[Cite as State v. Swaney, 2020-Ohio-210.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 28357 & 28515
:
v. : Trial Court Case Nos. 2018-CR-3334
: & 2019-CR-340
NICHOLAS R. SWANEY :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 24th day of January, 2020.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419
Attorney for Defendant-Appellant
.............
FROELICH, J.
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{¶ 1} Nicholas R. Swaney pled guilty to having weapons while under disability, a
third-degree felony, in Montgomery C.P. No. 2018-CR-3334 and to breaking and entering
and theft, both fifth-degree felonies, in Montgomery C.P. No. 2019-CR-340. The trial
court found Swaney guilty and imposed concurrent sentences totaling 24 months in
prison.
{¶ 2} Swaney appeals from his convictions, claiming that his pleas were not made
knowingly, intelligently, and voluntarily, that the trial court acted unlawfully by interjecting
itself into the plea bargaining process, and that his sentences were contrary to law and
unsupported by the record. For the following reasons, the trial court’s judgments will be
affirmed.
I. Factual and Procedural History
{¶ 3} In September 2018, in Case No. 2018-CR-3334, a grand jury indicted
Swaney for having weapons while under disability, in violation of R.C. 2923.13(A)(2).
The trial court set bail of a surety bond in the amount of $2,500. Swaney initially pled
not guilty. On October 10, 2018, however, Swaney appeared with counsel and pled
guilty to the charged offense.
{¶ 4} At the beginning of the plea hearing, defense counsel told the trial court that
Swaney was “prepared to plead guilty as charged. The State has agreed to defer to the
Court as to sentencing.” Defense counsel asked the court to consider “COR to PSI so
that Mr. Swaney could show the Court that he is amenable to community control
sanctions.” The prosecutor indicated that she would defer to the court on the conditional
own recognizance bond request. The court told Swaney that it would take his plea and
change his bond to COR. The court emphasized that “[i]f you don’t show up for
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everything, if you get in any trouble, if you don’t show up for final disposition that will be
weighing very heavily against you. You might want to just sit there for two weeks if you
don’t think you can do it.” The court stated that it was “looking at community control
sanctions for you but if you screw up between now and when you’re supposed to come
back that may not be my first option.” Swaney stated that he understood.
{¶ 5} The trial court then engaged in a Crim.R. 11 plea colloquy, during which it
asked Swaney if he were under the influence of drugs or alcohol, his level of education,
if he had any difficulty reading the plea form, and if he were on probation or parole for any
other offense. (He was not.) The court informed Swaney of the constitutional rights that
he was waiving by entering a plea, and Swaney acknowledged that he was giving up
those rights.
{¶ 6} The trial court told Swaney of the possible prison terms for having weapons
while under disability, as well as the possible financial sanctions. The court informed
Swaney that he would be subject to three years of post-release control if he were
sentenced to prison. The court also told Swaney that he was eligible for community
control sanctions, including various residential and non-residential sanctions. The court
indicated that if he were sentenced to community control sanctions, he would be required
to serve 36 months in prison if he violated community control. At the court’s request, the
State provided the factual basis for the charge using the language of the indictment. The
court asked Swaney how he wished to plead based on those facts. Swaney pled guilty.
{¶ 7} The court asked Swaney to read the plea form and to sign it “[i]f you
understand what’s on it, what we’ve gone over and this is your voluntary plea.” Swaney
signed the plea form. The plea form included a statement that “I understand the effect
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of my plea(s) and that the Court, upon acceptance of my plea(s), may proceed with
judgment and sentence.” The trial court accepted Swaney’s plea, ordered a presentence
investigation, and scheduled sentencing for November 7, 2018.
{¶ 8} Swaney failed to appear for sentencing as required, and the court issued a
capias for his arrest. It is unclear whether Swaney had participated in the presentence
investigation; the presentence investigation report (PSI) is not part of the record.
Swaney was arrested on January 15, 2019.
{¶ 9} On March 13, 2019, in Case No. 2019-CR-340, Swaney was indicted for
breaking and entering (unoccupied structure – barn) and for theft (without consent -
$1,000 or more, but less than $7,500) based on events that allegedly occurred on
February 27, 2018. A deputy sheriff served Swaney with the indictment at the
Montgomery County Jail. Swaney pled not guilty to the new charges on March 19.
{¶ 10} On March 27, 2019, the trial court held a combined sentencing hearing on
the weapons charge in Case No. 2018-CR-3334 and a plea/sentencing hearing on
Swaney’s new charges in Case No. 2019-CR-340. The trial court imposed 24 months in
prison for having weapons while under disability in Case No. 2018-CR-3334, to be served
concurrently with the sentences in Case No. 2019-CR-340. The court accepted
Swaney’s guilty pleas to both breaking and entering and theft in Case No. 2019-CR-340
and imposed 12 months in prison on each count, to be served concurrently with each
other and to the sentence in Case No. 2018-CR-3334. The court credited Swaney with
122 days of jail time credit.
{¶ 11} Swaney appeals from his convictions.1 In his first and second assignments
1 On October 1, 2019, we granted Swaney’s motion for a delayed appeal, pursuant to
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of error, Swaney claims that his pleas were not made knowingly, intelligently, and
voluntarily, and that he was denied due process. He further claims in his fourth
assignment of error that the trial court failed to determine his understanding of the
maximum penalties involved. Swaney argues that the trial court impermissibly had
“controlling involvement” in the plea bargaining process when it discussed Swaney’s
possible sentences with him. Swaney’s third assignment of error challenges his
sentences.
II. Felony Plea Standards
{¶ 12} “An appellate court must determine whether the record affirmatively
demonstrates that a defendant’s plea was knowing, intelligent, and voluntary[.]” State v.
Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama,
395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a defendant’s plea is not
knowing, intelligent, and voluntary, it “has been obtained in violation of due process and
is void.” Id. “In order for a plea to be given knowingly and voluntarily, the trial court
must follow the mandates of Crim.R. 11(C).” State v. Brown, 2d Dist. Montgomery Nos.
24520, 24705, 2012-Ohio-199, ¶ 13.
{¶ 13} Crim.R. 11(C)(2) requires a trial court to address the defendant personally
and (a) determine that the defendant is making the plea voluntarily, with an understanding
of the nature of the charges and the maximum penalty, and, if applicable, that the
defendant is not eligible for probation or for the imposition of community control sanctions;
(b) inform the defendant of and determine that the defendant understands the effect of
the plea of guilty and that the court, upon acceptance of the plea, may proceed with
App.R. 5(A), in Montgomery App. No. 28515 (Case No. 2019-CR-340).
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judgment and sentencing; and (c) inform the defendant and determine that he or she
understands that, by entering the plea, the defendant is waiving the rights to a jury trial,
to confront witnesses against him or her, to have compulsory process for obtaining
witnesses, and to require the State to prove guilt beyond a reasonable doubt at a trial at
which he or she cannot be compelled to testify against himself or herself. State v. Brown,
2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.
{¶ 14} The Supreme Court of Ohio has urged trial courts to comply literally with
Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.
The trial court must comply strictly with Crim.R. 11(C)(2)(c), as it pertains to the waiver of
federal constitutional rights. Id. at ¶ 31. However, because Crim.R. 11(C)(2)(a) and (b)
involve non-constitutional rights, the trial court need comply only substantially with those
requirements. E.g., State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d
766, ¶ 11. “Substantial compliance means that under the totality of the circumstances
the defendant subjectively understands the implications of his plea and the rights he [or
she] is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
But “[w]hen the trial judge does not substantially comply with Crim.R. 11 in
regard to a nonconstitutional right, reviewing courts must determine
whether the trial court partially complied or failed to comply with the rule.”
(Emphasis sic.) Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d
462, at ¶ 32. “If the trial judge partially complied, e.g., by mentioning
mandatory postrelease control without explaining it, the plea may be
vacated only if the defendant demonstrates a prejudicial effect.” Id. But if
the trial court completely failed to comply with the rule, the plea must be
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vacated. Id. Complete failure “ ‘to comply with the rule does not implicate
an analysis of prejudice.’ ” Id., quoting State v. Sarkozy, 117 Ohio St.3d
86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
Bishop at ¶ 19. See also State v. McGlinch, 2019-Ohio-1380, __ N.E.3d __, ¶ 28 (2d
Dist.).
{¶ 15} Plea agreements are generally made between the State and a defendant.
State v. Sage, 2d Dist. Montgomery No. 25453, 2013-Ohio-3048, ¶ 23. Unless the court
involves itself in the plea negotiations or agrees to the terms of the agreement, the trial
court is not bound by the plea agreement, and the court may determine the appropriate
sentence for the charges to which the defendant has pled guilty or no contest. Id., citing
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28.
{¶ 16} The Ohio Supreme Court has held that judicial participation in plea
negotiations does not render a plea invalid per se, but such involvement requires careful
scrutiny to determine if “the judge’s active conduct could lead a defendant to believe he
cannot get a fair trial because the judge thinks that a trial is a futile exercise or that the
judge would be biased against him at trial.” State v. Mills, 2d Dist. Montgomery No.
26619, 2015-Ohio-5385, ¶ 11, quoting State v. Byrd, 63 Ohio St.2d 288, 293-94, 407
N.E.2d 1384 (1980). “Byrd stands for the proposition that a plea of guilty or no contest
will be presumed to be coerced if the trial judge takes a partisan position in support of the
plea.” State v. Chenoweth, 2d Dist. Montgomery No. 15846, 1997 WL 630018, *2 (Sept.
19, 1997).
{¶ 17} We have repeatedly stated that, when the trial court promises a certain
sentence at a plea hearing, that promise “becomes an inducement to enter a plea, and
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unless that sentence is given, the plea is not voluntary.” E.g., State v. Anderson, 2d Dist.
Montgomery No. 26056, 2014-Ohio-4699, ¶ 9; State v. Gilroy, 195 Ohio App.3d 173,
2011-Ohio-4163, 959 N.E.2d 19, ¶ 22 (2d Dist.); State v. Layman, 2d Dist. Montgomery
No. 22307, 2008-Ohio-759, ¶ 15, quoting State v. Bonnell, 12th Dist. Clermont No.
CA2001-12-094, 2002-Ohio-5882.
III. Voluntariness and Lawfulness of Swaney’s Pleas
{¶ 18} We find nothing in the trial court’s conduct at either plea hearing that
rendered Swaney’s pleas unlawful or other than knowing, intelligent, and voluntary.
A. Case No. 2018-CR-3334
{¶ 19} During the plea hearing for the charge of having weapons while under
disability (Case No. 2018-CR-3334), the trial court initially addressed Swaney’s possible
sentence in the context of defense counsel’s request (made prior to the plea colloquy)
that Swaney be released on an own-recognizance bond so that he could demonstrate his
amenability to community control. The trial court told Swaney that it was “looking at
community control sanctions for you but if you screw it up between now and when you’re
supposed to come back that may not be my first option.” By making this and similar
statements to Swaney, the trial court did not interject itself into the plea bargaining
process. It merely emphasized to Swaney that any failure to comply with the conditions
of the own-recognizance bond would negatively affect Swaney’s ultimate sentence. At
no time did the trial court promise that Swaney would receive a particular sentence or
encourage Swaney to enter a guilty plea in order to receive a more lenient sentence.
{¶ 20} During the court’s subsequent plea colloquy, the court informed Swaney of
the maximum sentence that he faced for having weapons while under disability, saying
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that he could “be sentenced to any following – financial sanctions including a fine of up to
$10,000, court costs, restitution, and other financial sanctions.” The court further told
Swaney that he faced “a possible prison term of 9, 12, 18, 24, 30, or 36 months.” The
court notified Swaney of the post-release control obligation if a prison sentence were
imposed. The court also told Swaney that he was eligible for community control
sanctions for a period of up to five years, which could include “community residential
sanctions including up to six months in jail or the MonDay, STOP program or inpatient
treatment * * * [and] nonresidential sanctions – outpatient drug treatment, community
service work, classes for probation, getting and keeping a job, having a curfew, things
like that, not having guns.” The court told Swaney that he would be required to serve 36
months in prison if he were placed on community control and violated the conditions of
his community control. At the court’s request, the prosecutor read the “facts” as alleged
in the indictment. The court thus complied with Crim.R. 11(C)(2)(b).
{¶ 21} The trial court strictly complied with its obligation to inform Swaney of and
determine that he understood the constitutional rights that he was waiving by entering his
plea. The trial court did not inform Swaney that a guilty plea was a complete admission
of guilt, but Swaney read and signed his plea form, which indicated that he understood
the nature of his plea and understood that the court could proceed immediately to
sentencing. The record reflects that Swaney’s plea to having weapons while under
disability in Case No. 2018-CR-3334 was made knowingly, intelligently, and voluntarily.
{¶ 22} After accepting Swaney’s plea, the court reiterated that it was changing
Swaney’s bond to “COR to PSI” and that “any problems, they’re going to really weigh
heavily against you. And I mean it on that. I take these gun charges seriously.” Again,
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the court’s comments simply reiterated that any failure to comply with the terms of the
bond could affect the sentence ultimately imposed.
B. Pleas in Case No. 2019-CR-340
{¶ 23} Swaney emphasizes that the trial court had “controlling involvement” in the
plea negotiations in Case No. 2019-CR-340. At the beginning of the March 27, 2019
hearing, defense counsel and the trial court discussed the potential plea agreement:
[DEFENSE COUNSEL]: Your Honor, I’ve discussed the agreement with Mr.
Swaney this morning that if he were to plead guilty to both counts of the
new indicted charge, that the B and E and theft were felonies of the fifth
degree, that he would receive a concurrent sentence for the case for which
he’s before the Court for sentencing [i.e., Case No. 2018-CR-3334].
THE COURT: Correct. So what are you doing?
[DEFENSE COUNSEL]: We’re going to tender the plea.
THE COURT: Okay.
[DEFENSE COUNSEL]: And we would waive any additional pre-sentence
investigation.
***
THE COURT: Okay. So it’s breaking and entering and a theft. Those are
both felonies of the fifth degree. So I would give you 12 months on each
of those, 24 months on the other one concurrent to each other and then
since it’s the [sic] concurrent you get 122 days jail time credit. Okay?
THE DEFENDANT: Yeah.
{¶ 24} The court then conducted its Crim.R. 11 colloquy. The court informed
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Swaney of the constitutional rights he was waiving by pleading guilty to the two charges.
The court told him that he could be ordered to pay financial sanctions. The court further
told Swaney that he could “be sentenced to a prison term of between six and 12 months
on each count,” but specified that it was “going to sentence you to 24 months on the case
pending sentence and 12 months on these two.” Swaney stated that he understood.
The court told Swaney that, since it was “sending you to prison, following your release
you could be placed on post-release control for a period of three years.” As to community
control, the court stated: “Technically, you’re eligible for community control sanctions but
we’re not even going to consider it. Do you understand that?” Swaney responded,
“Yes.”
{¶ 25} The prosecutor read the facts, as stated in the indictment, for each of the
charges. When asked how he pleaded based on those facts, Swaney responded,
“Guilty.” Swaney read and signed the plea form, which stated that he understood the
nature of his plea and that he could be sentenced immediately.
{¶ 26} The record does not support Swaney’s contentions that his pleas were not
made knowingly, intelligently, and voluntarily, or that the trial court acted improperly. At
the beginning of the March 27 hearing, defense counsel indicated to the court that she
had discussed with Swaney a proposed plea agreement whereby he would receive
concurrent sentences in both Case Nos. 2018-CR-3334 and 2019-CR-340 if he were to
plead guilty to the two fifth-degree felonies. (The prosecutor did not comment on the
proposed plea agreement at the plea hearing.) The court indicated, prior to conducting
the Crim.R. 11 colloquy, that it would impose those sentences concurrently, in
accordance with the plea agreement.
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{¶ 27} It is unclear from the record whether the trial court discussed with counsel
its intended sentences prior to the hearing. Nevertheless, prior to the plea colloquy, the
trial court notified Swaney that it intended to impose a 24-month sentence in Case No.
2018-CR-3334 and 12-month sentences in Case No. 2019-CR-340, all to be served
concurrently. The court did not suggest that Swaney would receive harsher sentences
or consecutive sentences if he did not enter guilty pleas in Case No. 2019-CR-340. And,
immediately following the entry of his guilty pleas, the court imposed the concurrent
sentences, as previously stated. Swaney’s plea was not rendered involuntary or
contrary to law merely because the trial court informed him of the sentences it would
impose if he pled to the charges.
{¶ 28} Swaney further argues that he did not understand the maximum penalty in
Case No. 2019-CR-340, because the trial court did not inform him that he faced a
maximum of five years in prison if his sentences were run consecutively (12 months + 12
months + 36 months in Case No. 2018-CR-3334). However, such an advisement
generally is not required. As stated by the Ninth District:
Usually, a trial judge is not required to advise a defendant at the time of his
plea that consecutive sentences may be imposed. See State v. Johnson,
40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), syllabus. In Johnson, the
Court reasoned that “the decision of whether the criminal defendant is to
serve the sentences for all his crimes consecutively or concurrently is a
matter of sentencing discretion” and “[t]he exercise of such discretion”
occurs at the time of sentencing not when the plea is entered. Id. at 133-
134, 532 N.E.2d 1295.
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State v. Bailey, 2016-Ohio-4937, 68 N.E.3d 416, ¶ 11 (9th Dist.). An exception exists
when a statute requires that sentences be served consecutively, e.g., Bailey at ¶ 13, but
that circumstance did not exist in this case. Regardless, the trial court ordered all the
sentences to be served concurrently, as promised. Swaney’s argument lacks merit.
{¶ 29} Swaney’s first, second, and fourth assignments of error are overruled.
IV. Swaney’s sentences
{¶ 30} In his third assignment of error, Swaney claims that “the record does not
support Appellant’s sentence(s) under the purposes and principles in R.C. §2929.11 and
the seriousness and recidivism factors in R.C. §2929.12.” However, Swaney’s appellate
brief focuses solely on his understanding of the possible maximum sentence; he does not
address the length of the sentences imposed.
{¶ 31} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
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. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,
2017-Ohio-4097, ¶ 6.
{¶ 32} “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 or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
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court must consider the statutory policies 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.
{¶ 33} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others, to punish the offender, and to promote the effective rehabilitation of
the offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” R.C. 2929.11(A). The court must “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.” Id. R.C.
2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony sentencing * * *,
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.”
{¶ 34} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth
four factors indicating that an offender’s conduct is less serious than conduct normally
constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts
are to consider regarding the offender’s likelihood of committing future crimes. Finally,
R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service
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record, if any.
{¶ 35} Prior to imposing sentence, the trial court asked defense counsel if she had
anything to say on Swaney’s behalf. Defense counsel responded, “No, we’ve had the
opportunity to discuss this. I appreciate that. Thank you, Judge.” Swaney declined to
say anything on his own behalf. The court did not ask the prosecutor if she wished to
comment on Swaney’s sentence. The trial court then imposed sentence in each case.
The court stated that, for Case No. 2018-CR-3334, it had “consider[ed] the purposes and
principles of sentencing in the Revised Code Section 2929.11 and the seriousness and
recidivism factors in the Ohio Revised Code Section 2929.12.” For Case No. 2019-CR-
340, it indicated that it had considered “the same statutes.” The 24-month sentence in
Case No. 2018-CR-3334 and the 12-month sentences for Case No. 2019-CR-340 were
within the statutory ranges for the charged offenses. See R.C. 2929.14(A)(3)(b) and
2929.14(A)(5). Because Swaney previously had pleaded guilty to a felony offense,
mandatory community control for the fifth-degree felonies did not apply. See R.C.
2929.13(B)(1)(a).
{¶ 36} Based on the limited record before us, we cannot conclude that Swaney’s
sentences were contrary to law or clearly and convincingly unsupported by the record.
Swaney’s third assignment of error is overruled.
V. Conclusion
{¶ 37} The trial court judgments will be affirmed.
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TUCKER, P.J. and DONOVAN, J., concur.
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Copies sent to:
Mathias H. Heck
Lisa M. Light
Carlo C. McGinnis
Hon. Barbara P. Gorman
State v. Swaney
Combined Opinion