State v. Morris

[Cite as State v. Morris, 2020-Ohio-4248.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1252

Appellee Trial Court No. CR0201901052

v.

Bobbie Jo Morris DECISION AND JUDGMENT

Appellant Decided: August 28, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

*****

ZMUDA, P.J.

I. Introduction

{¶ 1} Appellant, Bobbie Jo Morris, appeals the judgment of the Lucas County

Court of Common Pleas, sentencing her to 60 months in prison after she pled guilty to

one count of felonious assault and one count of bribery. Finding no error in the

proceedings below, we affirm.
 A. Facts and Procedural Background

{¶ 2} On January 10, 2019, appellant, along with two co-defendants, were indicted

on one count of aggravated burglary in violation of R.C. 2911.11(A)(1) and (B), a felony

of the first degree, one count of felonious assault in violation of R.C. 2903.11(A)(1) and

(D), a felony of the second degree, one count of abduction in violation of R.C.

2905.02(A)(1) and (C), a felony of the third degree, and one count of bribery in violation

of R.C. 2921.02(C) and (G), a felony of the third degree. Additionally, firearms

specifications were attached to the first three counts listed in the indictment (aggravated

burglary, felonious assault, and abduction) pursuant to R.C. 2941.145(A), (B), (C), and

(F).

{¶ 3} The foregoing charges stemmed from appellant’s involvement in an assault

of a female victim that occurred on January 1, 2019, in which the victim was kicked and

punched in the face, dragged into her living room by her hair and slammed onto the floor,

dragged into her hallway and again slammed onto the floor, stomped in the head, and

finally dragged halfway down a flight of stairs. The assault resulted in injuries to the

victim that included a fractured sacrum, several cuts and bruises, and the loss of two

teeth. Following the assault, appellant communicated remorse to the victim and offered

the victim $1,000 to drop the criminal charges against her.

{¶ 4} At her arraignment on February 5, 2019, appellant entered a plea of not

guilty, and the matter proceeded to discovery and pretrial motion practice. On

August 20, 2019, appellant appeared before the trial court for a change of plea hearing.

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Following successful plea negotiations, appellant agreed to plead guilty to Count 2

(felonious assault) and Count 4 (bribery) in exchange for the state’s dismissal of the

remaining charges and all firearm specifications. After a Crim.R. 11 colloquy, the trial

court accepted appellant’s plea, ordered the preparation of a presentence investigation

report, and continued the matter for sentencing.

{¶ 5} Appellant’s sentencing hearing was held on October 1, 2019. At the

hearing, appellant accepted responsibility for her role in the assault and her attempt to

bribe the victim following the assault. Based upon appellant’s cooperation in this case,

and in light of the fact that appellant was not the individual who directly assaulted the

victim, defense counsel argued in favor of a non-prison sanction. However, the trial

court was unpersuaded. The court noted appellant’s cooperation, but also highlighted

appellant’s criminal record, which consisted of 31 prior adult misdemeanor convictions

and two prior adult felony convictions. Further, the trial court voiced its concern about

the severity of the facts of this case, stating:

[T]he court in good [conscience] cannot leave you in this community based

on the severity of these offenses. But I will tell you that you have certainly

gotten a benefit and a reduction in what your sentence would have been

because of your cooperation.

As a result of the foregoing, the trial court ordered appellant to serve four years in prison

for felonious assault and one year in prison for bribery, to be served consecutively for a

total prison term of five years.

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 {¶ 6} In rendering its sentence, the trial court stated that it “considered the record,

oral statements, any victim impact statements, and PSI prepared, as well as the principles

and purposes of sentencing under R.C. 2929.11. The court has balanced the seriousness

and recidivism factors under 2929.12.” Moreover, the trial court made the necessary

findings to support the imposition of consecutive sentences under R.C. 2929.14, namely

that consecutive sentences were necessary to protect the public from future crime and/or

punish the defendant, that consecutive sentences were not disproportionate to the

seriousness of the appellant’s conduct or the danger appellant poses to the public, that the

offenses were committed as part of one or more courses of conduct, and that appellant’s

criminal history requires consecutive sentences. The court’s findings under R.C.

2929.11, 2929.12, and 2929.14 were also embodied in its written sentencing entry.

{¶ 7} Following the trial court’s imposition of sentence, appellant filed her timely

notice of appeal.

B. Assignments of Error

{¶ 8} On appeal, appellant asserts the following assignment of error:

Appellant’s sentence should be vacated due to the Trial Court’s

failure to comply with the directives of R.C. 2929.11 and 2929.12.

II. Analysis

{¶ 9} In her sole assignment of error, appellant challenges the propriety of her

five-year prison sentence.

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 {¶ 10} The review of felony sentences is governed under R.C. 2953.08(G)(2).

Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate

and remand a sentence only if the record demonstrates, clearly and convincingly, either

of the following:

(a) That the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant; or

(b) That the sentence is otherwise contrary to law.

{¶ 11} Relevant to appellant’s argument in this case, we have previously stated

that a sentence is not clearly and convincingly contrary to law where the trial court has

considered the purposes and principles of sentencing under R.C. 2929.11 and the

seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease

control, and imposed a sentence within the statutory range. State v. Tammerine, 6th Dist.

Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15-16.

{¶ 12} Appellant does not challenge the trial court’s technical compliance with

R.C. 2929.11 and 2929.12. Indeed, the trial court expressly indicated its consideration of

these statutory sections prior to imposing its sentence at the sentencing hearing, and again

in its sentencing entry. Further, the trial court’s sentence clearly falls within the statutory

range for the applicable felony degrees at issue in this case. See R.C. 2929.14(A)

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(Establishing a maximum prison sentence of eight years and three years for felonies of

the second and third degree, respectively).

{¶ 13} In her brief, appellant argues that her sentence is excessive because it fails

to achieve the principles and purposes of sentencing set forth in R.C. 2929.11, and also

challenges the weight that the court assigned to the various factors it was required to

consider under R.C. 2929.12. Appellant supports her argument by referencing the fact

that she suffers from a drug addiction that she has recently addressed, and also insists that

the trial court did not weigh her remorse and cooperation heavily enough in fashioning its

sentence.

{¶ 14} An appellate court may review a sentence 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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 23. Thus, we may vacate or modify the sentence only if we find

by clear and convincing evidence that the record does not support the sentence. Id.

{¶ 15} Under R.C. 2929.11(A), the purposes of felony sentencing 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.” To achieve these purposes, the sentencing 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

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offense, the public, or both.” R.C. 2929.11(A). The sentence imposed shall be

reasonably calculated to achieve the overriding purposes, “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.” R.C. 2929.11(B).

{¶ 16} R.C. 2929.12 grants discretion to the trial court to determine the most

effective way to comply with the purposes and principles of sentencing, and it lists

general factors that the trial court must consider relating to the seriousness of the

offender’s conduct, the likelihood of recidivism, and, if applicable, the offender’s service

in the U.S. armed forces. R.C. 2929.12(A) also permits the court to “consider any other

factors that are relevant to achieving those purposes and principles of sentencing.” A

sentencing court has “broad discretion to determine the relative weight to assign the

sentencing factors in R.C. 2929.12.” State v. Brimacombe, 195 Ohio App.3d 524, 2011-

Ohio-5032, 960 N.E.2d 1042, ¶ 18 (6th Dist.).

{¶ 17} At the sentencing hearing and in its judgment entry, the trial court

expressly indicated its consideration of the principles and purposes of sentencing under

R.C. 2929.11 and its balancing of the seriousness and recidivism factors under R.C.

2929.12. The court went on to explain the basis for its sentence, highlighting appellant’s

extensive criminal record and the seriousness of the crimes committed in this case, with a

particular view to the physical injuries that the victim sustained as a result of the crimes.

The sentencing transcript clearly demonstrates that the trial court took the seriousness and

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recidivism factors into consideration in fashioning a sentence that the trial court believed

to be commensurate with the principles and purposes of felony sentencing. Further, “the

trial court had full discretion to determine whether the mitigating factors of R.C.

2929.12(C) were outweighed by the seriousness of [appellant’s] conduct,” and the trial

court “was not required to specify which statutory factors it relied upon.” State v. Polley,

6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 16-17, citing State v. Wymer, 6th

Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 10.

{¶ 18} As we already stated in Polley, “we may not substitute our judgment for

that of the trial judge even if a different judge may have weighed the statutory factors

differently.” Id. at ¶ 18, citing State v. Irwin, 8th Dist. Cuyahoga No. 108099, 2019-

Ohio-4462, ¶ 15. The trial court imposed a sentence that falls within the statutory range

for felonies of the second and third degree, and indicated and explained its evaluation of

R.C. 2929.11 and 2929.12 in imposing appellant’s sentence. Therefore, we find that

appellant’s sentence was not contrary to law under R.C. 2953.08(G)(2)(b). Accordingly,

we find appellant’s assignment of error not well-taken.

III. Conclusion

{¶ 19} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. The costs of this appeal are assessed to appellant under

App.R. 24.

Judgment affirmed.

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 State v. Morris
C.A. No. L-19-1252

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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