[Cite as State v. Roberts, 2019-Ohio-49.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-27
:
v. : Trial Court Case No. 2017-CR-540
:
MARCUS ROBERTS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 11th day of January, 2019.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Marcus Roberts appeals from his conviction and sentence on one count of
improperly discharging a firearm at or into a habitation.
{¶ 2} In his sole assignment of error, Roberts challenges the trial court’s imposition
of a statutory maximum prison sentence.
{¶ 3} The record reflects that Roberts was indicted on the following seven felony
charges, some of which included specifications: discharging a firearm on or near
prohibited premises, improperly discharging a firearm at or into a habitation, improper
handling of a firearm in a motor vehicle (two counts), carrying a concealed weapon,
receiving stolen property, and aggravated drug possession. The charges stemmed from
(1) his role as the driver of a car from which a passenger fired shots into an occupied
residence and (2) his own possession of a firearm and drugs later that day. (Doc. # 13;
Plea Tr. at 3-4).
{¶ 4} Following plea negotiations, Roberts pled guilty to improperly discharging a
firearm at or into a habitation, a second-degree felony. In exchange, the State dismissed
all other counts and specifications. It also agreed not to pursue any charges related to
another shooting a few days earlier. The trial court accepted the plea and found Roberts
guilty. (Doc. # 23). After reviewing a presentence investigation (PSI) report, the trial court
imposed a statutory maximum eight-year prison sentence and other sanctions. (Doc. #
24).
{¶ 5} On appeal, Roberts contends the record demonstrates that the trial court did
not consider the statutory “seriousness” and “recidivism” factors. His entire argument is
as follows:
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Here, the record fails to support a finding that the trial court actually
considered the recidivism factors set forth in R.C. 2929.12(D) and (E). This
is true because the trial court stated its “only” reason for imposing this
maximum sentence, which did not include these factors. Tr. 9.
Further, the trial court did not consider these factors because if it did,
it would have found that the likelihood that Roberts would commit another
offense was low: For one, those factors demonstrate that Roberts would be
unlikely to commit a future crime. Roberts had no prior felony conviction,
nor was he on probation at the time of this offense. R.C. 2929.12(D). He
had a prior misdemeanor conviction from Fairborn, in which he successfully
completed probation and thus demonstrated that he is amenable to
probation.
Further, the record fails to support a finding that the trial court actually
considered the seriousness of Roberts’ crime, as compared to other similar
offenses. R.C. 2929.12(B) and (C). Because while no one condones
Roberts’ offense, nor any firing into a habitation for that matter, the facts in
this case do not demonstrate that Roberts was in a position of trust; used
his relationship to facilitate the offense, or any other factor that would make
this offense more serious than others. R.C. 2929.12(B). What is more,
Roberts was the driver, not the person who fired into the habitation. Tr. 4.
In short, because the record fails to support a conclusion that the trial
court actually considered the seriousness and recidivism factors as
required, its decision should be reversed. And because the record does not
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support the maximum sentence that Roberts received, the trial court abused
its discretion in imposing it.
(Appellant’s brief at 3-4).
{¶ 6} When reviewing felony sentences, appellate courts apply the standard of
review found in R.C. 2953.08(G)(2), not an abuse of discretion standard. State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2),
an appellate court may increase, reduce, or modify a sentence, or it may vacate the
sentence and remand for resentencing, only if it “clearly and convincingly” finds either (1)
that the record does not support certain specified findings or (2) that the sentence
imposed is contrary to law.
{¶ 7} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum * * * sentences.” State v. King, 2013-Ohio-2021, 992
N.E.2d 491, ¶ 45 (2d Dist.). However, a trial court must consider the statutory criteria that
apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.
State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.),
citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. With regard
to Roberts’ assignment of error, R.C. 2929.12(B) sets forth nine factors indicating that an
offender’s conduct is more serious than conduct normally constituting the offense,
whereas R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct is
less serious than conduct normally constituting the offense. Similarly, R.C. 2929.12(D)
and (E) each lists five factors that trial courts are to consider regarding an offender being
more or less likely to commit future crimes.
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{¶ 8} Although statutory maximum sentences do not require any of the findings
specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found it appropriate “for
appellate courts to review those sentences that are imposed solely after 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.” Marcum at ¶ 23.
{¶ 9} As set forth above, Roberts does not suggest that his statutory maximum
eight-year sentence is contrary to law. Rather, he claims the record clearly and
convincingly does not support a finding that the trial court considered the “seriousness”
and “recidivism” factors in R.C. 2929.12(B), (C), (D), and (E). Having reviewed the record,
we find this argument to be unpersuasive.
{¶ 10} As a threshold matter, the trial court explicitly stated in its judgment entry
that it did consider the various factors set forth in R.C. 2929.12. (Doc. # 24 at 1). Roberts
contends this assertion is demonstrably false, however, because the trial court’s “only”
stated reason for imposing a maximum sentence did not include a reference to the R.C.
2929.12 factors. At sentencing, the trial court addressed Roberts and provided the
following explanation for its sentence:
It is true that you don’t have a prior felony record, but you have a
prior weapons offense. But to be honest with you that really doesn’t even
matter to the Court. The fact that you are not willing to give up the shooters
doesn’t even matter to the Court.
The only thing that matters to the Court is that you were the driver of
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a vehicle in a drive-by shooting, and that you were afforded a significant
amount of leniency by the dismissal of gun specs and other criminal
offenses.
(Sentencing Tr. at 9).
{¶ 11} The trial court did not say the only thing it considered was Roberts’
participation in a drive-by shooting and the fact that other charges and specifications were
dismissed. Instead, it said this was what really mattered to it for sentencing purposes.
Nothing in the passage quoted above clearly and convincingly demonstrates that the trial
court violated its obligation to consider the statutory “seriousness” and “recidivism”
factors. The trial court simply explained that it placed weight on the fact that Roberts
already had benefitted from a plea bargain that resulted in a number of serious charges
and specifications being dismissed. This court has recognized that the statutory
seriousness and recidivism factors are not exclusive. In addition to them, a trial court may
consider facts related to charges dismissed under a plea agreement and allegations
contained in a PSI report. State v. Wiles, 2d Dist. Clark No. 2017-CA-69, 2018-Ohio-3077,
¶ 19, 25; State v. Bautista, 2d Dist. Clark No. 2015-CA-74, 2016-Ohio-5436, ¶ 12.
{¶ 12} In the remainder of his argument, Roberts engages in his own weighing of
the “seriousness” and “recidivism” factors. He contends he is unlikely to commit another
crime. He notes that he has no prior felony convictions and that he has completed
probation for a misdemeanor. With regard to the seriousness of his offense, he points out
that he was not the actual shooter. He also asserts that none of the statutory “more
serious” factors apply. Therefore, he reasons that the record does not support an eight-
year sentence. Because the trial court reached a contrary conclusion and did not address
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the “seriousness” and “recidivism” factors individually, Roberts infers that the trial court
must not have considered them.
{¶ 13} Upon review, we find Roberts’ argument to be unpersuasive. The trial court
was not required to discuss the factors in R.C. 2929.12(B), (C), (D), and (E) at the
sentencing hearing. State v. Sparks, 2d Dist. Montgomery No. 2017-CA-95, 2018-Ohio-
3298, ¶ 8. That being so, we cannot infer from its failure to mention the factors cited by
Roberts that it did not consider them. Again, the trial court made clear in its judgment
entry that it did consider the “seriousness” and “recidivism” factors among other things.
{¶ 14} Nor can we infer from the trial court’s failure to impose a more lenient
sentence that it necessarily did not consider the R.C. 2929.12 factors. Contrary to
Roberts’ argument, his statutory maximum sentence is not clearly and convincingly
unsupported by the record. Roberts admitted being the driver in a drive-by shooting and,
in so doing, he was acting in concert with a gunman who fired multiple shots into a
residence. Later that day, Roberts was located and found to be carrying a loaded .40
caliber Smith and Wesson handgun, with a round in the chamber, in a mostly concealed
holster on his hip. That weapon was reported stolen out of Spokane, Washington. He also
told officers he owned a fully loaded .40 caliber Glock 23 that was on the floorboard of
the vehicle he had been driving. At the time of the drive-by shooting, he still was on
probation for a misdemeanor conviction involving the use of a weapon while intoxicated.
Roberts had five additional prior misdemeanor convictions, including two for assault.
Roberts was also in possession of 1½ Percocet pills. In exchange for his guilty plea to
one count of improperly discharging a firearm at or into a habitation, Roberts received
significant benefits. The State agreed not to proceed on any charges against him involving
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another shooting that had occurred days before the drive-by shooting. The State also
dismissed six other felony charges and related specifications in the present case. (Plea
Tr. at 5). Based on our review of the record, including the PSI report, we do not find that
the evidence clearly and convincingly fails to support Roberts’ eight-year prison sentence.
{¶ 15} The assignment of error is overruled, and the judgment of the Clark County
Common Pleas Court is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
Elizabeth L. McCormick
April F. Campbell
Hon. Douglas M. Rastatter