State v. Robinson

[Cite as State v. Robinson, 2021-Ohio-3095.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vs-
Case No. 2020 CA 0070
CODY ROBINSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2018-CR-0981

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 8, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP COLIN E. PETERS
Prosecuting Attorney 511 South High Street
Richland County, Ohio Columbus, Ohio 43215

JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street, #2
Mansfield, Ohio 44902
Richland County, Case No. 2020 CA 0070 2

Hoffman, J.
{¶1} Defendant-appellant Cody Robinson appeals the September 1, 2020

Sentencing Entry entered by the Richland County Court of Common Pleas, imposing

consecutive sentences after he pled guilty to two drug possession charges. Plaintiff-

appellee is the state of Ohio.

STATEMENT OF THE CASE

{¶2} On November 9, 2018, the Richland County Grand Jury indicted Appellant

on one count of aggravated possession of drugs, in violation of R.C. 2925.11(A) &

(C)(1)(a), a felony of the fifth degree, and one count of possession of cocaine, in violation

of 2925.11(A) & (C)(4)(a), a felony of the fifth degree. Appellant appeared for arraignment

on April 4, 2019, and entered pleas of not guilty to the charges. The trial court scheduled

the matter for trial on July 23, 2019.

{¶3} Appellant appeared before the trial court on July 15, 2019, withdrew his

former pleas of not guilty and enter pleas of guilty to both charges. The trial court ordered

a pre-sentence investigation and scheduled sentencing for September 5, 2019. Appellant

failed to appear for sentencing. The trial court rescheduled the hearing for September

10, 2019. Appellant again failed to appear and the trial court issued a bench warrant.

The trial court rescheduled the hearing for January 13, 2020. Appellant failed to appear

and the bench warrant remained active.

{¶4} Appellant was arrested on the warrant on March 11, 2020. He was released

from Richland County Jail on March 18, 2020, due to overcrowding and restrictions

imposed due to the Covid-19 pandemic. The trial court scheduled a sentencing hearing

for May 4, 2020. Appellant failed to appear, having absconded to Michigan. The trial

court issued a bench warrant.
Richland County, Case No. 2020 CA 0070 3

{¶5} Appellant filed a Motion to Recall Warrant on May 7, 2020, which the trial

court denied. The trial court scheduled the sentencing hearing for May 28, 2020. Again,

Appellant failed to appear. The bench warrant remained active. Appellant was arrested

on August 30, 2020, and sentenced on August 31, 2020.

{¶6} The trial court sentenced Appellant to a period of incarceration of twelve

(12) months on each count and ordered the sentences be served consecutively. The

sentence also included a three-year discretionary term of post-release control. The trial

court memorialized Appellant’s sentence via Sentencing Entry filed September 1, 2020.

{¶7} It is from the trial court’s imposition of consecutive sentences Appellant

appeals, raising the following assignments of error:

I. APPELLANT’S SENTENCE WAS CONTRARY TO THE

PRINCIPLES AND PURPOSES OF SENTENCING SET FORTH IN R.C.

2929.11 AND 2929.12, AND IS UNSUPPORTED BY THE RECORD, IN

VIOLATION OF HIS RIGHTS TO DUE PROCESS UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION.

II. APPELLANT’S MAXIMUM, CONSECUTIVE SENTENCE WAS

CONTRARY TO R.C. 2929.14, AS THE TRIAL COURT’S FINDINGS

WERE UNSUPPORTED BY THE RECORD, IN VIOLATION OF HIS

RIGHTS TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
Richland County, Case No. 2020 CA 0070 4

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

III. APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR

FAILING TO PRESENT AN OBJECTIVELY REASONABLE SENTENCING

ARGUMENT, IN VIOLATION OF HIS RIGHTS TO COUNSEL AND DUE

PROCESS AS GUARANTEED BY THE UNITED STATES AND OHIO

CONSTITUTIONS.

IV. THE SENTENCE IMPOSED BY THE TRIAL COURT WAS

CRUEL AND UNUSUAL, IN VIOLATIONS OF APPELLANT’S RIGHTS AS

GUARANTEED BY THE EIGHTH AMENDMENT TO THE UNITED

STATES CONSTITUTION, AND ARTICLE I, SECTION 9 OF THE OHIO

CONSTITUTION.

I, II

{¶8} Because Appellant’s first and second assignments of error raise interrelated

issues, we elect to address the assignments together.

{¶9} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,

citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for sentencing where we clearly and convincingly find either the record does

not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law. Id.,
Richland County, Case No. 2020 CA 0070 5

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659 R.C. 2929.11

and R.C. 2929.12.

{¶10} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh

the evidence in the record and substitute our own judgment for that of the trial court to

determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.

2929.12. State v. Jones, 169 N.E.3d 649, 2020-Ohio-6729, ¶ 42.

{¶11} When sentencing a defendant, the trial court must consider the purposes

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

recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-

Ohio-5025, ¶ 7.

{¶12} “The overriding 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.” R.C. 2929.11(A). To achieve these purposes, the

sentencing court shall 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. Further, 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 by

similar offenders.” R.C. § 2929.11(B).

{¶13} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria
Richland County, Case No. 2020 CA 0070 6

which do not control the court's discretion, but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

{¶14} This Court is without authority to disturb Appellant's sentence absent a

finding by clear and convincing evidence the record does not support the trial court's

findings under R.C. 2929.11 and R.C. 2929.12. Instead, we may only determine if the

sentence is contrary to law.

{¶15} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.” State v. Pettorini, 5th Dist. Licking No. 2020 CA

00057, 2021-Ohio-1512, 2021 WL 1714216, ¶¶ 14-16 quoting State v. Dinka, 12th Dist.

Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.

{¶16} Appellant does not argue his sentence is not within the permissible statutory

range. Rather, Appellant asserts none of the factors set forth in R.C 2929.12(B) and (C)

apply to him and his conduct was no more serious than ordinary conduct normally

constituting the offenses for which he was convicted. The trial court ordered a

presentence investigation report, which showed Appellant was on community control for

a 2013 conviction when he committed these offenses in July, 2018. In August, 2018,

Appellant was incarcerated for violating the terms of his community control. In addition,

Appellant had drug possession and trafficking convictions, dating back to 2009. Appellant

showed no remorse for his actions. Appellant never appeared for sentencing on his own
Richland County, Case No. 2020 CA 0070 7

volition, but had to be taken into custody in order to ensure his appearance at the

sentencing hearing.

{¶17} The record establishes the trial court considered the purposes and

principles of sentencing as well as the seriousness and recidivism factors set forth in R.C.

2929.11 and R.C. 2929.12, respectively. Upon review, we find no basis for concluding the

sentence is contrary to law.

{¶18} Maximum, consecutive sentences.

{¶19} R.C. 2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(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 multiple offenses so committed was so great or unusual that no single
Richland County, Case No. 2020 CA 0070 8

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.

{¶20} At the sentencing hearing, the trial court stated:

So the court looking at the principles and purposes of sentencing as

well as the seriousness and recidivism factors, as to Count 1, Aggravated

Possession of Drugs, a felony of the fifth degree, the court is going to

impose a prison term of 12 (twelve) months.

As to Count 2, Possession of Cocaine, a felony of the fifth degree,

the court is going to impose a prison term of 12 (twelve) months.

The court is going to run those matters consecutive to one another.

The court is saying the sentences are made consecutive, because

consecutive sentences are necessary to protect the public from future crime

or to punish the offender, and consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public; and because 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 multiple offenses so

committed was so great or so unusual that no single prison term for any of
Richland County, Case No. 2020 CA 0070 9

the offenses committed as part of any of the courses of conduct adequately

reflects the seriousness of the offender’s conduct; and the offender’s history

of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.

{¶21} Transcript of August 31, 2020 Sentencing Hearing at 9-10.

{¶22} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to

state reasons to support its findings nor must it recite certain talismanic words or phrases

in order to be considered to have complied. State v. Smith, 10th Dist. Franklin No. 18AP-

525, 2019-Ohio-5199, ¶ 34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

syllabus.

{¶23} The trial court made each of the required statutory findings on the record. It

found consecutive prison terms were necessary to protect the public from future crime

and to punish Appellant. The trial court also found consecutive prison terms were not

disproportionate to Appellant's conduct and to the danger he posed to the public. The trial

court further found Appellant's offenses were committed as a course of conduct and the

potential harm was so great and unusual a single prison term would not adequately reflect

the seriousness of what Appellant did. The trial court noted Appellant’s criminal history,

his Ohio Risk Assessment Score of 25, the number of times the sentencing hearing was

rescheduled due to Appellant’s failure to appear, and the warrants issued as a result of

each failure to appear. Thus, the trial court made each of the required. Additionally, the
Richland County, Case No. 2020 CA 0070 10

trial court included each of the statutory sentencing findings in the sentencing judgment

entry.

{¶24} Based upon the foregoing, Appellant’s first and second assignments of error

are overruled.

III

{¶25} In his third assignment of error, Appellant raises a claim of ineffective

assistance of counsel.

{¶26} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and, but for counsel's error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, Appellant must show counsel's conduct so undermined the

proper functioning of the adversarial process the proceedings cannot be relied upon as

having produced a just result. Id. In determining whether counsel's representation fell

below an objective standard of reasonableness, judicial scrutiny of counsel's performance

must be highly deferential. Bradley at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any given

case, a strong presumption exists counsel's conduct fell within the wide range of

reasonable professional assistance. Id.

{¶27} In order to warrant a reversal, Appellant must additionally show he was

prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
Richland County, Case No. 2020 CA 0070 11

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial

counsel.” State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965, citing Lockhart

v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180. The United States

Supreme Court and the Ohio Supreme Court have held a reviewing court “need not

determine whether counsel's performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.” Bradley at 143, 538

N.E.2d 373, quoting Strickland at 697.

{¶28} Appellant submits defense counsel was ineffective at the sentencing

hearing because counsel failed to make any argument regarding what sentence the trial

court should impose on him. We disagree.

{¶29} We find defense counsel's failure to speak at the sentencing hearing did not

amount to deficient performance. “Possibly the decision for counsel to not speak at the

sentencing hearing was strategy. Tactical or strategic trial decisions, even if unsuccessful,

do not generally constitute ineffective assistance.” State v. Maguire, 7th Dist. Mahoning

No. 08 MA 188, 2009–Ohio–4393, ¶ 20, citing State v. Carter (1995), 72 Ohio St.3d 545,

558, 651 N.E.2d 965. Regardless, Appellant spoke on his own behalf at sentencing.

Appellant expressed a desire to “get all this stuff behind” him as he was “tired of going

through all this stuff.” Tr. Sentencing at 8. Furthermore, assuming arguendo, defense

counsel's failure to make an argument at the sentencing hearing amounts to deficient

performance, Appellant cannot show prejudice. There is nothing in the record to remotely

suggest had counsel made an argument at the sentencing hearing the trial court would

have been swayed to impose a lesser sentence. In fact, it appears from the record the
Richland County, Case No. 2020 CA 0070 12

trial court still would have sentenced Appellant to the same sentence regardless of any

argument defense counsel made.

{¶30} Appellant’s third assignment of error is overruled.

IV

{¶31} In his final assignment of error, Appellant contends the sentence imposed

by the trial court was cruel and unusual. We disagree.

{¶32} “The Eighth Amendment does not require strict proportionality between

crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime.” State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d

167 (1999) (Citation omitted). “Cases in which cruel and unusual punishments have been

found are limited to those involving sanctions which under the circumstances would be

considered shocking to any reasonable person,” and furthermore, “the penalty must be

so greatly disproportionate to the offense as to shock the sense of justice of the

community.” Id. at 371, 715 N.E.2d 167, quoting McDougle v. Maxwell, 1 Ohio St.2d 68,

70, 30 O.O.2d 38, 203 N.E.2d 334 (1964), and citing State v. Chaffin, 30 Ohio St.2d 13,

59 O.O.2d 51, 282 N.E.2d 46 (1972), paragraph three of the syllabus. “As a general rule,

a sentence that falls within the terms of a valid statute cannot amount to a cruel and

unusual punishment.” McDougle, supra at 69, citing Martin v. United States (C.A.9, 1963),

317 F.2d 753 (overruled on other grounds, United States v. Bishop (1973), 412 U.S. 346,

93 S.Ct. 2008, 36 L.Ed.2d 941).

{¶33} Because Appellant’s sentence fell within the statutory limitations, we find

the sentence was not excessive and the trial court did not violate the constitutional

prohibition against cruel and unusual punishment.
Richland County, Case No. 2020 CA 0070 13

{¶34} Appellant’s fourth assignment of error is overruled.

{¶35} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, J.
Baldwin, P.J. and
Gwin, J. concur