State v. Johnson

[Cite as State v. Johnson, 2023-Ohio-2008.]

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

State of Ohio Court of Appeals No. L-22-1095

Appellee Trial Court No. CR0202101710

v.

Adrian Johnson, Jr. DECISION AND JUDGMENT

Appellant Decided: June 16, 2023

*****

Julia R. Bates, Lucas Count Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Brian A. Smith, for appellant.

*****

MAYLE, J.

{¶ 1} Appellant, Adrian Johnson Jr., appeals the March 30, 2022 judgment of the

Lucas County Court of Common Pleas sentencing him to an indefinite period of 4 to 6

years in prison. For the following reasons, we affirm.
 I. Background and Facts

{¶ 2} Johnson was charged with one count of felonious assault in violation of R.C.

2903.11(A)(1), a second-degree felony. Johnson and the state reached an agreement

under which Johnson would plead no contest to the indictment, and the state would

recommend a prison term of 4 to 6 years.

{¶ 3} At the plea hearing, the trial court engaged Johnson in a colloquy and

reviewed his rights under Crim.R. 11. As relevant to this appeal, the court explained

Johnson’s no-contest plea as follows: “You are entering a plea of no contest and a plea

of no contest is not an admission of guilt. * * * However, by entering this plea you’re

telling me that you’re not objecting to the charges, nor are you going to object to a

statement from the Prosecutor as to what the evidence would be if this matter were to

proceed to trial.” The plea agreement that Johnson signed contained similar information:

“By pleading no contest, I understand the Court will decide my guilt on the offenses to

which I have pled based upon the facts as set forth in the indictment and upon the

statement by the prosecutor about the evidence which would have been presented at

trial.”

{¶ 4} As the factual basis for Johnson’s plea, the state said, “on or about March

1st, 2021 the Defendant, Adrian Johnson, did knowingly cause serious physical harm to

another. Specifically, on March 1st, 2021 the Defendant assaulted corrections officer

2.
D.M. The Defendant picked the corrections officer up and body slammed him. The

officer was transported to the hospital, [and] he did sustain serious injury * * *.”

{¶ 5} The court accepted Johnson’s plea and found him guilty. It also ordered a

presentence investigation report (“PSI”) and set the matter for sentencing.

{¶ 6} At the sentencing hearing, Johnson’s attorney explained that Johnson was

serving a prison sentence on a Cuyahoga County case and had approximately seven and

one-half years remaining on his sentence. While he was in prison, Johnson “had no other

problems” at the institution, and his case manager described him as “mild-mannered,

agreeable, not a troublemaker * * *.” Regarding the assault underlying the indictment,

counsel said that Johnson “did have a confrontation with the corrections officer, there

was a video on the incident, it does appear that the corrections officer did spray mace at

[Johnson], but [Johnson] did take action which did cause injuries to the corrections

officer.” He also said that Johnson’s actions that day were “not his character.” Counsel

believed that Johnson’s assault of a corrections officer was an “isolated incident[.]”

Additionally, counsel noted that Johnson had graduated high school and taken some

college classes. Counsel also requested that the court impose the sentence in this case

concurrently with the sentence that Johnson was serving in the Cuyahoga County case.

{¶ 7} When he spoke in his own behalf, Johnson told the court that he is “a nice

person[,]” he is “not a bad person, this was just a mistake that got out of hand.” He

explained that he did not try to provoke or cause an argument with the corrections officer,

3.
but “[t]he CO really just, kind of, caught [him] on a bad day and really provoked [him].”

As Johnson explained the incident:

[the corrections officer] said some stuff to me and he addressed me

by my shirt not being buttoned. I walked away, and then he made a

comment saying that he was gonna dump me if I walked up on him again. I

asked him, what did he say? And he maced me. And then I, fearing for my

life—being in prison over four years I just seen COs and other inmates get

sprayed and the other inmates run up and jump—intervene and jump into

the fight, people get stabbed, get killed. * * * He maced me, I couldn’t see,

and I, really, just defended myself. And I never meant to hurt him severely

or anything like that though.

Johnson’s statements to the trial court are consistent with his version of events in the PSI.

{¶ 8} Before imposing sentence, the trial court reviewed some of the pertinent

information from Johnson’s PSI:

the corrections officer caught you on a bad day, so you picked him

up and body slammed him to the ground. This rendered him unconscious.

He suffered a concussion, his eye was swollen shut, he lost vision in his eye

for weeks. He still suffers from that incident. Also, you caused him

psychological harm that day, he has flashbacks and nightmares. * * * This

even caused him to have to terminate his employment. He could have been

4.
 killed, Mr. Johnson. You’re very lucky that he wasn’t. * * * [Y]ou are

serving a sentence at the Toledo Correctional Institution now, where you

committed this offense. You have a total of three prior felony convictions

and 11 misdemeanor convictions. And you admit you assaulted the officer,

but you lack genuine remorse.

The court then sentenced Johnson to an indefinite prison term of 4 to 6 years.

{¶ 9} The court ordered Johnson to serve this prison term consecutively to the

sentence that he was serving in the Cuyahoga County case. To support its imposition of

consecutive sentences, the trial court determined that

a consecutive sentence is necessary to protect the public from future

crime or to punish [Johnson], and not disproportionate to the seriousness of

[Johnson’s] conduct or the danger [Johnson] poses. * * * [Johnson] was

serving a sentence at the time he committed the offense. The harm caused

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 [Johnson’s] conduct, and [Johnson’s] criminal history

requires consecutive sentences.

{¶ 10} In its March 30, 2022 sentencing entry, the court repeated its reasons for

imposing consecutive sentences:

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 [C]onsecutive sentence [sic] are necessary to protect the public from

future crime or to punish [Johnson] and are not disproportionate to the

seriousness of [Johnson’s] conduct and to the danger [Johnson] poses to the

public. * * * [T]he harm caused was great or unusual such that no single

prison term is adequate, [Johnson] was serving a prison sentence when the

offense was committed and [Johnson’s] criminal history demonstrates that

consecutive sentences are necessary to protect the public * * *.

{¶ 11} Johnson now appeals, raising two assignments of error:

I. Appellant’s no contest plea was not knowingly, intelligently, and

voluntarily made, because the trial court failed to properly advise Appellant

of the consequences of a no contest plea, in compliance with Crim.R. 11(B)

and Appellant’s right to Due Process under the Fifth and Fourteenth

Amendments to the United States Constitution and Article I, Section 16 of

the Ohio Constitution.

II. The record does not support the trial court’s imposition of

consecutive sentences on Appellant pursuant to R.C. 2929.14(C)(4).

II. Law and Analysis

A. The trial court’s imperfect compliance with Crim.R. 11 did not prejudice
Johnson.

{¶ 12} In his first assignment of error, Johnson argues that he did not knowingly,

intelligently, and voluntarily plead no contest because the trial court did not advise him of

6.
the effects of his no-contest plea, as required by Crim.R. 11(B) and (C)(2)(b). He

contends that the trial court failed to substantially comply with Crim.R. 11(B), and that

he would not have entered the plea if the court had properly advised him. As support for

this argument, he points to his statement at sentencing that the corrections officer sprayed

him with mace before he assaulted the officer. He claims that this is evidence that he had

an affirmative defense to the felonious assault charge and if he was “properly advised that

by entering a no contest plea, he would be accepting the facts alleged in the Indictment as

true, without an opportunity to contest them or provide a differing account of what took

place, he would not have entered a no contest plea.”

{¶ 13} The state responds that Johnson knowingly, intelligently, and voluntarily

entered his plea because the trial court adequately advised him of the consequences of the

plea. Further, the state contends that, assuming the court’s advisement was deficient,

Johnson cannot show that he was prejudiced. Finally, the state argues that Johnson’s

statement at sentencing did not indicate a lack of understanding of the plea he made or

contradict the state’s version of events.

{¶ 14} A plea of no contest in a criminal case “must be made knowingly,

intelligently, and voluntarily. Failure on any of those points renders enforcement of the

plea unconstitutional under both the United States Constitution and the Ohio

Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Under

Crim.R. 11(C)(2), “felony defendants are entitled to be informed of various constitutional

7.
and nonconstitutional rights, prior to entering a plea.” State v. Griggs, 103 Ohio St.3d

85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 6. When an appellant seeks to vacate his plea on

appeal because

the plea was not entered in a knowing, intelligent and voluntary

manner due to the trial court’s failure to comply with Crim.R. 11, “the

questions to be answered are simply: (1) has the trial court complied with

the relevant provision of the rule? (2) if the court has not complied fully

with the rule, is the purported failure of a type that excuses [an appellant]

from the burden of demonstrating prejudice? and (3) if a showing of

prejudice is required, has the [appellant] met that burden?”

(Brackets sic.) State v. Morgan, 6th Dist. Lucas Nos. L-20-1156, L-21-1017, and L-21-

1018, 2021-Ohio-3996, ¶ 15, quoting State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-

2765, 164 N.E.3d 286, ¶ 17. Unless the trial court fails to explain a constitutional right in

Crim.R. 11(C)(2)(c) or completely fails to comply with a portion of Crim.R. 11(C)—e.g.,

by failing to mention mandatory postrelease control, State v. Sarkozy, 117 Ohio St.3d 86,

2008-Ohio-509, 881 N.E.2d 1224, ¶ 22—the appellant is required to show prejudice to

have his plea vacated. Dangler at ¶ 13-16.

{¶ 15} Under Crim.R. 11(C)(2)(b), a trial court cannot accept a no-contest plea

without addressing the defendant and “[i]nforming the defendant of and determining that

the defendant understands the effect of the plea of * * * no contest, and that the court,

8.
upon acceptance of the plea, may proceed with judgment and sentence.” To inform the

defendant of the effect of a no-contest plea, the trial court must inform the defendant that

“[t]he plea of no contest is not an admission of defendant’s guilt, but is an admission of

the truth of the facts alleged in the indictment, * * * and the plea or admission shall not

be used against the defendant in any subsequent civil or criminal proceeding.” Crim.R.

11(B)(2); State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 25.

{¶ 16} In Johnson’s case, we find that the trial court did not fully comply with

Crim.R. 11(B)(2) and (C)(2)(b). At no point did the court tell Johnson that a no-contest

plea is an admission of the truth of the facts alleged in the indictment, or that the plea and

admission cannot be used against him in any future civil or criminal proceedings.

Crim.R. 11(B)(2); Jones at ¶ 25. However, the court’s statement to Johnson that entering

a no-contest plea meant that he is “not objecting to the charges * * *” or “object[ing] to a

statement from the Prosecutor as to what the evidence would be * * *” at trial shows that

the court did not completely fail to comply with Crim.R. 11(B)(2) and (C)(2)(b). See

State v. Krauzer, 6th Dist. Lucas No. L-19-1018, 2020-Ohio-608, ¶ 11, 14 (Trial court

did not completely fail to comply with Crim.R. 11 when it explained that “by entering a

no contest plea, appellant was not disputing the allegations and that the court would rely

on the state’s representation of the evidence against him.”).

{¶ 17} The trial court’s imperfect compliance with Crim.R. 11(B) and (C)(2)(b) is

not an error that excuses Johnson from showing prejudice, see Dangler at ¶ 13-16, so

9.
Johnson must show that the trial court’s advisement about the effect of his no-contest

plea prejudiced him. The test for prejudice is “‘whether the plea would have otherwise

been made.’” Id. at ¶ 16, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990). Prejudice must be established on the face of the record. Id. at ¶ 24, citing

Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913,

11 N.E.3d 243, ¶ 26.

{¶ 18} The explanation that the trial court gave was sufficient to convey to

Johnson that he was not admitting his guilt and that his plea was based on the facts in the

indictment provided by the state. See Krauzer at ¶ 11, 14. Although the court did not tell

Johnson that his plea or admission could not be used against him in future proceedings,

that information is beneficial to a defendant, so its omission cannot show that the

defendant was prejudiced (i.e., that the defendant would not have entered his plea if he

knew that information). Id. at ¶ 15, citing State v. Pettaway, 6th Dist. Lucas No. L-13-

1093, 2014-Ohio-3513, ¶ 9; State v. Conard, 11th Dist. Ashtabula No. 2019-A-0065,

2020-Ohio-6673, ¶ 39, citing State v. Dundics, 2016-Ohio-1368, 62 N.E.3d 1013, ¶ 21

(11th Dist.); and Cleveland v. Kutash, 8th Dist. Cuyahoga No. 99509, 2013-Ohio-5124, ¶

22.

{¶ 19} Johnson also argues that his statements at the sentencing hearing—

specifically, his statement that the corrections officer “maced” him—show that he “did

not subjectively understand the consequences of a no contest plea under Crim.R. 11(B) *

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* *.” He claims that “[h]ad [he] been properly advised of the consequences of a no

contest plea, he would have chosen to try the case, either to the trial court or to a jury, and

to present evidence and give his version of the facts.” But the record does not support

this argument. Johnson does not claim that he or his attorney were unaware at the time

Johnson entered his plea that the corrections officer had sprayed mace on Johnson. The

plea agreement that Johnson signed specifically said that “[t]he charges have been

explained to me by my attorney and the Court. I understand the nature of the charges

and the possible defenses I might have.” (Emphasis added.) Neither Johnson nor his

attorney objected to the facts that the state presented at the plea and sentencing hearings.

And Johnson did not attempt to withdraw his plea. Taken together, this falls short of

demonstrating that Johnson would not have pleaded no contest if the trial court had

properly advised him of the effect of a no-contest plea.

{¶ 20} Johnson makes much of the fact that the state did not mention the

corrections officer spraying him with mace in its statement of facts at the plea hearing.

But, in a felony case, the state is not required to provide an explanation of circumstances

before the court can find the defendant guilty. State v. Rohda, 6th Dist. Lucas Nos. L-05-

1278 and L-05-1280, 2006-Ohio-6463, ¶ 21. All that is required is that the indictment,

information, or complaint contain allegations sufficient to state a felony offense; if it

does, the trial court must find the defendant guilty. State v. Bird, 81 Ohio St.3d 582, 584,

11.
692 N.E.2d 1013 (1998), citing Crim.R. 11(B)(2); and State ex rel. Stern v. Mascio, 75

Ohio St.3d 422, 425, 662 N.E.2d 370 (1996).

{¶ 21} An indictment that states the charged offense in terms of the statute—

without more—is sufficient to convict a defendant following a no-contest plea. E.g.,

State v. Magnone, 2016-Ohio-7100, 72 N.E.3d 212, ¶ 48, 53 (2d Dist.). The exception to

this rule is when the state provides an explanation of circumstances that “absolutely

negates” an element of the charged offense. State v. Huffman, 3d Dist. Hancock No. 5-

19-37, 2020-Ohio-1062, ¶ 9; Rohda at ¶ 21. In that case, the trial court cannot find the

defendant guilty. Id. But self-defense is an affirmative defense, and an affirmative

defense is not an element of a crime. State v. Messenger, Slip Opinion No. 2022-Ohio-

4562, --- N.E.3d ----, ¶ 24. Importantly, a “claim of self-defense is not necessarily

inconsistent with [a defendant’s] plea of no contest to felonious assault, or necessarily

indicative of a lack of understanding of the nature and effect of the plea.” State v. Ormes,

2d Dist. Montgomery No. 20084, 2004-Ohio-2194, ¶ 32.

{¶ 22} The indictment alleged that Johnson “did knowingly cause serious physical

harm to another * * *” in violation of R.C. 2903.11(A)(1). This is sufficient to charge

Johnson with felonious assault under R.C. 2903.11(A)(1), and, if assumed true, to convict

Johnson following a no-contest plea. See Bird at 584-585. Although the state provided

additional factual information to the court, the addition of Johnson being maced to the

explanation of circumstances would not have required the trial court to find Johnson not

12.
guilty. That fact—either standing alone or combined with the facts the state presented to

the trial court—does not absolutely negate any of the elements of felonious assault; the

information before the court would still show that Johnson knowingly caused physical

harm to the corrections officer.

{¶ 23} Further, Johnson acknowledged in the plea agreement that he knew of any

potential defenses that he might have to the charge of felonious assault before he pleaded

no contest. He does not argue that either he or his attorney were unaware of the facts that

he might have relied on to claim self-defense before Johnson entered his plea, or that his

attorney failed to advise him about the potential availability of the defense. Nor did

Johnson or his attorney try to claim at sentencing that the corrections officer spraying

Johnson with mace was a defense to the charge; they mentioned it to try to mitigate the

sentence the trial court was going to impose. On this record, we do not see how the state

saying at the plea hearing that Johnson was maced before assaulting the corrections

officer would have changed how Johnson proceeded with the case.

{¶ 24} Because the record does not support Johnson’s argument that his plea was

not knowingly, voluntarily, and intelligently made, his first assignment of error is not

well-taken.

B. The record supports consecutive sentences.

{¶ 25} In his second assignment of error, Johnson argues that the record does not

support the trial court’s imposition of consecutive sentences. He contends that (1) there

13.
were “mitigating circumstances” that weighed against the trial court’s proportionality

finding; (2) his clean disciplinary record while in prison weighed against the trial court’s

proportionality finding; (3) the length of time remaining on his Cuyahoga County

sentence weighed against the trial court’s finding under R.C. 2929.14(C)(4)(c); and (4)

his educational history weighed against the trial court’s proportionality finding.

{¶ 26} The state responds that Johnson’s challenge of his consecutive sentences is

really a disguised attempt to challenge the trial court’s application of R.C. 2929.11 and

2929.12. It also contends that Johnson’s complaint is not that the record does not support

the trial court’s findings; rather, the state interprets Johnson’s arguments as disputing the

weight that the trial court gave to each factor.

1. Standard of review

{¶ 27} We review sentencing challenges under R.C. 2953.08(G)(2). The statute

allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate

the sentence and remand the matter for resentencing only if it 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).

{¶ 28} Because Johnson challenges the trial court’s imposition of consecutive

sentences under R.C. 2929.14(C)(4), R.C. 2953.08(G)(2)(a) applies. To modify or vacate

consecutive sentences under R.C. 2953.08(G)(2)(a), we must clearly and convincingly

find that the record does not support the sentencing court’s findings under R.C.

2929.14(C)(4). A sentencing court must make its findings under R.C. 2929.14(C)(4) at

the sentencing hearing and incorporate them into the sentencing entry, but it is not

required to state the reasons underlying its decision. State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.

{¶ 29} The Ohio Supreme Court recently clarified how appellate courts should

review consecutive sentences in State v. Gwynne, Slip Opinion No. 2022-Ohio-4607, ---

N.E.3d ----.1 The court explained that the clear-and-convincing standard of review in

R.C. 2953.08(G)(2) “indicates that the legislature did not intend for appellate courts to

defer to a trial court’s findings but to act as a second fact-finder in reviewing the trial

court’s order of consecutive sentences.” Id. at ¶ 20. Thus, our review of the trial court’s

findings is de novo. Id. at ¶ 27.

{¶ 30} Because appellate review is de novo, “the appellate court essentially

functions in the same way as the trial court when imposing consecutive sentences in the

first instance.” Id. at ¶ 21. But there are three important differences: (1) the appellate

1
We note that a motion for reconsideration of this decision is pending before the
Supreme Court.

15.
court can only review the R.C. 2929.14(C)(4) findings that the trial court actually made

(i.e., “a reviewing court cannot determine for itself which of the three permissible

findings within R.C. 2929.14(C)(4)(a)-(c) might apply * * *”); (2) the appellate court

uses a clear-and-convincing standard, as opposed to the trial court’s preponderance-of-

the-evidence standard; and (3) the “ultimate question” before the appellate court is

inverted (i.e., the trial court must determine whether each finding is “more likely—or

more probably—true than not, * * *” but the appellate court must determine “whether it

has a firm belief or conviction that the proposition of fact represented by each finding is

not true * * *”). (Emphasis added.) Id.

{¶ 31} The court went on to provide “practical guidance” for appellate review of

consecutive sentences. Id. at ¶ 24. First, the appellate court must ensure that the trial

court made each of the findings required by R.C. 2929.14(C)(4). Id. at ¶ 25. To impose

consecutive sentences, a trial court is required to make three findings: (1) consecutive

sentences are “necessary to protect the public from future crime or to punish the offender

* * *;” (2) imposition of consecutive sentences is not “disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public * * *;” and

(3) one of the factors in R.C. 2929.14(C)(4)(a) to (c) applies. R.C. 2929.14(C)(4); State

v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. The options

for the third finding under R.C. 2929.14(C)(4) are:

16.
 (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

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.

If the trial court fails to make these findings, the sentence is contrary to law. Gwynne,

Slip Opinion No. 2022-Ohio-4607, --- N.E.3d ----, at ¶ 25.

{¶ 32} The second step the appellate court must take is determining if the trial

court’s findings are clearly and convincingly supported by the record. Id. at ¶ 26. The

court must vacate or modify the appellant’s sentence “if even one of the consecutive-

sentence findings is found not to be supported by the record under the clear-and-

convincing standard * * *.” Id. The clear-and-convincing standard requires the appellate

court to have “a firm conviction or belief” that the evidence in the record does not

17.
support the trial court’s findings. Id. at ¶ 27. The Supreme Court made clear that R.C.

2953.08(G)(2) “does not permit—much less require or expect—an appellate court to

modify or vacate an order of consecutive sentences only when it is unequivocally certain

that the record does not support the findings.” Id.

{¶ 33} Reviewing the record for clear and convincing evidence requires the

appellate court to (1) determine if there is some evidentiary support in the record for the

trial court’s consecutive sentence findings, and (2) ensure that whatever evidentiary basis

exists is “adequate to fully support the trial court’s consecutive-sentence findings.” Id. at

¶ 29.

2. The trial court’s findings are not clearly and convincingly unsupported by the
record.

{¶ 34} Johnson concedes—and we agree—that the trial court made all of the

required consecutive-sentence findings on the record and in the sentencing entry. Thus,

our review will focus on whether the record supports the trial court’s findings.

{¶ 35} Johnson primarily argues that the trial court’s proportionality determination

is unsupported by the record. The “proportionality analysis [required by R.C.

2929.14(C)(4)] ‘does not occur in a vacuum, but, instead, focuses upon the defendant’s

current conduct and whether this conduct, in conjunction with the defendant’s past

conduct, allows a finding that consecutive service is not disproportionate [to the

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

18.
public].’” State v. Kelly, 2d Dist. Clark No. 2020-CA-8, 2021-Ohio-325, ¶ 80, quoting

State v. Crim, 2d Dist. Clark No. 2018-CA-38, 2018-Ohio-4996, ¶ 11.

{¶ 36} Johnson’s “‘current conduct’” that the trial court had to consider was him

body slamming a corrections officer following a verbal exchange and causing significant,

lasting injuries to the corrections officer. The court also considered Johnson’s lack of

remorse regarding the incident. Weighing against this, Johnson points to the facts that

the corrections officer sprayed him with mace before the altercation became physical, he

did not have a disciplinary record while in prison, and he has education and training that

make him employable and, thus, less likely to reoffend. However, when the trial court

looked at the fight combined with Johnson’s past harassing and violent conduct—

including juvenile adjudications for disorderly conduct, attempted assault, resisting arrest,

and aggravated menacing (among others) and adult convictions of felonious assault and

aggravated robbery with a firearm specification—the court concluded that consecutive

sentences were not disproportionate to the seriousness of Johnson’s conduct and the

danger he poses to the public. Based on this information, we cannot say that we have a

“firm belief or conviction” that the trial court’s proportionality analysis is unsupported by

the evidence in the record. Gwynne, Slip Opinion No. 2022-Ohio-4607, --- N.E.3d ----,

at ¶ 23.

{¶ 37} Regarding the trial court’s finding that Johnson’s criminal history showed

that consecutive sentences were necessary to protect the public from future crime by

19.
Johnson, before a trial court makes a finding under R.C. 2929.14(C)(4)(c), “it must

determine whether the defendant’s criminal history demonstrates the need for a lengthy

prison term to adequately protect the public from the threat of future crimes by the

defendant.” Id. at ¶ 15. But a trial court is not required to state the reasons underlying its

decision to impose consecutive sentences; it must only make the statutorily-required

findings at the sentencing hearing and in the sentencing entry. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus.

{¶ 38} Johnson argues that the trial court ignored the length of the Cuyahoga

County prison term—which will keep him incarcerated until 2029—and when the prison

term is combined with his criminal history, the record does not support consecutive

sentences. However, the trial court had Johnson’s PSI before it, and information about

the Cuyahoga County sentence is in the PSI. This is sufficient to show that the trial court

took the Cuyahoga County sentence into account in determining that consecutive

sentences were appropriate. See State v. Boyd, 7th Dist. Belmont No. 21 BE 0048, 2023-

Ohio-1120, ¶ 68 (appellant’s criminal history supported consecutive sentences, despite

the trial court’s cursory reference to his record at the sentencing hearing, because the PSI

detailed appellant’s past crimes). Further, the PSI showed that Johnson exhibited a

pattern of criminal behavior, including offenses of violence and use of firearms, that

began when he was 16 years old and continued despite the imposition of sanctions—

including prison time. On balance, we cannot say that we have a firm belief or

20.
conviction that the trial court’s finding under R.C. 2929.14(C)(4)(c) is unsupported by

the evidence in the record.

{¶ 39} Johnson’s second assignment of error is not well-taken.

C. The state did not properly raise the issue of postrelease control.

{¶ 40} Finally, we must address the notice of conceded error that the state filed

with its merit brief. In it, the state asserts that “it has conceded reversible error * * *

relating to the imposition of post-release control * * *.”

{¶ 41} The state’s notice appears to be an attempt to comply with 6th

Dist.Loc.App.R. 10(H), which states that “[i]f a party has conceded reversible error in the

filing of a brief, that party and/or the opposing party, shall file a notice or a joint notice of

conceded error with the clerk within 10 days advising the court of the conceded error.”

Johnson, however, did not raise any issue regarding postrelease control in his merit brief,

nor did he address the state’s notice in his reply brief. Accordingly, Johnson has not

raised any error relating to postrelease control for the state to “concede.”

{¶ 42} Moreover, under App.R. 3(C)(1), “[w]hether or not an appellee intends to

defend an order on appeal, an appellee who seeks to change the order * * * shall file a

notice of cross appeal with the clerk of the trial court * * *.” (Emphasis added.) When

the appellee “intends to defend an order appealed by an appellant on a ground other than

that relied on by the trial court but [] does not seek to change the order * * *[,]” it is not

required to file a cross-appeal. App.R. 3(C)(2). If the appellee does not file a notice of

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cross appeal when one is required, we do not have the authority to consider the appellee’s

arguments. State v. Wilcox, 1st Dist. Hamilton No. C-190495, 2021-Ohio-2282, ¶ 7-8;

see also State v. Brazil, 6th Dist. Wood No. WD-13-040, 2014-Ohio-995, ¶ 14, citing

State v. Oke, 6th Dist. Wood Nos. WD-04.082 and WD-04-083, 2005-Ohio-6525, ¶ 54.

{¶ 43} In this case, the state is doing more than asking us to decide this appeal on

a ground not used by the trial court; it is asking us to modify the trial court’s sentencing

order. But Johnson did not assign any error relating to postrelease control, and the state

did not file a notice of cross appeal. Accordingly, we do not have authority to consider

the “error” raised by the state in its notice of conceded error. See Wilcox at ¶ 8; Brazil at

¶ 14.

III. Conclusion

{¶ 44} For the foregoing reasons, the March 30, 2022 judgment of the Lucas County

Court of Common Pleas is affirmed. Johnson is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

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

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 State of Ohio
v. Adrian Johnson, Jr.
L-22-1095

Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, 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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