[Cite as State v. Hall, 2017-Ohio-592.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15CA112
EDWARD A. HALL, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2015CR0535
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 13, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE JEFFREY P. UHRICH
Prosecuting Attorney Law Office of Jeffrey P. Uhrich
Richland County, Ohio P.O. Box 1977
Westerville, Ohio 43086
By: DANIEL M. ROGERS
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA112 2
Hoffman, J.
{¶1} Defendant-appellant Edward Hall appeals his sentence entered by the
Richland County Court of Common Pleas, on one count of felonious assault, two counts
of public indecency with a minor victim, one count of public indecency with an adult victim,
and one count of possession of heroin, after the trial court accepted his guilty pleas.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On July 10, 2015, the Richland County Grand Jury indicted Appellant on
one count of felonious assault, in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony
of the second degree; two counts importuning, in violation of R.C. 2907.07(A) and (F)(2),
felonies of the third degree; one count of public indecency, in violation of R.C.
2907.09(A)(1) and (C)(2), a misdemeanor of the fourth degree; one count of aggravated
menacing, in violation of R.C. 2903.21(A) and (B), a misdemeanor of the first degree; one
count of resisting arrest, in violation R.C. 2921.33(A) and (D), a misdemeanor of the
second degree; and, one count of possession of heroin, in violation of R.C. 2925.11(A)
and (C)(6)(a), a felony of the fifth degree. Appellant entered a plea of not guilty to the
Indictment at his arraignment on July 21, 2015.
{¶3} On August 14, 2015, Appellant appeared before the trial court, withdrew his
former pleas of not guilty, and entered pleas of guilty to one count of felonious assault, a
felony of the second degree; two counts of public indecency with a minor victim,
misdemeanors of the second degree; one count of public indecency with an adult victim,
a misdemeanor of the fourth degree; and one count of possession of heroin, a felony of
the fifth degree. The state amended the two counts of importuning to two counts of public
Richland County, Case No. 15CA112 3
indecency with a minor victim, and dismissed the aggravated menacing and resisting
arrest counts. The trial court accepted Appellant’s pleas, found the pleas to be knowingly
and voluntarily made, and ordered a presentence investigation.
{¶4} The trial court conducted a sentencing hearing on October 7, 2015. The
trial court noted, on the record, it had reviewed the presentence investigation report, the
SAQ risk assessment, and two victim impact statements. The trial court also indicated it
had considered the sentencing principles under R.C. 2929.11, as well as the sentencing
factors enumerated in R.C. 2929.12. After hearing from the parties, the trial court
sentenced Appellant to eight years in prison on the felonious assault count, ninety days
in jail on the two counts of public indecency with a minor victim, thirty days in jail on the
public indecency with an adult victim, and six months in jail on the possession of heroin
count. The trial court ordered the felonious assault and possession of heroin counts be
served consecutively to each other and concurrently with the remaining counts, for an
aggregate term of incarceration of eight and a half years. The trial court also imposed
three years of mandatory post-release control, suspended Appellant’s driver’s license for
five years, and ordered Appellant to pay $5,590.21 in restitution.
{¶5} The trial court filed a sentencing entry on October 8, 2015. On December
23, 2015, Appellant filed a pro se Notice of Appeal and motion for leave to file delayed
appeal. The state filed a memorandum in opposition to Appellant’s motion as well as a
motion to dismiss. On January 11, 2016, this Court granted Appellant’s motion for leave
to file a delayed appeal, and overruled the state’s motion to dismiss.
{¶6} It is from the trial court’s October 8, 2015 Sentencing Entry Appellant
appeals, raising the following assignments of error:
Richland County, Case No. 15CA112 4
I. THE TRIAL COURT ERRED BY IMPOSING A MAXIMUM
SENTENCE WITHOUT PROVIDING A SUFFICIENT BASES
SUPPORTED BY THE RECORD.
II. THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY
EXPLAIN, DURING THE CHANGE OF PLEA HEARING, THE POTENTIAL
MAXIMUM PENALTIES FOR THE CHARGES UPON WHICH
DEFENDANT ENTERED GUILTY PLEAS.
I
{¶7} In his first assignment of error, Appellant contends the trial court erred in
imposing a maximum sentence without providing a sufficient basis supported by the
record. We disagree.
{¶8} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1. When hearing
an appeal of a trial court's felony sentencing decision, “[t]he 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.” R.C.
2953.08(G)(2)
{¶9} Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase,
reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the
matter to the sentencing court for resentencing” if the court finds by clear and convincing
Richland County, Case No. 15CA112 5
evidence “(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b)
[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b). “An appellate
court will not find a sentence clearly and convincingly contrary to law where the trial court
considers the principles and purposes of R.C. 2929.11, as well as the factors listed in
R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within
the permissible statutory range.” State v. Ahlers, 12th Dist. Butler No. CA2015–06–100,
2016–Ohio–2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. CA2014–02–016,
2014–Ohio–5191, ¶ 6.
{¶10} Under R.C. 2929.11(A), 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 these purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both. R.C. 2929.11(A).
{¶11} R.C. 2929.12 lists general factors which must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria
which do not control the court's discretion but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine the
most effective way to comply with the purpose and principles of sentencing as set forth in
R.C. 2929.11. R.C. 2929.12.
Richland County, Case No. 15CA112 6
{¶12} Among the various factors that the trial court must consider and balance
under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the
victim as a result of the offense; (2) whether the offender has a history of criminal
convictions; (3) whether the offender has not responded favorably to sanctions previously
imposed by criminal convictions; and (4) whether the offender shows genuine remorse
for the offense. R.C. 2929.12.
{¶13} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony
sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109
Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.
{¶14} At the sentencing hearing, the trial court indicated it had considered the
presentence investigation, two victim impact statements, and the SAQ risk assessment.
The trial court noted the SAQ risk assessment showed Appellant’s highest risk was for
alcohol, “followed very closely by drugs, and then followed by violence and anti-social.”
October 7, 2015 Sentencing Hearing at 4. The trial court stated it had also, “of course,
considered the sentencing principles under 2929.11 and the factors…under 2929.12,
both more serious, less serious[,] recidivism, more likely recidivism, less likely.” Id. at 5.
The trial court provided Appellant with an opportunity to speak. The trial court also heard
from one of the victims, and the victim witness advocate, who read a letter from another
victim.
{¶15} The trial court commented Appellant’s behavior was “about as bad as it
gets.” Id. at 12. The trial court added, “Because there were multiple offenses committed
as part of a course of criminal conduct, the harm caused was great and unusual that no
single prison term would adequately reflect the seriousness of the conduct. And the fact
Richland County, Case No. 15CA112 7
that this isn’t your first time. You’ve got a lengthy criminal history. So it’s necessary to
protect the public from future crimes.” Id. at 13.
{¶16} The sentence imposed is within the range provided for felonies of the
second degree. We find the trial court properly considered the statutory factors and
complied with all applicable rules and laws. We further find the sentence is not clearly
and convincingly contrary to law, and the trial court did not err in sentencing Appellant.
{¶17} Appellant’s first assignment of error is overruled.
II
{¶18} In his second assignment of error, Appellant maintains the trial court erred
in failing to adequately explain the potential maximum penalties for the charges upon
which he entered his guilty pleas.
{¶19} Crim. R. 11(C)(2)(a) provides:
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing hearing.
Richland County, Case No. 15CA112 8
{¶20} The trial court must engage in a Crim.R. 11(C) colloquy with the defendant
in order to ensure that a felony defendant's plea is knowing, voluntary and intelligent.
State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶ 25–26. During
the colloquy, the trial court is to provide specific information to the defendant, including
constitutional and nonconstitutional rights being waived. Crim.R. 11(C)(2); State v.
Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.
{¶21} The nonconstitutional rights the defendant must be informed of are the
effect of his plea, the nature of the charges, and the maximum penalty, which includes an
advisement on post-release control if applicable.
{¶22} During the change of plea hearing, the trial court addressed Appellant as
follows:
{¶23} THE COURT: First count is Felonious Assault, that’s a Second Degree
Felony. It has a presumption of prison because it’s a Second Degree Felony, * * *
{¶24} The maximum on that Count’s 8 years in prison, the maximum fine is
$15,000, and if you do go to prison on that case you’re required to be on Post Release
Control for 3 years when you get out, and I’ll talk to you a little bit about Post Release
Control.
{¶25} * * *
{¶26} What it means is you go to prison, you do all your time. * * * when you do
all your time, you get out, they’re going to put you on it. It’s going to be like probation or
parole, it’s going to be rules.
{¶27} You have to abide by those rules, it’s called Post Release Control. If you
violate the rules of Post Release Control, the Department of Rehabilitation and
Richland County, Case No. 15CA112 9
Corrections will send you back to prison for half of the sentence that I gave you, that’s the
most they could give you. They can give you less if they want to, but they could give you
up to half.
{¶28} So you understand that if you go to prison, you will be on Post Release
Control and, if you mess up on Post Release Control, they could send you back to prison
for half the time you already did, you understand that?
{¶29} * * *
{¶30} APPELLANT: Okay.
{¶31} THE COURT: The other thing that’s important about Post Release Control
for you, Mr. Hall, is if you commit a new crime, a new felony or a new crime while you’re
on Post Release Control, the judge who sentences you on the new crime can convert
your Post Release Control supervision time * * * into prison time and run it consecutive to
the new crime.
{¶32} So you can get like a double sentence, basically. * * *
{¶33} Do you understand if you commit a new crime that the Post Release Control
supervision time could be turned into prison time; do you understand that?
{¶34} APPELLANT: Yeah.
{¶35} * * *
{¶36} THE COURT: * * * You would have Public Indecency in Count 2 as
amended, it’s a misdemeanor of the second degree.
{¶37} For misdemeanors you can’t go to prison but you can go to jail, 90 days in
jail, $750 fine for Count 2; same thing for Count 3, 90 days in jail, $750 fine are the
Richland County, Case No. 15CA112 10
maximums; Count 4 is Public Indecency [w]ith [a]n Adult [V]ictim, a Fourth Degree
Misdemeanor, that’s 30 days in jail, $250 fine.
{¶38} Finally, Count 7 is Possession of Heroin, 12 months in prison, $2,500 fine,
3 years discretionary Post Release Control * * * it really doesn’t matter because you have
the mandatory Post Release Control on Count 1, and then also there’s a driver’s license
suspension under that Possession of Heroin, Count 7, it’s 6 months to 5 years, so I could
either do 6 months or somewhere in between all the way up to 5 years.
{¶39} Do you understand what the maximum penalties are for all these counts?
{¶40} APPELLANT: Yes, sir.
{¶41} Transcript of August 13, 2015 Change of Plea Hearing at 15-16, 18-22.
{¶42} The trial court also explained concurrent and consecutive sentences to
Appellant who indicated he understood. In addition, Appellant executed an Admission of
Guilt/Judgment Entry, which provided a written explanation of the penalties. Counsel for
Appellant advised the trial court he and Appellant had reviewed the Admission of
Guilt/Judgment Entry.
{¶43} At the time Appellant entered his guilty pleas, the trial court orally engaged
in a Crim.R. 11(C) colloquy with him. A review of the transcript establishes Appellant was
aware of the nature of the charges and the maximum penalties involved. We find the
record affirmatively demonstrates the trial court advised Appellant of the maximum
penalties he could receive.
{¶44} Appellant’s second assignment of error is overruled.
Richland County, Case No. 15CA112 11
{¶45} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur