State v. Williams

[Cite as State v. Williams, 2017-Ohio-1002.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2016-L-050
- vs - :

CHARUNZ WILLIAMS, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000117.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, 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, OH 44077 (For
Defendant-Appellant).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} Appellant, Charunz Williams, appeals the judgment on sentence entered

by the Lake County Court of Common Pleas. For the reasons discussed in this opinion,

we affirm.

{¶2} On February 8, 2016, appellant pleaded guilty to one count of engaging in

a pattern of corrupt activity, a felony of the second degree, in violation of R.C.
2923.32(A)(1); two counts of grand theft of a motor vehicle, felonies of the fourth

degree, in violation of R.C. 2913.02(A)(1); and four counts of breaking and entering,

felonies of the fifth degree, in violation of R.C. 2911.13(B). Appellant was sentenced to

concurrent and consecutive terms, totaling 9 years. The trial court also ordered

appellant to pay $66,698 in restitution and $200,094 in fines, pursuant to R.C.

2923.32(B)(2)(a), which permits “triple” fines for the commission of engaging in a

corrupt activity. Appellant now appeals and assigns two errors for this court’s review.

His first assignment of error provides:

{¶3} “The trial court erred by sentencing the defendant-appellant to a

consecutive, nine-year prison term.”

{¶4} Appellate review of a felony sentence is governed by R.C. 2953.08(G)(2),

which provides:

{¶5} 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.

{¶6} 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 of 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:

{¶7} (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;

{¶8} (b) That the sentence is otherwise contrary to law. See also State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002.

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 {¶9} The foregoing standard is highly deferential as the “the ‘clear and

convincing’ standard used by R.C. 2953.08(G)(2) is written in the negative. It does not

say that the trial judge must have clear and convincing evidence to support its findings.

Instead, it is the court of appeals that must clearly and convincingly find that the record

does not support the court's findings.” State v. Venes, 8th Dist. Cuyahoga No. 98682,

2013-Ohio-1891, ¶21 (8th Dist.). Accordingly, this court can only modify or vacate a

sentence if the panel determines, by clear and convincing evidence, that the record

does not support the trial court’s decision or if the sentence is contrary to law. Marcum,

supra, at ¶7.

{¶10} The Supreme Court of Ohio has held that R.C. 2929.11 and R.C. 2929.12

do not require judicial fact-finding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.

Instead, “in sentencing a defendant for a felony, ‘a court is merely required to “consider”

the purposes and principles of sentencing in R.C. 2929.11 and the statutory * * * factors

set forth in R.C. 2929.12.’” State v. Brown, 11th Dist. Lake No. 2014-L-075, 2015-Ohio-

2897, ¶34, quoting State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013,

¶44. A trial court meets its obligations by stating that it has considered the relevant

factors. Id.

{¶11} Under his first assignment of error, appellant argues the trial court failed to

properly weigh the statutory sentencing factors set forth under R.C. 2929.11 and R.C.

2929.12. First, he contends there were a number of factors making his conduct less

serious than conduct normally constituting the offense. Initially, he argues his crimes

were prompted by his inability to obtain gainful employment after his recent release from

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prison; as a result, he was unable to meet his financial obligations and care for his

family.

{¶12} We fail to see how appellant’s alleged inability to find a job after his

release from prison militates in his favor. Many people have difficulty obtaining

employment. This does not justify stealing from others. Moreover, at the time of his

sentencing, appellant was employed. This indicates appellant could have found

employment if he was sufficiently diligent, but elected to engage in a series of theft

crimes in lieu of pursuing legitimate work.

{¶13} Next, appellant claims that his lack of drug or alcohol abuse weighs in his

favor. Even though appellant was ostensibly “clean” when he was screened for the

presentence investigation report, it is unclear how these results should lessen the

seriousness of his criminal acts. Appellant may not have been a drug or alcohol abuser

when he committed the crimes; on one hand, this could be a positive factor inasmuch

as it indicates appellant’s conduct was not motivated by an illicit or unmanaged

addiction. Alternatively, appellant’s sobriety could also be viewed as somewhat

problematic to the extent he engaged in the criminal activity with a “clear mind,”

unclouded by any chemical influence. Regardless, the trial court did not err by failing to

give appellant’s lack of chemical abuse greater weight.

{¶14} Appellant next asserts that his sentence was disproportionately severe in

relation to his co-defendant’s. He notes that his co-defendant, Marcus McWilson, who

participated equally and encouraged appellant to commit the crimes, received only a

three-year term of imprisonment. Appellant consequently claims the trial court erred in

sentencing him to a nine-year prison term. We do not agree.

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 {¶15} R.C. 2929.11(B) provides:

{¶16} (B) A sentence imposed for a felony shall be reasonably calculated
to achieve the two overriding purposes of felony sentencing set
forth in division (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.

{¶17} In relation to the foregoing statute, the trial court stated:

{¶18} I understand the balancing. And I know you backed away from the
word parody [sic], but I understand the concept you’re trying to say.
[The co-defendant] only got 3 years and now they’re asking for 12
in this particular case. And to the extent in terms of the
involvement in the crimes, to the extent I know what the
involvement of the two Defendants were, and I wasn’t the Judge in
the other case, certainly I’ve considered that relative need to be
consistent. But on the other hand I need to consider all the factors
which I have just set forth, and the purposes and principles, not
only am I here to punish Mr. Williams, but the role that he had in the
commission of these particular crimes that are, in fact, before me,
but it’s also to protect the public from future crimes committed by
Mr. Williams. And that criminal conviction history has left a wake of
victims over the years and has left a tremendous number of victims
in this particular case alone. And so it goes beyond just punishing
this Defendant, my role is also to protect the public from those
crimes and to send a message to others who may be tempted to
commit crimes such as Mr. Williams has committed in this particular
case.

{¶19} So, I acknowledge and I’ve considered both the argument that
you’re making not only here in the Courtroom today, but also in
your sentencing memorandum as well. Nevertheless, I respectfully
disagree that 3 years or even 4 years would be appropriate.

{¶20} The court considered the statutory purposes of R.C. 2929.11 and, in doing

so, concluded appellant’s significant prior criminal record justified a more severe

sentence than that of his co-defendant. The court underscored that appellant had a

total of 28 convictions over a 33-year period and 19 of those convictions were felonies.

Consistency in felony sentencing does not imply a court must compare like offenders

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and impose like sentences. See State v. Delmanzo, 11th Dist. Lake No. 2007-L-218,

2008-Ohio-5856, ¶32. To the contrary, consistency is derived from a sentencing

judge’s proper application of the relevant statutory sentencing factors. Id. The felony

ranges and applicable prison terms, in relation to a particular offender’s conduct and

criminal history, inform the concepts of sentencing consistency and proportionality.

Hence, it does not always follow that two co-defendants who participated in similar

criminal conduct must or should be sentenced to roughly the same prison term. In this

case, the trial court carefully considered the sentencing factors in relation to appellant’s

conduct and prior criminal history and, in doing so, it ensured appellant’s sentence was

consistent and proportional as contemplated by Ohio law.

{¶21} Finally, appellant contends the record does not support the

characterization of him as “uncooperative.” He asserts when the police first began

investigating him and his co-defendant, his attorney advised him not to communicate

with police. And, he claims, he would have been unable to answer specific questions

about the stolen items at issue because he did not know where they were located.

{¶22} A review of the sentencing hearing does not indicate the court

characterized appellant as uncooperative. And, even if there was some suggestion that

that court harbored this viewpoint, such a position is not inherently unreasonable to the

extent that appellant’s co-defendant was the individual who provided the greatest

assistance in the underlying investigation.

{¶23} The trial court complied with the purposes and principles of felony

sentencing and properly considered all relevant sentencing factors in pronouncing

sentence. We therefore conclude appellant has failed to show, by clear and convincing

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evidence, that the record does not support the trial court’s judgment or if the sentence is

contrary to law.

{¶24} Appellant’s first assignment of error lacks merit.

{¶25} Appellant’s second assignment of error provides:

{¶26} “The trial court erred to the prejudice of the defendant-appellant when it

ordered him to pay $66,698 in restitution and $200,094 in fines.”

{¶27} Appellant contends the trial court’s conclusion that he was able to pay the

foregoing amounts or that he will be able to so pay in the future was not supported by

the record. Appellant emphasizes he will be 60 years old upon his release from prison;

he dropped out of high school and possesses no advanced degrees. He has been

involved in the criminal justice system consistently since his juvenile years and has

been repeatedly sentenced to prison. And, due to his criminal record, he has difficulty

obtaining jobs and meeting financial obligations. In sum, appellant therefore contends

the court abused its discretion when it imposed the restitution order and fines.

{¶28} R.C. 2929.18 allows a trial court to impose financial sanctions, including

restitution and reimbursements on an offender. R.C. 2929.19(B)(5), however, requires

that, before imposing a financial sanction under R.C. 2929.18, the trial court “shall

consider the offender’s present and future ability to pay the sanction or fine.”

Furthermore, R.C. 2929.18(E) states: “A court that imposes a financial sanction upon an

offender may hold a hearing if necessary to determine whether the offender is able to

pay the sanction or is likely in the future to be able to pay it.” (Emphasis added.) “‘The

trial court does not need to hold a hearing on the issue of financial sanctions, and there

are no express factors that the court must take into consideration or make on the

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record.’” State v. Russell, 2nd Dist. Montgomery No. 23454, 2010-Ohio-4765, ¶62,

citing State v. Culver, 160 Ohio App.3d 172, 2005-Ohio-1359, ¶57 (2d Dist.). A trial

court need not even state that it considered an offender’s ability to pay, but the record

should contain some evidence that the trial court considered the offender’s ability to

pay. Id., citing State v. Parker, 2nd Dist. Champaign No. 03CA0017, 2004-Ohio-1313,

¶42.

{¶29} Moreover, the failure to object to the amount of a fine at a time when the

trial court could correct that error constitutes a waiver of all but plain error. State v.

Barker, 8th Dist. Cuyahoga No. 93574, 2010-Ohio-4480, ¶11. “In other words, when a

defendant does not object at the sentencing hearing to the amount of the fine and does

not request an opportunity to demonstrate to the court that he does not have the

resources to pay the fine, he waives any objection to the fine on appeal.” Id.

{¶30} In this case, appellant did not object to either the restitution order amount

or the fine. The record demonstrates that, prior to issuing the restitution order, the

amount of restitution had been calculated within a reasonable degree of certainty. The

state submitted an exhibit detailing the monetary amounts the victims lost due to

appellant’s actions and the court issued the restitution order in the amount that the

exhibit reflected. In doing so, the court noted it had considered appellant’s future ability

to pay, stating that appellant, upon his release, “should have the ability to engage in

meaningful employment.” Pursuant to R.C. 2923.32(B)(2)(a), the court tripled the

amount lost by the victims and imposed that amount as a fine. Even though appellant

will not likely have the opportunity upon release to obtain highly remunerative

employment, the court determined he would be able to engage in meaningful

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employment such that the restitution order and fine could be paid down. To be sure, the

$66,698 restitution order and the $200,094 fine are extremely high. Nevertheless, the

former is supported by the record and the latter is authorized by statute. Under the

circumstances of this case, we find no error.

{¶31} Appellant’s second assignment of error lacks merit.

{¶32} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.

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