State v. Taylor

[Cite as State v. Taylor, 2019-Ohio-3367.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 107881
v. :

MICHAEL TAYLOR, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 22, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623637-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Debora Brewer, Assistant Prosecuting
Attorney, for appellee.

Law Office of Anna Markovich, and Anna Markovich, for
appellant.

EILEEN T. GALLAGHER, P.J.:

Defendant-appellant, Michael Taylor, appeals from his sentence

following a guilty plea. He raises the following assignment of error for review:

The maximum sentences for defendant’s convictions are not supported
by the record and contrary to law because in sentencing defendant the
 trial court failed to consider the purposes and principles of felony
sentencing factors set forth in R.C. 2929.11 and the sentencing factors
set forth in R.C. 2929.12.

After careful review of the record and relevant case law, we affirm.

I. Procedural and Factual History

In December 2017, Taylor was named in a three-count indictment,

charging him with endangering children in violation of R.C. 2919.22(B)(1); felonious

assault in violation of R.C. 2903.11(A)(3); and endangering children in violation of

R.C. 2919.22(A). Each count contained a repeat violent offender specification. The

indictment stemmed from allegations that Taylor shook a 13-month-old child while

babysitting the child.

In June 2018, Taylor pleaded guilty to felonious assault in violation

of R.C. 2903.11(A)(3), and endangering children in violation of R.C. 2919.22(A). In

exchange for his plea, the state dismissed a single count of endangering children and

the repeat violent offender specifications on all counts. The trial court accepted

Taylor’s guilty plea and referred him to the county probation department for a

presentence investigation report.

A sentencing hearing was held in July 2018. The state sought

imposition of the maximum prison sentencing based on the seriousness of Taylor’s

conduct and the substantial injuries suffered by the victim. The state expressed that,

as a result of Taylor’s conduct, the child is now blind, requires a feeding tube, cannot

walk, and is nonverbal. The trial court also heard from the victim’s mother, who
described the extent of the victim’s permanent injuries and the daily care that he

now requires. Mother stated, in relevant part:

He is not even two and he can’t walk and he can’t eat and he can’t see.
He literally goes to bed and just stays there. He’s like a newborn, he
has no head control. He can’t go for a long car ride, he can’t go to the
store. He literally can’t do anything. When before he did everything,
you know, he walked upstairs and he talked and wanted to eat, and now
he’s just not who he was when he was born, or when he was one. And
he’s never going to be again. The doctors basically say we’re lucky to
have him how he is right now and this is pretty much the most we’re
ever going to get out of him.

The trial court then heard from Taylor. Taylor accepted responsibility

for his actions, expressed remorse, and referenced his problems with drugs and

alcohol. The trial court then sentenced Taylor to eight years in prison on the

felonious assault offense, to be served concurrently with a 36-month prison term on

the endangering children offense. In formulating Taylor’s sentence, the trial court

stated, in relevant part:

Before imposing sentence, this court will note that it has considered the
record, the oral statements made here today, the presentence-
investigation report, as well as the statement of the victim’s mother.

The court has also considered the purposes and principles of
sentencing under Revised Code Section 2929.11, and the seriousness
and recidivism factors relevant to the offense and the offender pursuant
to R.C. 2929.12, and the need for deterrence, incapacitation,
rehabilitation, and restitution. I find that a prison term is consistent
with the purposes and principles of sentencing.

Taylor now appeals from his sentence.

II. Law and Analysis

In his sole assignment of error, Taylor argues his sentence is contrary

to law because the sentence is not supported by the record, and the trial court failed
to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11

and the mitigating factors outlined in R.C. 2929.12.

When reviewing felony sentences, we apply the standard of review set

forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231. R.C. 2953.08(G)(2) provides that an appellate court may increase,

reduce, modify, or vacate and remand a challenged felony sentence if the court

clearly and convincingly finds either that the record does not support certain

specified findings or the sentence is otherwise “contrary to law.”

An “‘appellate court’s standard for review is not whether the

sentencing court abused its discretion.’ As a practical consideration, this means that

appellate courts are prohibited from substituting their judgment for that of the trial

judge.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20 (8th Dist.), quoting

R.C. 2953.08(G)(2). Thus, appellate review of felony sentences under R.C.

2953.08(G)(2) is an “extremely deferential” standard of review. Id. at ¶ 21.

A sentence is contrary to law if it falls outside the statutory range for

the particular degree of offense or if the trial court fails to consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

set forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-

Ohio-5926, ¶ 58. R.C. 2929.11 and 2929.12 are not fact-finding statutes. Therefore,

although the trial court must consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C. 2929.12,

the court is not required to make findings or give reasons for imposing more than
the minimum sentence. State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-

Ohio-3620, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470. A trial court’s general statement that it considered the required

statutory factors, without more, is sufficient to fulfill its obligations under the

sentencing statutes. Id., citing State v. Wright, 8th Dist. Cuyahoga No. 95096, 2011-

Ohio-733, ¶ 4. And because courts have full discretion to impose sentences within

the statutory range, a sentence imposed within the statutory range is “presumptively

valid” if the court considered the applicable sentencing factors. Id., citing State v.

Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

Pursuant to R.C. 2929.11(A), the two 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 * * *.”1 Additionally, 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 committed by similar offenders.” R.C. 2929.11(B).

1 There are now three overriding purposes set forth in R.C. 2929.11(A). See S.B.
66, Section 1, effective October 29, 2018. The third overriding principle is “to promote
the effective rehabilitation of the offender.” Taylor was sentenced prior to the
amendment’s effective date. Moving forward, the trial court will be required to carefully
consider and give equal weight to the new sentencing purpose of promoting “effective
rehabilitation.” It is evident that S.B. 66 was formulated in an effort to reduce mass
incarceration by rehabilitating individuals, expanding prison alternative programs, and
reducing aggregate prison terms. The amendment to R.C. 2929.11 is not inconsequential,
and sentences should start reflecting the legislature’s comprehensive goals.
 Furthermore, in imposing a felony sentence, “the court shall consider

the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the

conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the

likelihood of the offender’s recidivism * * *.” R.C. 2929.12.

When a sentence is imposed solely after consideration of the factors

in R.C. 2929.11 and 2929.12, “[a]n 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, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23.

Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce 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.

In this case, there is no dispute that the trial court imposed a prison

term within the applicable statutory range and expressly stated that it considered

R.C. 2929.11 and 2929.12 when formulating Taylor’s sentence. Nevertheless, Taylor

contends that the imposition of the maximum prison term for each offense is not

supported by the record. Taylor submits that “the trial court failed to adhere to the

overall purposes and principles goals of sentencing expressed in R.C. 2929.11 and

failed to balance the recidivism and serious factors.”
 On appeal, Taylor focuses on the factors enumerated in R.C.

2929.12(D)(4) (acknowledgment of his drug abuse) and (E)(5) (his genuine

expression of remorse), respectively. He suggests that his convictions for felonious

assault and child endangerment were “not indicative of his typical behavior,” but

resulted from his use of illegal substances to “self-medicate.” Viewing his argument

in its entirety, it is evident that Taylor finds the prison terms imposed in this case to

be excessive. However, as this court has previously explained:

“‘The weight to be given to any one sentencing factor is purely
discretionary and rests with the trial court.’” State v. Price, 8th Dist.
Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert,
8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v.
Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A lawful
sentence “‘cannot be deemed contrary to law because a defendant
disagrees with the trial court’s discretion to individually weigh the
sentencing factors. As long as the trial court considered all sentencing
factors, the sentence is not contrary to law and the appellate inquiry
ends.’” Price at id., quoting Ongert at ¶ 12.

State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15.

In an effort to challenge the adequacy of the trial court’s statutory

considerations, Taylor is merely asking this court to substitute our judgment for that

of the trial court, which, as stated, appellate courts are not permitted to do. State v.

McCoy, 8th Dist. Cuyahoga No. 107029, 2019-Ohio-868, ¶ 19 (“We cannot

substitute our judgment for that of the sentencing judge.”). Moreover, by asking this

court to view the seriousness and scope of his conduct in light of the relevant

mitigating factors, Taylor is encouraging this court to independently weigh the

sentencing factors, which appellate courts are also not permitted to do. Ongert at
¶ 14; Price at ¶ 20; Bailey at ¶ 15; State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-

1401, 80 N.E.3d 431, ¶ 10; and State v. Anderson, 8th Dist. Cuyahoga No. 103490,

2016-Ohio-3323, ¶ 9.

While Taylor references certain sentencing factors that weigh in his

favor, he ignores the relevant factors that apply and were relied on by the trial court

in crafting Taylor’s sentence. Here, the record reflects that the trial court carefully

considered the relevant seriousness factors, including the age of the victim, Taylor’s

position of control over the victim, the nature of Taylor’s conduct, and the significant

and lasting injuries sustained by the victim. Regarding these factors, Taylor’s

presentence investigation report reflects that Taylor inflicted “blunt force trauma”

to a then 13-month child who was under his supervision and care. The child

“suffered serious physical harm, including a fractured skull, retinal hemorrhaging,

and bleeding on his brain.” In addition, the trial court considered all relevant

recidivism factors, including Taylor’s criminal history, his pattern of drug or alcohol

abuse, and information that Taylor was on probation at the time the offense

occurred in this case. Regarding those factors, Taylor’s presentence investigation

report assessed him as posing a “high” risk of recidivism.

Under the totality of these circumstances, we are unable to conclude,

by clear and convincing evidence, that the trial court’s considerations under R.C.

2929.11 and 2929.12 are not supported by the record. In this case, there is no

objective information in the record to suggest the trial court (1) failed to consider
R.C. 2929.11 and 2929.12 in formulating the sentence, or (2) relied on demonstrably

false or inaccurate information when making these considerations.

Accordingly, Taylor’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY