State v. Napier

[Cite as State v. Napier, 2022-Ohio-1439.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-09-115

: OPINION
- vs - 5/2/2022
:

JAMES E. NAPIER, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2010-08-1378

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.

Michele Temmel, for appellant.

S. POWELL, J.

{¶ 1} Appellant, James E. Napier, appeals the decision of the Butler County Court

of Common Pleas sentencing him to serve the maximum possible 36-month prison term

available for third-degree felony illegal assembly or possession of chemicals for the

manufacture of drugs in violation of R.C. 2925.51. For the reasons outlined below, we affirm
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the trial court's sentencing decision.

{¶ 2} On October 13, 2010, the Butler County Grand Jury returned a three-count

indictment charging Napier with second-degree felony illegal manufacturing of drugs in

violation of R.C. 2925.04, third-degree felony illegal assembly or possession of chemicals

for the manufacture of drugs in violation of R.C. 2925.51, and third-degree felony

aggravated possession of drugs in violation of R.C. 2925.11. The charges arose after

Napier was found in possession of methamphetamine and items used in the manufacture

of methamphetamine during the early morning hours of July 3, 2010. Napier pled not guilty

to the three indicted charges and was thereafter released on $30,000 bond.

{¶ 3} On January 27, 2011, Napier filed a motion to suppress evidence. After

holding a hearing on the matter, the trial court denied Napier's motion. Following the denial

of Napier's motion to suppress, the trial court scheduled the matter for trial to take place on

May 23, 2011. Napier, however, did not appear for trial as scheduled. When Napier failed

to appear for trial, the trial court revoked Napier's bond and issued a bench warrant for

Napier's arrest. Approximately eight years later, on April 19, 2019, Napier was arrested on

the trial court's still outstanding bench warrant. Shortly after Napier's arrest, the trial court

held a hearing and set Napier's bond at $250,000.

{¶ 4} On May 16, 2019, the trial court held a hearing and thereafter scheduled the

matter for trial to take place on July 29, 2019. Following this hearing, however, the trial

court determined that Napier was not competent to stand trial and ordered Napier to receive

treatment to regain his competency. Several months later, on December 11, 2019, the trial

court issued an entry finding Napier had regained his competency and scheduled the matter

for trial to take place on March 23, 2020. Just over one month prior to the start of Napier's

trial, on February 20, 2020, Napier moved the trial court for an order requiring the state to

supply his expert with a representative sample of the alleged illegal substance that served

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as the underlying basis for the three above-named charges.

{¶ 5} On February 25, 2020, the trial court held a hearing on Napier's motion. At

this hearing, the state acknowledged that it could not provide Napier's expert with the

requested sample because the alleged illegal substance that served as the underlying basis

of the three indicted charges had already been destroyed pursuant to the standard

procedure employed by the Butler County Sheriff's Office. After learning the state could not

supply his expert with the requested sample, Napier then filed a motion to dismiss. The

trial court held a hearing on Napier's motion to dismiss on March 12, 2020. Shortly

thereafter, on March 18, 2020, the trial court filed an entry granting Napier's motion. The

state then appealed the trial court's decision. On appeal, this court reversed the trial court's

decision and remanded the matter back to the trial court for further proceedings. State v.

Napier, 12th Dist. Butler No. CA2020-03-038, 2020-Ohio-5457.

{¶ 6} On August 12, 2021, following remand from this court, Napier entered into a

plea agreement and pled guilty to one count of third-degree felony illegal assembly or

possession of chemicals for the manufacture of drugs in violation of R.C. 2925.51. Napier

agreed to plead guilty to that single charge in exchange for dismissal of the other two

charges against him. After engaging Napier in the necessary Crim.R. 11(C) plea colloquy,

the trial court accepted Napier's guilty plea upon finding his plea was knowingly, intelligently,

and voluntarily entered. The trial court then scheduled the matter for sentencing to take

place on September 23, 2021.

{¶ 7} On September 23, 2021, the parties reconvened for purposes of sentencing.

At sentencing, but prior to when the trial court issued its sentencing decision, the trial court

stated:

The Court has considered the purposes and principles of
sentencing, rate of recidivism, and the seriousness factors. The
Court has reviewed and considered the pre-sentence

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investigation report. I've considered everything that's been
presented to the Court today in mitigation. I've considered the
sentencing memorandum that was presented and filed by
[Napier's defense counsel] on behalf of [Napier]. [Napier's]
motion to waive any fines in this case. I've reviewed the
financial affidavit.

The trial court then issued its decision sentencing Napier to serve the maximum 36-month

prison term available for third-degree felony illegal assembly or possession of chemicals for

the manufacture of drugs in violation of R.C. 2925.51, less 517 days of jail-time credit. The

trial court also ordered Napier to pay a $5,000 fine and notified Napier that he would be

subject to an optional three-year postrelease control term upon his release from prison.

{¶ 8} On September 27, 2021, the trial court issued its judgment of conviction entry.

As part of that entry, the trial court stated:

The Court has considered the record, the charges, the
defendant's Guilty Plea, and findings as set forth on the record
and herein, oral statements, any victim impact statement and
pre-sentence report, as well as the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11, and has
balanced the seriousness and recidivism factors of Ohio
Revised Code Section 2929.12 and whether or not community
control is appropriate pursuant to Ohio Revised Code Section
R.C. 2929.13, and finds that the defendant is not amenable to
an available community control sanction.

(Bold text sic.)

{¶ 9} Napier now appeals the trial court's decision sentencing him to serve the

maximum possible 36-month prison term available for third-degree felony illegal assembly

or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.51, raising

the following single assignment of error for review.

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT

WHEN IT IMPOSED THE MAXIMUM SENTENCE BECAUSE IT WAS NOT CLEARLY AND

CONVINCINGLY SUPPORTED BY THE RECORD.

{¶ 11} Napier argues the trial court erred by sentencing him to serve the maximum

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36-month prison term available for third-degree felony illegal assembly or possession of

chemicals for the manufacture of drugs in violation of R.C. 2925.51. We disagree.

{¶ 12} This court "does not review the sentencing court's decision for an abuse of

discretion." State v. Scott, 12th Dist. Clermont Nos. CA2019-07-051 and CA2019 07-052,

2020-Ohio-3230, ¶ 54, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 10.

"It is instead the standard of review set forth in R.C. 2953.08(G)(2) that governs all felony

sentences." State v. Watkins, 12th Dist. Preble No. CA2020-03-005, 2021-Ohio-163, ¶ 48,

citing State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6; and

State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8 ("[a]s with all

felony sentences, we review this sentence under the standard of review set forth in R.C.

2953.08[G][2]"). The standard prescribed by R.C. 2953.08(G)(2) is, in fact, "the only

standard applicable to felony sentencing." State v. Paul, 12th Dist. Clinton No. CA2020-08-

010, 2021-Ohio-1628, ¶ 9, fn.1.

{¶ 13} "'R.C. 2953.08(G)(2) is unambiguous and definite.'" State v. Simmons, 12th

Dist. Warren No. CA2020-10-069, 2021-Ohio-3563, ¶ 80, quoting Marcum at ¶ 9. Pursuant

to that statute, this court may increase, reduce, "or otherwise modify a sentence that is

appealed under this section or may vacate the sentence and remand the matter to the

sentencing court for resentencing," if this court clearly and convincingly finds 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;

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

{¶ 14} R.C. 2953.08(G)(2)(a) does not authorize an appellate court to review all the

trial court's findings made during sentencing. State v. Sallis, 12th Dist. Clermont No.

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CA2019-12-092, 2020-Ohio-3924, ¶ 6. Rather, according to the plain language of the

statute, the only findings that this court has authority to review are those the trial court

makes specific to R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C.

2929.20(I). State v. Boyd, 12th Dist. Butler No. CA2020-01-012, 2020-Ohio-4180, ¶ 12.

Therefore, when applying the plain language of R.C. 2953.08(G)(2) to the case at bar, "we

may vacate or modify a felony sentence only if this court determines by clear and convincing

evidence that: (1) the record does not support the trial court's findings under those specific,

enumerated, statutes; or (2) the sentence is otherwise contrary to law." State v. Toles, 12th

Dist. Madison No. CA2019-07-018, 2020-Ohio-4267, ¶ 38, citing Marcum, 2016-Ohio-1002

at ¶ 1.

{¶ 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 postrelease control, and sentences the defendant within the

permissible statutory range.'" State v. Tillett, 12th Dist. Butler No. CA2019-11-192, 2020-

Ohio-3836, ¶ 10, quoting State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-

2890, ¶ 8; State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15. When

reviewing a felony sentence, something that this court must do in this case, "[n]othing in

R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the

record and substitute its judgment for that of the trial court concerning the sentence that

best reflects compliance with R.C. 2929.11 and 2929.12." State v. Jones, 163 Ohio St.3d

242, 2020-Ohio-6729, ¶ 42. "The record must merely reflect that the trial court considered

the relevant statutory factors set forth in R.C. 2929.11 and 2929.12 prior to issuing its

decision." State v. Murphy, 12th Dist. Butler No. CA2021-05-048, 2021-Ohio-4541, ¶ 26,

citing Watkins, 2021-Ohio-163 at ¶ 50.

{¶ 16} Napier argues the trial court's decision sentencing him to serve the maximum

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36-month prison term was not supported by the purposes and principles of felony

sentencing set forth in R.C. 2929.11. Napier also argues the trial court's decision

sentencing him to serve the maximum 36-month prison term "fails to take into account the

seriousness and recidivism factors" listed in R.C. 2929.12. However, as the record

indicates, the trial court clearly took into consideration all relevant statutory factors set forth

in R.C. 2929.11 and 2929.12 prior to issuing its sentencing decision. The record also

indicates the trial court properly notified Napier that he would be subject to an optional three-

year postrelease control term and sentenced Napier within the permissible statutory range

for a third-degree felony offense. See R.C. 2929.14(A)(3)(b) ("[f]or a felony of the third

degree that is not an offense for which division (A)(3)(a) of this section applies, the prison

term shall be a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six

months"). Therefore, for these reasons, the trial court's decision sentencing Napier to serve

the maximum 36-month prison term was not clearly and convincingly contrary to law.

{¶ 17} In so holding, we note that there is "no language contained in R.C. 2929.11

which require[s] the trial court to make any specific findings as to the purposes and

principles of sentencing." State v. Kane, 5th Dist. Ashland No. 20-COA-012, 2020-Ohio-

5152, ¶ 11, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 31. "Likewise,

R.C. 2929.12 does not require the trial court to 'use specific language or make specific

findings on the record in order to evince the requisite consideration of the applicable

seriousness and recidivism factors.'" Id., quoting State v Arnett, 88 Ohio St.3d 208, 215

(2000). "All that is required is the trial court 'consider' the relevant statutory factors set forth

in R.C. 2929.11 and 2929.12 prior to issuing its sentencing decision." State v. Watkins,

12th Dist. Preble No. CA2020-03-005, 2021-Ohio-163, ¶ 50, citing State v. King, 12th Dist.

Butler No. CA2018-05-101, 2019-Ohio-1492 ¶ 9. That is exactly what the trial court did

here. Therefore, finding no merit to any of the arguments raised by Napier herein, Napier's

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single assignment of error lacks merit and is overruled.

{¶ 18} Judgment affirmed.

M. POWELL, P.J., and BYRNE, J., concur.

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