[Cite as State v. Murphy, 2016-Ohio-8147.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104297
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAYSON MURPHY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-595593-A
BEFORE: E.A. Gallagher, J., Keough, P.J. and Boyle, J.
RELEASED AND JOURNALIZED: December 15, 2016
ATTORNEY FOR APPELLANT
Erin R. Flanagan
75 Public Square, Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Denise Salerno
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Jayson Murphy appeals his ten-year sentence after he pled guilty to one
count of kidnapping in violation of R.C. 2905.01(A)(4). Murphy argues that the record
is “silent” as to the trial court’s analysis of the R.C. 2929.12 factors when imposing his
sentence and that his sentence is, therefore, “otherwise contrary to law” under R.C.
2953.08(G)(2)(b). For the reasons that follow, we affirm Murphy’s sentence.
Factual and Procedural Background
{¶2} On May 6, 2015, a Cuyahoga County Grand Jury indicted Murphy on two
counts of rape, two counts of complicity and one count of kidnapping in violation of R.C.
2905.01(A)(4). The charges stemmed from the alleged rape and kidnapping of B.H. by
Murphy and two other, unidentified males on May 12, 1995.
{¶3} On May 12, 1995, B.H. was` with a friend in the Flats in Cleveland. At
approximately 2:30 a.m., B.H. left the Flats and started to walk home. As B.H. walked
across the bridge at Merwin Avenue and Center Street, a car with three males pulled up
alongside her. The men grabbed B.H. by the hair and pulled her into the car. They
drove her to an apartment on the east side of Cleveland where the men beat her in the
head and face and forced her to perform oral sex. The driver of the vehicle, later
identified as Murphy, raped B.H. vaginally. After several hours, the men let B.H. go.
B.H. walked to a nearby gas station from where she contacted police and reported the
incident. The police took B.H. to Huron Hospital where she was treated for her injuries
and a rape kit was collected.
{¶4} B.H. provided a description of the perpetrators and the vehicle, including the
vehicle’s license plate number, to police. B.H. informed police that the driver of the
vehicle was referred to as “Jayson” and wore a necklace inscribed with the word “Duss.”
{¶5} The police learned that the vehicle was registered to Murphy and that Murphy
went by the nickname “Duff.” Detectives thereafter scheduled an interview with B.H.
but she did not show up. As a result, the case was closed.
{¶6} In October 2012, B.H.’s rape kit was sent out for testing. A match was
made through the Combined DNA Index System (“CODIS”) between Murphy and DNA
from semen found on B.H.’s skirt collected as part of the rape kit.
{¶7} On March 2, 2016, Murphy pled guilty to the kidnapping count. The trial
court found that Murphy entered his plea knowingly, intelligently and voluntarily and
accepted his guilty plea. In exchange for Murphy’s guilty plea on the kidnapping count,
the remaining counts against him were nolled.
{¶8} The trial court proceeded directly to sentencing. Prior to imposing sentence,
the court heard from Murphy, defense counsel and the state. Defense counsel stated that
Murphy had admitted to kidnapping B.H. and indicated that the state had agreed to the
plea because Murphy “cooperated and gave the names of other people involved.” He
asked that the court consider a concurrent sentence. Murphy stated only that he was told
his sentence would be run concurrently to the sentence he was then serving.
{¶9} The state’s attorney requested that consecutive sentences be imposed, setting
forth the facts of the alleged incident, explaining the impact the assault had on B.H. and
her husband and indicating that Murphy had “a criminal history going back to 1993.”
{¶10} At the time of his sentencing, Murphy was serving a 20-year prison sentence
for four unrelated sexual batteries founded in a 2009 case. The trial court indicated that
it had “read [Murphy’s] criminal background” and imposed a ten-year prison sentence on
the kidnapping charge, to be served concurrently to the sentence Murphy was serving in
the 2009 case, as follows:
After consideration of the record, oral statements made today, the purposes
and principles of sentencing, the seriousness and recidivism factors relevant
to this offense and this offender, and the need for deterrence, incapacitation,
rehabilitation and restitution, it is ordered that the defendant serve ten years
in prison on the sole count of this case with the sentence to be served
concurrently to the sentence he’s currently serving.
The trial court also imposed five years of mandatory postrelease control.
{¶11} Murphy appeals his sentence, raising as the sole assignment of error for
review that “[t]he trial court imposed a sentence ‘otherwise contrary to law.’”
Law and Analysis
{¶12} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 1, 21-23. Under R.C. 2953.08(G)(2), an appellate court must “review the record,
including the findings underlying the sentence * * * given by the sentencing court.” An
appellate court “may increase, reduce, or otherwise modify a sentence” or it may vacate a
sentence and remand the matter to the trial court for resentencing if it “clearly and
convincingly” finds either that: (1) “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 (2) “the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2);
Marcum at ¶ 1, 21-23. A sentence is contrary to law if the sentence falls outside the
statutory range for the particular degree of offense or if the trial court fails to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing
factors set forth in R.C. 2929.12. See, e.g., State v. Pawlak, 8th Dist. Cuyahoga No.
103444, 2016-Ohio-5926, ¶ 58; State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and
103414, 2016-Ohio-5234, ¶ 8, citing State v. Hinton, 8th Dist. Cuyahoga No. 102710,
2015-Ohio-4907, ¶ 10. When a sentence is imposed solely after consideration of the
factors in R.C. 2929.11 and 2929.12, “[a]n appellate court may vacate or modify any
sentence that is not clearly and convincingly contrary to law only if the appellate court
finds by clear and convincing evidence that the record does not support the sentence.”
Marcum at ¶ 23.
{¶13} Murphy does not dispute that his sentence is within the applicable statutory
range. He contends, however, that his sentence is “otherwise contrary to law” and
should be vacated because “the record is completely silent on the trial court’s
consideration of the [s]ection 2929.12 factors” and because the trial court’s imposition of
a sentence “without any specific rationale for doing so” violates his constitutional right to
due process. Murphy asserts that a trial court’s “silent contemplation” of the R.C.
2929.12 factors, without an “articulate[d] reasoned basis” for its imposition of a particular
sentence, “does not provide either a defendant or a reviewing court enough context to
understand and evaluate the validity of a particular punishment.” Murphy argues that he
“simply and rightfully wants to know ‘why?’” the trial court sentenced him to ten years in
prison for kidnapping, asserting that “[t]he record provides no context for him to
understand his punishment.”
{¶14} R.C. 2929.11 provides that “[a] sentence imposed for a felony shall be
reasonably calculated to achieve” two “overriding purposes” of felony sentencing: “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)-(B). The statute further provides that “[t]o achieve those 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.” R.C. 2929.11(A). A court imposing a
sentence for a felony “has discretion to determine the most effective way to comply with
the purposes and principles of sentencing set forth in section 2929.11 of the Revised
Code.” R.C. 2929.12(A). The sentencing court must consider various seriousness
factors set forth in R.C. 2929.12(B) and (C) and recidivism factors set forth in R.C.
2929.12(D) and (E) in determining the most effective way to comply with the purposes of
sentencing set forth in R.C. 2929.11.
{¶15} Although the trial court must consider the purposes of felony sentencing set
forth in R.C. 2929.11 as well as the sentencing factors set forth in R.C. 2929.12 when
sentencing a defendant on a felony, the trial court is not required to use particular
language or make specific findings on the record to demonstrate its consideration of those
purposes, principles and factors. Thus, the trial court is not required to state on the
record which factors it found pertinent in sentencing the defendant or to demonstrate how
it applied the purposes, principles and factors in deciding upon an appropriate sentence.
See, e.g., State v. Gaines, 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11; State v.
Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 72. It is
enough that the trial court state, in its sentencing entry, that it considered the required
factors. See, e.g., Gaines at ¶ 11.
{¶16} In this case, the trial court stated in its sentencing journal entry: “The Court
considered all required factors of the law. The Court finds that prison is consistent with
the purpose of R.C. 2929.11.” Further, the transcript from the sentencing hearing
indicates that the trial court did, in fact, consider both R.C. 2929.11 and 2929.12 in
sentencing. The trial court expressly stated at the sentencing hearing that, in imposing a
ten-year concurrent sentence, it considered “the purposes and principles of sentencing, the
seriousness and recidivism factors relevant to this offense and this offender, and the need
for deterrence, incapacitation, rehabilitation and restitution.” Murphy argues that the
trial court’s “mere recitation” of a partial list of R.C. 2929.12 factors without showing
how they apply specifically to his kidnapping offense “provides only lip-service to Ohio’s
felony sentencing statutes, as well as his due process rights.” However, this was
sufficient to establish that the trial court considered all of the relevant sentencing factors
in sentencing Murphy and that it fulfilled its obligations under R.C. 2929.11 and 2929.12.
See, e.g., Gaines at ¶ 11; Sutton at ¶ 72.
{¶17} Murphy also argues that “[w]hile this Court can find that the lower court
adhered to the statutory requirements of Ohio’s sentencing scheme, it has no information
to determine whether ten years of confinement comports with Appellant’s constitutional
rights.” Murphy cites no authority to support the proposition that his constitutional right
to due process imposes an obligation on the trial court that the trial court does not
otherwise have under Ohio’s sentencing statutes to explain why it imposed a particular
sentence. Further, Murphy does not contend that his ten-year sentence for kidnapping is
unconstitutional. Accordingly, there is no need for this court “to determine whether ten
years of confinement comports with Appellant’s constitutional rights.”
{¶18} Moreover, a trial court’s failure to issue findings or to provide a “specific
rationale” for the sentence it imposes does not preclude a meaningful review of a
defendant’s sentence by an appellate court. To the extent an appellate court is permitted
to review a defendant’s sentence, it can examine all the information in the record that the
trial court relied upon in determining the appropriate sentence, including the transcript of
the sentencing hearing. Murphy does not claim that his ten-year sentence was contrary to
law or otherwise improper aside from the trial court’s failure to provide a specific
rationale for imposing it. Accordingly, there is nothing here for this court to review.
{¶19} To the extent Murphy “simply and rightfully” wants to know “why” he
received a ten-year sentence, that is clear from the record. As the trial judge explained,
“the purposes and principles of sentencing, the seriousness and recidivism factors
relevant to this offense and this offender, and the need for deterrence, incapacitation,
rehabilitation and restitution” supported a ten-year sentence here. Murphy committed a
heinous crime. He admitted to kidnapping a young woman “by force, threat or deception
* * * for the purpose of engaging in sexual activity with her against her will.” The facts
of the incident as well as Murphy’s criminal history, including his prior conviction for
four other, unrelated sexual batteries, were discussed at the sentencing hearing. When he
addressed the court, Murphy expressed no remorse for his actions or the harm he had
caused the victim and her family; he simply asserted that he was entitled to a concurrent
sentence. The only potential mitigating factors offered by the defense was the fact that
Murphy had admitted to his crime and defense counsel’s claim that Murphy had
cooperated with police and assisted in identifying the other males involved in the
incident. Surely, this record provides sufficient “context” for Murphy to understand
“why” the trial court sentenced him to ten years in prison.
{¶20} Murphy’s sentence is not clearly and convincingly “otherwise contrary to
law.” As such, Murphy’s assignment of error lacks merit and is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY J. BOYLE, J., CONCUR
State v. Murphy
Combined Opinion