleaded guilty to a criminal offense.

{¶72} “(3) Prior to committing the offense, the offender had led a law-abiding life

for a significant number of years.

{¶73} “(4) The offense was committed under circumstances not likely to recur.

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 {¶74} “(5) The offender shows genuine remorse for the offense.”2

{¶75} This is not a case where the trial court failed to merge allied offenses of

similar import. Rather, as stated, appellant was found guilty of the following: count one,

attempted murder, a felony of the first degree, in violation of R.C. 2923.02, with a

firearm specification; count three, obstructing justice, a felony of the third degree, in

violation of R.C. 2921.32(A)(2); count four, complicity to felonious assault, a felony of

the second degree, in violation of R.C. 2923.03(A)(2), with a firearm specification;

counts five and seven, improperly handling firearms in a motor vehicle, felonies of the

fourth degree, in violation of R.C. 2923.16(B); and count six, carrying concealed

weapons, a felony of the fourth degree, in violation of R.C. 2923.12(A)(1). The trial

court found the offenses were committed with the same animus and were allied

offenses of similar import, pursuant to R.C. 2941.25. Thus, the court merged count

four, with a firearm specification, into count one. The court also merged count seven

into count six.

{¶76} This is also not a case where the defendant received the maximum

sentence. Specifically, appellant’s sentence of seven years in prison on count one is

within the statutory range. See R.C. 2929.14(A)(1) (“[f]or a felony of the first degree, the

prison term shall be three, four, five, six, seven, eight, nine, ten, or eleven years.”)

Appellant’s sentence of nine months in prison on count three is within the statutory

range. See R.C. 2929.14(A)(3)(b) (“[f]or a felony of the third degree * * * the prison term

shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”) In addition,

appellant’s sentences of 12 months in prison on counts five and six are within the

statutory ranges. See R.C. 2929.14(A)(4) (“[f]or a felony of the fourth degree, the prison

2. See R.C. 2929.12(A)-(E) (for a complete list of all factors).

18
term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,

sixteen, seventeen, or eighteen months.”)

{¶77} At the sentencing hearing, the trial court gave careful and substantial

deliberation to the relevant statutory considerations. Specifically, the trial judge stated

the following:

{¶78} “Well, this Court did review the presentence report and investigation that

was completed. I’ve considered the particular facts and circumstances of the offenses

involved here, the nature of the offenses and of the Defendant’s participation; his role in

committing these offenses. Obviously it was a bench trial. I sat through and listened to

all of the evidence. I am very familiar with what occurred.

{¶79} “I’ve taken into consideration what has been said here in open court by

Mr. Hentemann on behalf of his client. The Defendant himself was afforded an

opportunity to address the Court, chose not to make a statement, but he was given that

chance. Taken into consideration the prosecutor’s comments, recommendation being

made by the State of Ohio. As well as several family members that were present today

and spoke. I also did receive, in addition to the folks that are here today that made

statements, but several letters sent to me through email from family members,

acquaintances that couldn’t be here today from out of state. I’ve read those. I’ve taken

those into consideration in support of Mr. Ernest.

{¶80} “This is all being considered in light of the purposes and principles in

felony sentencing which are set forth in 2929.11 of the Ohio Revised Code.

{¶81} “As for the factors in 2929.12 that I have to consider in all felony cases,

the Court finds that the Defendant did act as a part of organized criminal activity in

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committing these offenses and that there was a firearm involved in the commission of

these offenses, which it’s not necessary to have a firearm involved to commit attempted

murder, but it was used in this case. That makes the conduct more serious.

{¶82} “As for factors indicating the conduct was less serious, the Court does

note that the Defendant was not the principal offender in the commission of at least the

attempted murder. In any of the offenses - - well, the attempted murder. The State

proceeded on an aiding and abetting theory and that’s the basis for the Court’s finding

of the Defendant’s guilt.

{¶83} “As for factors indicating recidivism is more likely, the Court finds the

Defendant does have a history of juvenile delinquency adjudications. He’s only twenty-

one years old now. Just turned twenty-one. Was twenty at the time this was

committed. So not much of an adult life. But as a juvenile, he does have juvenile

delinquency adjudications, several. For a period of, from 2006 if my memory serves me

correctly. Starting in 2006 when he was in and out of juvenile court until 2011. While

the offenses aren’t – he has a couple felony offenses that he – assault offenses and he

was adjudicated as a delinquent child in juvenile court. But what’s even more alarming

or disturbing is the fact that, by my count, there is at least fourteen probation violations

that he had over the years that he was a minor. He started in juvenile court when he

was thirteen. There were fourteen probation violations over a period of time that he was

a minor for not being able to follow the rules and what was requested or what was

ordered of him.

{¶84} “The Court further finds there is no genuine remorse on behalf of the

Defendant for his involvement in these incidents. Completely denies having any

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knowledge of anything that was going on. Simply claims that he was in the wrong place

at the wrong time. That’s just not what the facts bore out. He may not have been the

principal offender, and I recognize that and indicated that, but he was not an innocent

bystander being at the wrong place at the wrong time.

{¶85} “* * *

{¶86} “You know, Mr. Ernest, all long you’ve indicated that you didn’t know what

was going on and you weren’t the main person here. Being in the wrong place at the

wrong time. That you didn’t aid and [a]bet. Well, that’s not true. When you guys

backed up the car towards him, the two other guys jumped out, you could have stayed

right there. You didn’t have to do anything more. But what you did then was take off

after Mr. Thomas as he was running down the street, pull in front of him and cut him off

as he was being shot at to cut his path, to slow him down. You may not have been the

principal offender, but you were involved. You participated. You helped facilitate the

attempt to gun Aaron Thomas down. You knew Williams had a gun, a forty-caliber rifle,

a semiautomatic rifle. Your claim that you didn’t know he had it is – it’s not believable.

He’s posing with pictures of the gun in the apartment right before you guys leave out

there, that you’re posting on Instagram. And your (sic) claiming you didn’t know he had

a gun is just ridiculous.

{¶87} “And while you may not have set out that day to cause any problems, you

know Michael is coming in that car with you with that forty-caliber semiautomatic rifle.

And while he may not have participated in this trial and he may not be here, you and

your cohorts, turned this into the wild, wild west on the side streets of Painesville that

afternoon and put many individuals in harm’s way. And that can’t be allowed.”

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 {¶88} Furthermore, the trial court stated the following in its sentencing entry:

{¶89} “The Court has also considered the record, oral statements, written

statements in support of the Defendant, the pre-sentence report submitted by the Lake

County Adult Probation Department of the Court of Common Pleas, as well as the

principles and purposes of sentencing under R.C. 2929.11, and has balanced the

seriousness and recidivism factors under R.C. 2929.12.

{¶90} “In considering the foregoing, and for the reasons stated in the record, this

Court finds that a prison sentence is consistent with the purposes and principles of

sentencing set forth in R.C. 2929.11 and that Defendant is not amenable to an available

community control sanction.

{¶91} “The Court finds that Defendant was afforded all rights pursuant to Crim.R.

32 and was given the opportunity to speak before judgment and sentence was

pronounced against him.

{¶92} “* * *

{¶93} “The Court has further notified the Defendant, that post release control is

mandatory in this case for 5 years, as well as the consequences for violating conditions

of post release control imposed by the Parole Board under Revised Code section

2967.28.”

{¶94} Thus, the record reflects the trial court gave due deliberation to the

relevant statutory considerations. The court considered the purposes and principles of

felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism

factors under R.C. 2929.12. The court merged allied offenses of similar import. The

court sentenced appellant within the statutory ranges under R.C. 2929.14(A). Further,

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the record reveals the court properly advised appellant regarding post-release control.

Therefore, the trial court complied with all applicable rules and statutes and, as a result,

appellant’s sentence is not clearly and convincingly contrary to law.

{¶95} Appellant’s third assignment of error is without merit.

{¶96} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Lake County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

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