State v. Walker

[Cite as State v. Walker, 2020-Ohio-4512.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY

STATE OF OHIO,
CASE NO. 5-20-13
PLAINTIFF-APPELLEE,

v.

TERRELL E. WALKER, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court
Trial Court No. 2018-CR-305

Judgment Affirmed

Date of Decision: September 21, 2020

APPEARANCES:

Brian A. Smith for Appellant

Colleen P. Limerick for Appellee
Case No. 5-20-13

WILLAMOWSKI, J.

{¶1} Defendant-appellant Terrell E. Walker (“Walker”) appeals the

judgment of the Hancock County Court of Common Pleas, alleging that his sentence

is not supported by the record. For the reasons set forth below, the judgment of the

trial court is affirmed.

Facts and Procedural History

{¶2} On August 15, 2018, Shawntrina Alford (“Alford”) was pulled over for

speeding by the Ohio State Highway Patrol. PSI. Walker and two of Alford’s

children were passengers in the vehicle driven by Alford. PSI. The State Trooper

detected an odor of marijuana coming from the vehicle. PSI. The State Trooper

then searched the vehicle and found plastic baggies that contained marijuana and a

powdery substance. PSI. After making this discovery, the State Trooper placed

Walker and Alford under arrest. PSI. Subsequent testing revealed that the powdery

substance in the baggie was a compound that contained heroin, fentanyl, and

cocaine. PSI.

{¶3} On August 28, 2018, Walker was indicted on one count of possession

of heroin in violation of R.C. 2925.11(A). Doc. 1. This charge included a

specification that Walker was a major drug offender. Doc. 1. On August 14, 2019,

Walker pled guilty to one count of possession of heroin in violation of R.C.

2925.11(A). Doc. 48. The major drug offender specification was dismissed. Doc.

48. The trial court then found Walker guilty on September 10, 2019 and ordered

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that a presentence investigation report (“PSI”) be prepared. Doc. 50. The trial court

scheduled a sentencing hearing for November 14, 2019. Doc. 50. However, Walker

failed to appear for his scheduled sentencing hearing. Doc. 51, 57. The trial court

then issued a bench warrant for Walker. Doc. 51, 57.

{¶4} On January 2, 2020, the trial court issued an order that continued

Walker’s sentencing hearing for February 3, 2020. Doc. 58. Walker appeared

before the trial court for sentencing on February 3, 2020. Tr. 1. The trial court

ordered Walker to serve an eight-year prison sentence. Doc. 60. The trial court

then issued a judgment entry of sentencing on February 18, 2020. Doc. 60.

Assignment of Error

{¶5} Walker filed his notice of appeal on March 6, 2020. Doc. 80. On

appeal, Walker raises the following assignment of error:

Because the record, as shown by clear and convincing evidence,
does not support the trial court’s findings, pursuant to R.C.
2953.08(G)(2), the trial court’s sentence of Appellant was not
supported by the record.

Specifically, Walker argues that the trial court did not properly weigh the principles

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

factors in R.C. 2929.12.

Legal Standard

{¶6} In ordering a sentence, “[t]he trial court has full discretion to impose

any sentence within the authorized statutory range * * *.” State v. Dayton, 3d Dist.

Union No. 14-16-05, 2016-Ohio-7178, ¶ 15, quoting, State v. King, 2013-Ohio-

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2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, R.C. 2929.11(A) directs trial

courts to sentence convicted felons in accordance with the overriding purposes of

felony sentencing, which

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 without
imposing an unnecessary burden on state or local government
resources. * * *

R.C. 2929.11(A). “To effectuate compliance with these overriding purposes, the

Ohio Revised Code requires the trial court to consider a number of factors listed in

R.C. 2929.12.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6.

The R.C. 2929.12 factors direct the trial court to evaluate the seriousness of the

offense and the likelihood of recidivism. R.C. 2929.12.

{¶7} Further, R.C. 2929.11(B) requires a trial court to impose a felony

sentence that is “consistent with sentences imposed for similar crimes committed

by similar offenders.” R.C. 2929.11(B). As used in this provision, “‘consistency’

relates to the sentences in the context of sentences given to other offenders * * *.”

State v. Moore, 2014-Ohio-5135, 24 N.E.3d 1197, ¶ 16 (8th Dist.). However,

consistency does not necessarily require uniformity. State v. Hall, 179 Ohio App.3d

727, 2008-Ohio-6228, 903 N.E.2d 676, ¶ 10 (10th Dist.). “R.C. 2929.11(B) does

not require a trial court to impose identical sentences for codefendants.” State v.

McIntosh, 160, Ohio App.3d 544, 2005-Ohio-1760, 828 N.E.2d 138, ¶ 13 (1st Dist.).

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{¶8} “The fact that a defendant receives a longer prison sentence than a

codefendant does not, in and of itself establish a violation of the consistency

requirement.” State v. Luce, 5th Dist. Ashland No. 19-COA-001, 2019-Ohio-2875,

¶ 22, quoting State v. Ware, 8th Dist. Cuyahoga No. 106176, 2018-Ohio-2294, ¶ 17.

“Rather, the consistency requirement is satisfied when a trial court properly

considers the statutory sentencing factors and principles.” State v. Cargill, 8th Dist.

Cuyahoga No. 103902, 2016-Ohio-5932, ¶ 11. Thus, while “offenses may be

similar, distinguishing factors may justify dissimilar sentences.” State v. Zaharie,

9th Dist. Medina No. 09CA0077-M, 2010-Ohio-3542, ¶ 13.

{¶9} “Appellate courts defer to the broad discretion of the trial court in

matters of sentencing.” State v. Jones, 3d Dist. Shelby No. 17-19-08, 2019-Ohio-

4938, ¶ 7.1 If the defendant establishes by clear and convincing evidence that his or

her sentence is “(1) contrary to law and/or (2) unsupported by the record,” an

appellate court has the authority, pursuant to R.C. 2953.08(G)(2), “to increase,

reduce, or otherwise modify a sentence * * *.” State v. McGowan, 147 Ohio St.3d

166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1.

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.

1
Trial courts are given discretion in applying the statutory factors in the process of determining an appropriate
sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of discretion is
clearly and convincingly contrary to law. Thus, we examine the record to determine whether the trial court
clearly and convincingly failed to act in accordance with the laws governing the imposition of sentences.

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State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954).

Legal Analysis

{¶10} In this case, Walker pled guilty to a felony of the first degree. Doc.

48. A prison sentence was mandatory for the offense in this case. Tr. 14. See R.C.

2929.13(F)(5). Further, his eight-year prison term for this offense falls within the

statutory range of three to eleven years in prison. See R.C. 2929.14(A)(1)(b). At

the sentencing hearing, the trial court expressly considered the purposes and

principles of felony sentencing. Tr. 11. During the sentencing hearing, the trial

court also considered the contents of the PSI, a statement from Walker, and a letter

submitted on Walker’s behalf from a community organization. Tr. 10, 13-14.

{¶11} In the process of weighing the seriousness factors, the trial court noted

that Walker was found to be in possession of “a high amount of drugs * * *.” Tr.

12. The PSI indicated that the baggies discovered by the State Trooper contained

229.31 grams of a heroin compound and 1.01 grams of marijuana. PSI. However,

the trial court also considered that the seriousness of possessing such a large amount

of a controlled substance was “built into the nature of this offense” as it was classed

as a felony of the first degree. Tr. 12.

{¶12} As to the recidivism factors, Walker stated, at the sentencing hearing,

that he was remorseful for his conduct. Tr. 14. See R.C. 2929.12(E)(5). The

Defense also obtained a letter from a community organization that indicated that

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Walker had been involved as a volunteer in a sports program for at risk youth. Tr.

10, 13. PSI. The trial court then considered the fact that Walker did not have a

juvenile record. Tr. 13. See R.C. 2929.12(E)(1).

{¶13} However, the trial court noted that Walker did have “a fairly serious,

fairly lengthy adult criminal record, which * * * indicates recidivism is more likely.”

Tr. 13. See R.C. 2929.12(D)(2). Walker had also served, at least, three prison terms

but continued his pattern of criminal behavior. See R.C. 2929.12(D)(3). The trial

court noted that Walker, at the time of this offense, was “on bond or supervised

release” for an offense that he committed in Michigan in 2017. Tr. 13. PSI. See

R.C. 2929.12(D)(1). The PSI also indicated that, while Walker was on bond, he

failed to report as directed on at least four occasions and reported late on at least

fifteen occasions. PSI. Tr. 13.

{¶14} On November 14, 2019, Walker, failed to appear for his sentencing

hearing. PSI. Doc. 9, 51. On January 2, 2020, the trial court continued Walker’s

sentencing hearing to February 3, 2020. Doc. 58. In the interim, Walker was placed

in the Hancock County Justice Center and the Mercer County Jail.2 PSI. He had no

reported infractions during his time in each of these facilities. PSI.

{¶15} Walker points to the fact that his recidivism score in his PSI was listed

as “moderate” and argues that this indicates he should not have as lengthy a prison

term as the trial court ordered. PSI. However, the PSI also recommended that

2
For a time, Walker was placed in the Mercer County Jail because of overcrowding. PSI.

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Walker receive an eight-year prison term in this case. PSI. Walker has not

demonstrated how the trial court imposed a sentence that was contrary to law by

ordering an eight-year sentence when his recidivism risk was moderate. See State

v. Castle, 2016-Ohio-4974, 67 N.E.3d 1283, ¶ 30 (2d Dist.) (wherein the appellate

court affirmed the trial court’s decision to impose a maximum prison sentence even

though the PSI found the defendant’s risk level was moderate and recommended he

only serve community supervision.). See State v. Bray, 2d Dist. Clark No. 2016-

CA-22, 2017-Ohio-118, ¶ 33.

{¶16} On appeal, Walker also argues that his eight-year prison sentence was

not consistent with Alford’s four-year prison sentence for the same offense. See

R.C. 2929.11(B). However, at Walker’s sentencing hearing, the trial court stated

that Alford received a shorter sentence because she “had a vastly different criminal

history.” Tr. 14. See Cargill, supra, at ¶ 13. The trial court noted that Alford,

unlike Walker, did not have “multiple prior felony convictions.” Tr. 14. See State

v. Allen, 10th Dist. Franklin No. 10AP-487, 2011-Ohio-1757, ¶ 24. The difference

in Walker and Alford’s sentences came from the trial court’s application of the R.C.

2929.12 factors to the circumstances of these two cases. State v. Beasley, 8th Dist.

Cuyahoga No. 82884, 2004-Ohio-988, ¶ 23. Thus, in this argument, Walker has

only established that his sentence and Alford’s sentence were not uniform. He has

not carried the burden of demonstrating, by clear and convincing evidence, that the

trial court acted contrary to law by ordering a longer prison sentence for him than

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for Alford. See State v. Gordon, 5th Dist. Stark No. 2005CA00031, 2005-Ohio-

3638, ¶ 46 (holding that the application of the factors and guidelines in R.C. 2929.11

and R.C. 2929.12 “create consistency in sentencing.”).

{¶17} After reviewing the materials in the record, we conclude that Walker’s

sentence is supported by the facts in the record. We find no indication in the record

that the trial court abused its discretion and imposed a prison sentence that was

contrary to law. Because Walker did not carry the burden of demonstrating, by clear

and convincing evidence, that his sentence was not supported by the record, his sole

assignment of error is overruled.

Conclusion

{¶18} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Hancock County Court of Common Pleas

is affirmed.

Judgment Affirmed

SHAW P.J. and ZIMMERMAN J., concur.

/hls

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