State v. Wilson

[Cite as State v. Wilson, 2018-Ohio-396.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. John W. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 17CA31
JESSIE WILSON :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
2016CR0582D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 31, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH SNYDER JOHN O'DONNELL III
Assistant Prosecutor 10 West Newlon Place
38 South Park Street Mansfield, OH 44902
Mansfield, OH 44902
Richland County, Case No. 17CA31 2

Gwin, J.,

{¶1} Appellant Jessie Wilson [“Wilson”] appeals his convictions and sentences

after a jury trial in the Richland County Court of Common Pleas.

Facts and Procedural History

{¶2} In the months prior to September 1, 2016, officers of the Mansfield Police

Department METRICH Enforcement Unit conducted surveillance on 321 and 329 West

Sixth Street. The surveillance was initiated because of anonymous tips about drug

activity at both locations. Ultimately, METRICH conducted two controlled buys with a

confidential informant. During the first buy, the seller, Terry Hardin, was dropped off at

321 West Sixth while the confidential informant waited in the parking lot at the rear of the

apartment building. Hardin was observed by the officers to walk over to 329 West Sixth

Street, obtain drugs and return to the parking lot. The drugs were then exchanged with

the confidential informant. During the second buy on August 25, 2016, the informant

purchased the drugs inside 321 West Sixth Street. Wilson’s vehicle, a red Chrysler

Crossfire, was seen at 329 West Sixth Street on multiple occasions.

{¶3} On August 31, 2016, law enforcement officers obtained a search warrant

from a Mansfield Municipal Court judge to search 329 West Sixth Street, Mansfield, Ohio.

Wilson’s neighbor, Edward Johnson, who lived at 319 West Sixth Street, identified Wilson

to the police as living at 329 West Sixth Street. The morning of the raid, Mr. Johnson

heard a knock and went to his front door. He saw Wilson enter the 321 West Sixth Street

address. He had also previously seen Wilson walking his dog outside.

{¶4} When police executed the search warrant at 329 West Sixth Street they

found a powdery substance out in the open, which later tested positive as .03 grams of
Richland County, Case No. 17CA31 3

cocaine. A digital scale and plastic baggies were also found. A baggie of marijuana,

weighing 28.16 grams, and a baggie of heroin weighing 10.13 grams were found in a

utility closet. A pill bottle with 68 Buspirone tablets, weighing 2.57 grams, was found on

a mantle. Photographs, including Wilson’s were seen on the mantel. When Wilson was

arrested, he stated that he lived at 329 West Sixth Street. (1T. at 261).

{¶5} The jury found Wilson guilty of Possession of Heroin, over ten (10) grams

and less than fifty (50) grams, a felony of the second degree; Possession of Cocaine,

less than five (5) grams, a felony of the fifth degree; and Possession of Buspirone, with a

prior drug conviction, a felony of the fifth degree.

{¶6} The trial court sentenced Wilson to an 8-year mandatory prison sentence

on the possession of heroin charge, and twelve months each for the possession of

cocaine and possession of Buspirone charges. All sentences were ordered to be served

concurrently.

Assignments of Error

{¶7} Wilson raises three assignments of error,

{¶8} “I. DEFENDANT/APPELLANT [WAS] DENIED EFFECTIVE ASSISTANCE

OF COUNSEL BY FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE.

{¶9} “II. DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE

OF COUNSEL BY FAILING TO FILE A DEMAND UNDER ORC §2925.51 FOR THE

CHEMIST TO TESTIFY AND FOR THE HEROIN TO BE AVAILABLE FOR AN

INDEPENDENT EXPERT TO WEIGH THE HEROIN.

{¶10} “III. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM

SENTENCE.”
Richland County, Case No. 17CA31 4

I.

{¶11} In his first assignment of error, Wilson contends that he was denied the

effective assistance of trial counsel. Specifically, Wilson argues that his trial counsel

should have filed a motion to suppress the search warrant issued in his case.

STANDARD OF APPELLATE REVIEW.

{¶12} To obtain a reversal of a conviction on the basis of ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,

693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).

{¶13} Trial counsel’s failure to file a suppression motion does not per se constitute

ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–

0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56.

Counsel can only be found ineffective for failing to file a motion to suppress if, based on

the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA

130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–

3009, at ¶ 86. The defendant must further show that there is a reasonable probability that

the outcome would have been different if the motion had been granted or the defense

pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91
Richland County, Case No. 17CA31 5

L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798

(2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

ISSUES FOR APPEAL

A. Whether there is a reasonable probability a motion to suppress the search

warrant would have been granted.

{¶14} Wilson contends that the search warrant “could not corroborate the

information that Defendant/Appellant lived at 329 West Sixth Street…” [Appellant’s Brief

at 6].

1). Standing to object to the search of 329 West Sixth Street.

{¶15} Only those whose rights were violated by the search itself can urge

suppression of evidence obtained in violation of the Fourth Amendment. Standing is not

achieved solely by a person’s status as a defendant or by introduction of damaging

evidence. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176(1969).

Consequently, before a court may review the reasonableness of police behavior, the

defendant must be able to demonstrate that his Fourth Amendment right to privacy was

violated.

{¶16} In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697(1960),

the United States Supreme Court held that automatic standing applied to any person

charged with an offense in which possession is an essential element, and that any person

legitimately on the premises where a search takes place could challenge the lawfulness

of the search.

{¶17} Automatic standing was eliminated in Rakas v. Illinois, 439 U.S. 128, 99

S.Ct. 421, 58 L.Ed.2d 387(1978). In Rakas, the defendants were passengers in an
Richland County, Case No. 17CA31 6

automobile that had been lawfully stopped on reasonable suspicion but unlawfully

searched. The search uncovered a sawed-off rifle under the passenger seat and a box

of shells in a locked glove box, which helped link the defendants to a robbery. The

defendants never asserted a property interest in the evidence but claimed standing

because of their lawful presence as passengers in the vehicle.

{¶18} The United States Supreme Court held that a court may not exclude

evidence under the Fourth Amendment unless it finds that an unlawful search or seizure

violated the defendant’s own constitutional rights. Rakas, at 133–140, 99 S.Ct. 421, 58

L.Ed.2d 387. See, also, Brown v. United States, 411 U.S. 223, 229–230, 93 S.Ct. 1565,

1569–70, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 171–172, 89

S.Ct. 961, 965, 22 L.Ed.2d 176 (1969); Simmons v. United States, 390 U.S. 377, 389, 88

S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968). A defendant’s Fourth Amendment rights are

violated only when the challenged conduct invaded his legitimate expectation of privacy

rather than that of a third party. Rakas v. Illinois, 439 U.S., at 143, 149-152, (Powell, J.,

concurring); Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d

308 (1972); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d

1154 (1968).

{¶19} To the extent that Wilson argues that no corroborating evidence established

that he lived at 329 West Sixth Street, he would not have had standing to challenge the

search warrant issued and executed at that address. Thus, not filing a motion to suppress

may have been a tactical decision by Wilson.

{¶20} A defendant has no constitutional right to determine trial tactics and strategy

of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298(1999); State v.
Richland County, Case No. 17CA31 7

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150; State v. Donkers,

170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶ 183(11th Dist.). Rather,

decisions about viable defenses are the exclusive domain of defense counsel after

consulting with the defendant. Id. When there is no demonstration that counsel failed to

research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing

court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d 45, 49,

402 N.E.2d 1189(1980), citing People v. Miller, 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841,

498 P.2d 1089(1972); State v. Wiley, 10th Dist. No. 03AP-340, 2004- Ohio-1008 at ¶ 21.

{¶21} Debatable strategic and tactical decisions may not form the basis of a claim

for ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 1995–Ohio–

171. Even if the wisdom of an approach is questionable, “debatable trial tactics” do not

constitute ineffective assistance of counsel. Id. “Poor tactics of experienced counsel,

however, even with disastrous result, may hardly be considered lack of due process * *

*.” State v. Clayton, 62 Ohio St.2d 45, 48, 402 N.E.2d 1189 (1980) (quoting United States

v. Denno, 313 F.2d 364 (2nd Cir. 1963), certiorari denied 372 U.S. 978, 83 S.Ct. 1112,

10 L.Ed.2d 143.

B. Whether the affidavit in support of the search warrant contains sufficient

probable cause upon which the reviewing court could issue the search warrant.

{¶22} Wilson contends that the affidavit contains references to anonymous tips

without any indication concerning the veracity of the provider of the information.

{¶23} At the outset we note, the record before this Court contains neither the

search warrant nor the affidavit in support of the search warrant. Accordingly, we

generally presume the regularity of that proceeding and affirm. State ex rel. Hoag v.
Richland County, Case No. 17CA31 8

Lucas Cty. Bd. of Elections, 125 Ohio St.3d 49, 2010-Ohio-1629, 925 N.E.2d 984, ¶ 12,

citing Christy v. Summit Cty. Bd. of Elections, 77 Ohio St.3d 35, 39, 671 N.E.2d 1(1996);

State ex rel. Duncan v. Portage Cty. Bd. of Elections, 115 Ohio St.3d 405, 2007-Ohio-

5346, 875 N.E.2d 578, ¶ 17. Appellant has the responsibility of providing the reviewing

court with a record of the facts, testimony, and evidentiary matters that are necessary to

support the appellant's assignments of error. Wozniak v. Wozniak, 90 Ohio App.3d 400,

409, 629 N.E.2d 500, 506 (9th 1993); Volodkevich v. Volodkevich, 48 Ohio App.3d 313,

314, 549 N.E.2d 1237, 1238-1239 (9th 1989). This principle is recognized in App.R. 9(B),

which provides, in part, that '***the appellant shall in writing order from the reporter a

complete transcript or a transcript of such parts of the proceedings not already on file as

he deems necessary for inclusion in the record.***. "When portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to the assigned errors, the court has no

choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v.

Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385(1980). If a partial

record does not conclusively support the trial court's decision, it is presumed that the

omitted portion provides the necessary support. Wozniak, 90 Ohio App.3d at 409, 629

N.E.2d at 506; In re Adoption of Foster (1985), 22 Ohio App.3d 129, 131, 489 N.E.2d

1070, 1072-1073 (3rd 1985), overruled on other grounds, In re Adoption of Sunderhaus,

63 Ohio St.3d 127 (1991).

{¶24} Also, in State v. Hooks, 92 Ohio St.3d 83, 2001–Ohio–150, 748 N.E.2d

528(2001), the Supreme Court noted, “a reviewing court cannot add matter to the record

before it that was not a part of the trial court's proceedings, and then decide the appeal
Richland County, Case No. 17CA31 9

on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d

500(1978). It is also a longstanding rule “that the record cannot be enlarged by factual

assertions in the brief.” Dissolution of Doty v. Doty, 4th Dist. Pickaway No. 411, 1980 WL

350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio

App. 55, 59, 201 N.E.2d 227(10th Dist. 1963).

{¶25} In the alternative, we would in the interest of justice, note that the record

does contain evidence that the premises were under surveillance by law enforcement and

two controlled buys were conducted using a confidential informant. Law enforcement

officers observed these buys.

{¶26} In reviewing the affidavit in this case, we are guided by the following

instruction by the Ohio Supreme Court: ““[R]eviewing courts may not substitute their own

judgment for that of the issuing magistrate by conducting a de novo determination as to

whether the affidavit contains sufficient probable cause upon which the reviewing court

would issue the search warrant. On the contrary, reviewing courts should accord great

deference to the magistrate's determination of probable cause, and doubtful or marginal

cases in this area should be resolved in favor of upholding the warrant.” State v. George,

45 Ohio St.3d 325, 330 544 N.E.2d 640(1989), paragraph two of the syllabus; Illinois v.

Gates, 462 U.S. 213, 238-239, 102 S.Ct. 2317, 76 L.Ed.2d 527(1983), internal citations

omitted. “‘[T]he duty of a reviewing court is simply to ensure that the magistrate had a

‘substantial basis for * * * conclud[ing]’ that probable cause existed.” State v. George,

supra at 329, 544 N.E.2d 640, citing Gates, 462 U.S. at 238-239. See also, State v.

Norman, 5th Dist. Guernsey No. 2010-CA-21, 2011-Ohio-568 at ¶ 33.
Richland County, Case No. 17CA31 10

{¶27} In assessing whether a party has met its burden of proof, the Ohio Supreme

Court has stated, “[t]he degree of proof required is determined by the impression which

the testimony of the witnesses makes upon the trier of facts, and the character of the

testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to

be informed, the disposition to tell the truth or otherwise, and the probability or

improbability of the statements made, are all tests of testimonial value. Cross v. Ledford,

161 Ohio St. 469, 477, 120 N.E.2d 118, 123(1954). See also, Rice v. City of Cleveland,

144 Ohio St. 299, 58 N.E. 768(1944). “In determining the sufficiency of probable cause

in an affidavit submitted in support of a search warrant, ‘[t]he task of the issuing magistrate

is simply to make a practical, commonsense decision whether, given all the

circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of

knowledge’ of persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.’” State v. George,

45 Ohio St.3d 325, 544 N.E.2d 640(1989), paragraph one of the syllabus, quoting Illinois

v. Gates, 462 U.S. 213, 238-39. See also, State v. Norman, supra, 2011-Ohio-568, ¶ 38.

{¶28} Moreover, evidence obtained by a law enforcement officer acting in

objectively reasonable reliance on a search warrant issued by a detached and neutral

magistrate but ultimately found to be unsupported by probable cause will not be barred

by the application of the exclusionary rule. See George, 45 Ohio St.3d 325 at paragraph

three of the syllabus, citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82

L.Ed.2d 677(1984). Finally, an officer executing a valid warrant may seize an item not

described in the warrant if “it was ‘immediately apparent’ that the item was incriminating.”

State v. Waddy, supra 63 Ohio St.3d at 442, citing Coolidge v. New Hampshire, 403 U.S.
Richland County, Case No. 17CA31 11

443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564(1971). See also Horton v. California, 496 U.S.

128, 110 S.Ct. 2301, 110 L.Ed.2d 112(1990).

{¶29} In the case at bar, the evidence discloses that in reliance upon the fact that

unidentified citizen informants reported drug activity at the location the police conducted

surveillance and two controlled buys from the premises. This would be sufficient probable

cause upon which the reviewing court would issue the search warrant.

{¶30} As there is not a reasonable probability that a motion to suppress the search

warrant would have been granted, trial counsel was not ineffective in failing to file the

motion to suppress.

{¶31} Wilson’s first assignment of error is overruled.

II.

{¶32} In his second assignment of error, Wilson argues he was denied effective

assistance of counsel because counsel: 1). did not demand the chemist who weighed

and analyzed the drugs testify at trial; 2). did not demand the heroin to be made available

for independent testing and 3). did not demand an independent expert to weight the

heroin.

STANDARD OF APPELLATE REVIEW.

{¶33} To obtain a reversal of a conviction on the basis of ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,

693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a
Richland County, Case No. 17CA31 12

court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).

ISSUES FOR APPEAL

A. Whether Wilson was prejudiced by his attorney’s failure to have the expert

testify or to have the drugs re-weighed by an independent expert.

{¶34} In the case at bar, Wilson was charged with possession of more than 10

grams but less than 50 grams of heroin in violation of R.C. 2925.11(A) and R.C.

2925.11(C)(6)(d). The laboratory report submitted at trial indicates that 10.03 grams of

heroin were recovered from the residence. (1T. at 256; State’s Exhibit 33).

{¶35} Wilson agrees that he cannot demonstrate that live testimony of the chemist

who weighed and analyzed the heroin would have changed the outcome of the jury

verdict. Wilson contends, however, that given how little the weight of the heroin is over

10 grams trial counsel should have requested an independent analysis at least

concerning the weight of the drug. [Appellant Brief at 10].

{¶36} Debatable trial tactics do not establish ineffective assistance of counsel.

State v. Hoffner, 102 Ohio St.3d 358, 365, 2004–Ohio–3430(2004), ¶ 45. Trial counsel’s

failure to request an expert is a “debatable trial tactic,” and does not amount to ineffective

assistance of counsel. See State v. Thompson (1987), 33 Ohio St.3d 1, 9, 514 N.E.2d

407 (trial counsel’s failure to obtain a forensic pathologist to “rebut” issue of rape was not

ineffective assistance of counsel); State v. Foust, 105 Ohio St.3d 137, 153–154, 2004–

Ohio–7006, 823 N.E.2d 836, ¶¶ 97–99 (trial counsel’s failure to request funds for a DNA

expert, an alcohol and substance-abuse expert, a fingerprint expert, and an arson expert

did not amount to ineffective assistance of counsel because appellant’s need for experts
Richland County, Case No. 17CA31 13

was “highly speculative” and counsel’s choice “to rely on cross-examination” of

prosecution’s expert was a “legitimate tactical decision”); State v. Yarger, 6th Dist. No.

H–97–014, 1998 WL 230648 (May 1, 1998) (trial counsel’s failure to hire an expert

medical doctor to rebut the state’s expert witness was not ineffective assistance of trial

counsel); State v. Rutter, 4th Dist. No. 02CA17, 2003–Ohio–373, ¶ 19, 28 (trial counsel’s

failure to hire an accident reconstructionist did not amount to ineffective assistance of

counsel).

{¶37} In the case at bar, Wilson’s argument that re-weighing the heroin would

have resulted in a finding of less than 10 grams is entirely speculative. Here, the record

reveals that trial counsel's decision to rely on cross-examination appears to have been a

legitimate “tactical decision,” especially in light of Wilson’s defense at trial that the drugs

were not his and there was no corroborating evidence to prove he even lived at the place

where the drugs were recovered. See, State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-

7006, 823 N.E.2d 836, ¶ 97 (2004).

{¶38} Accordingly, the failure to demand the chemist testify at trial and to demand

an independent expert reweigh the drugs cannot be considered ineffective assistance of

counsel under the facts of this case.

{¶39} Wilson’s second assignment of error is overruled.

III.

{¶40} In his third assignment of error, Wilson maintains that the trial court erred in

imposing the maximum sentence for possession of heroin of more than 10 grams but less

than 50 grams of heroin in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(6)(d).

{¶41} R.C. 2925.11(C)(6) provides in pertinent part,
Richland County, Case No. 17CA31 14

(d) If the amount of the drug involved equals or exceeds one hundred

unit doses but is less than five hundred unit doses or equals or exceeds ten

grams but is less than fifty grams, possession of heroin is a felony of the

second degree, and the court shall impose as a mandatory prison term one

of the prison terms prescribed for a felony of the second degree. (Emphasis

added).

{¶42} Wilson was sentenced to the maximum sentence of eight years. R.C.

2929.14(A)(2).

STANDARD OF APPELLATE REVIEW.

{¶43} In accordance with R.C. 2953.08(A)(1), Wilson is entitled to appeal as of

right the maximum sentence imposed on his conviction.

{¶44} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

{¶45} Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law.
Richland County, Case No. 17CA31 15

{¶46} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

R.C. 2929.13(B).

{¶47} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

This section does not apply to Wilson’s appeal.

R.C. 2929.13(D).

{¶48} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or

second degree, for a felony drug offense that is a violation of any provision of Chapter

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified

as being applicable.

{¶49} R.C. 2929.13(D) (1) provides that when sentencing for a first or second-

degree felony “it is presumed that a prison sentence is necessary in order to comply with

the purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides

that “[n]otwithstanding the presumption * * * the sentencing court may impose a

community control sanction,” (emphasis added), but only if the sentencing court finds that
Richland County, Case No. 17CA31 16

a community control sanction would (1) adequately punish the offender and protect the

public from future crime, and (2) not demean the seriousness of the offense because the

statutory less serious sentencing factors outweigh the more serious factors.

{¶50} However, in R.C. 2925.11(C)(6)(d), the legislature has mandated a prison

sentence be imposed under the facts established at trial in Wilson’s case. Thus, the trial

court was not required to make any findings before imposing a mandatory prison

sentence from within the range of prison sentences specified for a felony of the second

degree.

R.C. 2929.14.

{¶51} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Wilson was not given an

additional prison sentence.

R.C. 2929.14(C).

{¶52} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. The

trial court imposed concurrent sentences in Wilson’s case.

R.C. 2929.20.

{¶53} R.C. 2929.20 (I) is inapplicable, as Wilson was not applying to the court for

judicial release.

R.C. 2929.11 and R.C. 2929.12.

{¶54} The Marcum court further noted,

We note that some sentences do not require the findings that R.C.

2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

appellate courts to review those sentences that are imposed solely after
Richland County, Case No. 17CA31 17

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

that is equally deferential to the sentencing court. That is, an appellate court

may vacate or modify any sentence that is not clearly and convincingly

contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.

146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).

{¶55} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

{¶56} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a

non-exhaustive list of factors a trial court must consider when determining the

seriousness of the offense and the likelihood that the offender will commit future offenses.

{¶57} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have
Richland County, Case No. 17CA31 18

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶1 and ¶11, citing Foster at ¶100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.

{¶58} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

{¶59} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,

4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

{¶60} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its

findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to
Richland County, Case No. 17CA31 19

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

{¶61} In the case at bar, the trial court made the following findings during Wilson’s

sentencing hearing,

THE COURT: All right. Coming to the factors that I am required to

weigh under Ohio Revised Code 2929.12, has factors that I am required to

consider in every case in sentencing which make the conduct more serious

or less serious, which make recidivism, a repeat crime, more likely or less

likely. In terms of factors which make the conduct more serious, the

defendant acted as a part of organized criminal drug activity in the trade.

That is the factor I see more serious. I don't see any that make it less

serious.

In terms of recidivism, the factors that I see that make recidivism

more likely is Mr. Wilson has a history of criminal convictions and including

specifically a drug trafficking conviction and also possession of weapons,

carrying a concealed weapon. Drugs and guns don't mix.

Also, I am seeing that he satisfies the factor of not responding

favorably to sanctions imposed in the past for various types of drug crimes,

including drug trafficking crimes.
Richland County, Case No. 17CA31 20

And then, finally, he shows no genuine remorse. He has not

conceded at all he is remorseful about what he did.

Given all of those factors and given the large quantity of heroin and

the problem that it is in this community, I believe the appropriate sentence

is 8 years of actual incarceration on Count 1; 12 months on each of the

other counts, and they are concurrent with Count 1. So the sentence is 8

years There is a mandatory 3 years of Post Release Control.

2T. at 82-84. Accordingly, the trial court had considered the purposes and principles of

sentencing [R.C. 2929.11] as well as the factors that the court must consider when

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation

to state reasons to support its findings. Nor is it required to give a talismanic incantation

of the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.

{¶62} Wilson was sentenced for a felony of the second degree. The sentencing

range for a second-degree felony is two, three, four, five, six, seven, or eight years. R.C.

2929.14(A)(2). Wilson was given a sentence of eight years, which is within the statutory

range. Accordingly, the sentence is not contrary to law.

{¶63} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and recidivism

factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and

advised Wilson regarding post release control. Upon a thorough review, we find the
Richland County, Case No. 17CA31 21

record clearly and convincing supports the sentence imposed by the trial court.

{¶64} While Wilson may disagree with the weight given to these factors by the

trial judge, Wilson’s sentence was within the applicable statutory range for a felony of the

second degree and therefore, we have no basis for concluding that it is contrary to law.

{¶65} Wilson’s third assignment of error is overruled.

{¶66} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, J.,

Wise, John, P.J., and

Hoffman, J., concur