State v. Anderson

[Cite as State v. Anderson, 2020-Ohio-4083.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-80
:
v. : Trial Court Case No. 2019-CR-506
:
EQUAN ANDERSON, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

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OPINION

Rendered on the 14th day of August, 2020.

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JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee

BRIAN D. BRENNAMAN, Atty. Reg. No. 0088988, 1616 Turner Road, Xenia, Ohio 45385
Attorney for Defendant-Appellant

.............

WELBAUM, J.
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{¶ 1} Defendant-appellant, Equan Anderson, Jr., appeals from his conviction in the

Clark County Court of Common Pleas after he pled guilty to two counts of violating a

protection order. In support of his appeal, Anderson challenges the aggregate five-year

prison sentence imposed by the trial court. Specifically, Anderson contends that: (1) the

record fails to support the trial court’s decision to impose consecutive sentences; (2) the

record fails to support the trial court’s decision to impose an aggregate five-year prison

term; and (3) the five-year prison term was otherwise contrary to law. For the reasons

outlined below, we disagree with Anderson’s claims; therefore, the judgment of the trial

court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On August 13, 2019, a Clark County Grand Jury returned a ten-count

indictment charging Anderson with two counts of kidnapping, six counts of violating a

protection order, one count of disrupting public service, and one count of intimidation of

a victim. The charges stemmed from several incidents involving Anderson’s ex-

girlfriend, A.P., who at the time had a civil protection order against Anderson. The

incidents spanned between July 18, 2019, and August 12, 2019. Relevant to this appeal

are the incidents that took place on July 18, 2019.

{¶ 3} According to the bill of particulars, on July 18, 2019, Anderson pulled A.P.

out of her vehicle, punched her in the head and face, and prevented her from leaving the

area where they were located in Springfield, Ohio. Anderson also took A.P.’s cell phone

so that she could not call 9-1-1 for help and chased her as she fled the scene. It was

also alleged that later the same day, Anderson went to the backyard of A.P.’s home where
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he threatened to harm A.P. if she cooperated with law enforcement.

{¶ 4} On September 19, 2019, Anderson entered into a plea agreement with the

State whereby he agreed to plead guilty to two counts of violating a protection order under

R.C. 2919.27(A)(1), both felonies of the third degree. In exchange for Anderson’s guilty

plea, the State agreed to dismiss the remaining eight counts in the indictment, as well as

a burglary charge in a separate case, Clark C.P. No. 2019-CR-430, in which A.P. was

also the victim. The parties further agreed that a presentence investigation (“PSI”) would

be conducted.

{¶ 5} On October 11, 2019, Anderson appeared for sentencing and made an oral

motion to withdraw his guilty plea. The trial court scheduled a hearing on Anderson’s

motion to take place on October 16, 2019. At that hearing, Anderson presented a

notarized letter allegedly written by A.P. that recanted her allegations against him.

Anderson also presented testimony from the notary public who witnessed A.P. sign the

letter. In order to give Anderson the opportunity to have A.P. testify regarding the letter,

the trial court scheduled a final hearing on the motion to take place on October 31, 2019.

{¶ 6} At the final hearing, A.P. appeared and confirmed that she wrote and signed

the letter before a notary public. However, A.P. testified that the statements in the letter

were false and were not her words. A.P. testified that Anderson called her from jail and

persuaded her to write the statements in the letter in exchange for $30. A.P. testified

that she simply copied what Anderson told her to write. In light of A.P.s testimony, the

trial court overruled Anderson’s motion to withdraw his guilty plea.

{¶ 7} On November 6, 2019, Anderson once again appeared before the trial court

for sentencing. After reviewing the PSI and hearing statements from counsel and
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Anderson, the trial court sentenced Anderson to two years in prison for the first count of

violating a protection order and three years in prison for the second count. The trial court

ordered those sentences to be served consecutively for a total, aggregate prison term of

five years.

{¶ 8} Anderson now appeals from his conviction, raising three assignments of error

for review. Because all of Anderson’s assignments of error challenge the five-year

prison sentence imposed by the trial court, we will review the assignments of error

together.

Assignments of Error

{¶ 9} Anderson contends that: (1) the record fails to support the trial court’s

decision to impose consecutive sentences; (2) the record fails to support the trial court’s

decision to impose an aggregate, five-year prison term; and (3) the five-year prison term

was otherwise contrary to law.

{¶ 10} When reviewing felony sentences, appellate courts must 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, ¶ 7. Pursuant to the plain language of R.C. 2953.08(G)(2),

this court may vacate or modify Anderson’s sentence only if it determines by clear and

convincing evidence that: (1) that the record did not support the trial court’s findings under

relevant statutes; or (2) that the sentence was otherwise contrary to law. Id. at ¶ 1.

Consecutive Sentences were Not Unsupported By the Record

{¶ 11} As previously noted, Anderson first claims that the record failed to support
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the imposition of consecutive sentences. In order to impose consecutive sentences, the

trial court was required to make certain findings under R.C. 2929.14(C)(4), which is one

of the relevant statutes referred to in R.C. 2953.08(G)(2). Therefore, in order to reverse

the consecutive nature of Anderson’s sentences, we must clearly and convincingly find

that the record did not support the trial court’s findings under R.C. 2929.14(C)(4). State

v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). This is “a very deferential

standard of review,” as “the question is not whether the trial court had clear and

convincing evidence to support its findings, but rather, whether we clearly and

convincingly find that the record failed to support the trial court’s findings.” (Citations

omitted.) Id. In applying that standard of review, “the consecutive nature of the trial

court’s sentencing should stand unless the record overwhelmingly supports a contrary

result.” (Citation omitted.) Id. at ¶ 39.

{¶ 12} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive

sentences if it finds that: (1) consecutive service is necessary to protect the public from

future crime or to punish the offender; (2) consecutive sentences are not disproportionate

to the seriousness of the offender’s conduct and to the danger the offender poses to the

public; and (3) one or more of the following three findings are satisfied.

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code,

or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the
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multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender’s

conduct.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 13} “[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. In this case, the trial

court made all the required consecutive-sentence findings at the sentencing hearing by

stating the following:

I do find that consecutive sentences are necessary to protect the

public from future crime and to punish the defendant, and that it’s not

disproportionate to the seriousness of [Anderson’s] conduct and to the

danger he poses to the public. And that [Anderson’s] history of criminal

conduct while albeit only misdemeanors, the domestic violence is very

disturbing, and because of that I find that consecutive sentences are

necessary to protect the public from future crime by [Anderson].

Sentencing Tr. p. 20.

{¶ 14} The trial court also properly incorporated its consecutive-sentence findings
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into the sentencing entry. See Judgment Entry of Conviction. Anderson, nevertheless,

claims that the record fails to support the trial court’s consecutive-sentence findings. We

disagree.

{¶ 15} A review of the PSI in this case establishes that Anderson was twice

convicted of criminal damaging in 2017 and 2019. Anderson was also convicted of

misdemeanor domestic violence in 2007 after he forced the mother of one of his children

into a bathroom, pushed her into the wall, banged her head against the wall approximately

five times, choked her, and then chased her down when she tried to run away. The PSI

also indicates that in 2018, Anderson was arrested and charged for allegedly entering the

locked residence of the mother of his other three children, where he choked and punched

her multiple times while their children were at home. Although a jury found Anderson

not guilty of the 2018 charges, a sentencing court may consider facts supporting a charge

that resulted in a not-guilty verdict/acquittal. State v. Wiles, 59 Ohio St.3d 71, 78, 571

N.E.2d 97 (1991); State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248,

¶ 8; State v. Ramey, 2d Dist. Clark No. 2007-CA-130, 2009-Ohio-425, ¶ 14. In any

event, the trial court specifically stated that because the domestic violence charge from

2018 was “dismissed,” the court was “really not going to give [that charge] much

weight” when imposing a sentence. Sentencing Tr. p. 17.

{¶ 16} As for the offenses Anderson pled guilty to, the police report included with

the PSI indicated that on the day in question, Anderson agreed to meet A.P. at an

apartment complex in Springfield so that he could give her gas money. When A.P.

arrived in her vehicle, Anderson became upset when A.P. advised him that she had not

dropped the burglary charge against him in Case No. 2019-CR-430. Upon becoming
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upset, Anderson took the keys from the ignition of A.P.’s vehicle, pulled A.P. out of the

vehicle, and threw her to the ground. Anderson then proceeded to punch A.P. multiple

times in the back of the head and face while her 8-year-old son was in the vehicle

watching. Anderson then took A.P.’s cell phone and prevented her from leaving the area

so that she could not contact 9-1-1 for help. When A.P. tried to run away, Anderson

chased after her, grabbed her, forced her back to the area of her vehicle, and threw her

to the ground. A.P. reported that Anderson then told onlookers that they “better show

up to court” and “have his back.” Anderson then called A.P. a “bitch” and told her that

“he would get out of this situation just as he did with his ‘babies mamma.’ ”

{¶ 17} The police report also indicated that Anderson went to A.P.’s apartment

later the same day. A.P. reported that Anderson knocked on her door and asked to be

let in, but she refused. A.P. then heard Anderson attempt to open the screen to one of

her windows. When officers arrived at the scene, Anderson was found outside in the

yard directly behind A.P.’s apartment.

{¶ 18} In addition to the information contained within the PSI, the record indicates

that Anderson continued to contact A.P. while he was in jail. As previously noted, A.P.

testified that Anderson made arrangements for her to copy and sign a false letter that

recanted her allegations against him in exchange for money. The record also

establishes that Anderson failed to show any remorse for his conduct, as he continually

accused A.P. of lying and blamed his current legal situation on A.P.’s mental health.

Based on the foregoing information, we do not find that the record clearly and convincingly

fails to support the trial court’s consecutive-sentence findings.
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Anderson’s Sentence was Not Contrary to Law or Unsupported by the Record

{¶ 19} In addition to challenging the consecutive nature of his sentences,

Anderson contends that his sentences were contrary to law and that the record did not

support the trial court’s decision to impose an aggregate five-year prison term.

Specifically, Anderson claims that the trial court erred in imposing the maximum three-

year prison term for his second count of violating a protection order and that community

control sanctions should have been imposed for both of his protection order violations.

{¶ 20} “In general, a sentence is not contrary to law when it is within the authorized

statutory range and the trial court states that it has considered the principles and purposes

of sentencing [set forth in R.C. 2929.11] and the seriousness and recidivism factors [set

forth in R.C. 2929.12].” (Citation omitted.) State v. Bradley, 2d Dist. Greene No. 2017-

CA-64, 2018-Ohio-3192, ¶ 5. “ ‘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.

Fyffe, 2018-Ohio-112, 109 N.E.3d 51, ¶ 31 (2d Dist.), quoting State v. King, 2013-Ohio-

2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

{¶ 21} When exercising its discretion, a trial court must consider the statutory

policies set out in R.C. 2929.11 and R.C. 2929.12. State v. Castle, 2016-Ohio-4974, 67

N.E.3d 1283, ¶ 26 (2d Dist.). A defendant’s sentence is not contrary to law when the

trial court expressly states in its sentencing entry that it has considered the principles and

purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in

R.C. 2929.12, but neglects to mention those statutes at the sentencing hearing. State

v. Battle, 2d Dist. Clark No. 2014-CA-5, 2014-Ohio-4502, ¶ 15, citing State v. Miller, 2d
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Dist. Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43.

{¶ 22} In this case, the two and three-year prison terms imposed by the trial court

for Anderson’s protection order violations were within the authorized statutory range for

third-degree felonies. See R.C. 2929.14(A)(3)(b). In addition, the trial court expressly

stated in its sentencing entry that it had “considered the * * * principles and purposes of

sentencing under Ohio Revised Code Section 2929.11, and then balanced the

seriousness and recidivism factors under Ohio Revised Code Section 2929.12.”

Judgment Entry of Conviction. Therefore, contrary to Anderson’s claim, his aggregate

five-year prison sentence was not clearly and convincingly contrary to law.

{¶ 23} “[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. “Again, this is a very deferential standard of

review.” State v. Pack, 2d Dist. Clark No. 2018-CA-52, 2018-Ohio-4632, ¶ 12. “If the

record does not contain evidence from which we can determine that the sentence was

clearly and convincingly improper, then we are without authority to vacate it.” Id. “In

turn, the record must contain substantial affirmative factual information in support of the

defendant to conclude that the trial court’s sentencing decision was in error.” Id., citing

Withrow, 2016-Ohio-2884, 64 N.E.3d 553 at ¶ 40.

{¶ 24} After a thorough review of the record, we do not find by clear and convincing

evidence that the record failed to support the trial court’s sentencing decision. Although

Anderson had no prior felony convictions, the PSI established that he had a criminal

history of domestic violence toward women. The similarities between A.P.’s allegations
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and the allegations of Anderson’s prior victims established a disturbing pattern of violent

conduct by Anderson. The record also established that Anderson had no regard for

protection orders. In committing the protection order violations at issue, Anderson

violated A.P.’s protection order twice in the same day and then continued to contact A.P.

while he was in jail. Anderson was also charged with four other counts of violating a

protection order between July 19, 2019 and August 12, 2019. Therefore, the record

indicated that Anderson did not take protection orders seriously. Based on the

foregoing, we cannot say that Anderson’s aggregate five-year prison sentence was

unsupported by the record.

{¶ 25} For the foregoing reasons, Andersons first, second, and third assignments

of error are overruled.

Conclusion

{¶ 26} Having overruled all of Anderson’s assignments of error, the judgment of

the trial court is affirmed.

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DONOVAN, J. and HALL, J., concur.

Copies sent to:

John M. Lintz
Brian D. Brennaman
Hon. Douglas M. Rastatter