State v. Williams
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[Cite as State v. Williams, 2021-Ohio-4643.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, Plaintiff-Appellee, v. RICHARD WILLIAMS, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 20 MA 0041 Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 19 CR 453 BEFORE: Carol Ann Robb, Cheryl L. Waite, Judges. Mary Jane Trapp, Judge of the Eleventh District Court of Appeals, Sitting by Assignment.. JUDGMENT: Affirmed. Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Chief, Criminal Division, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and –2– Atty. Rhys B. Cartwright-Jones, 42 N. Phelps St., Youngstown, Ohio 44503, for Defendant-Appellant. Dated: December 15, 2021 Robb, J. {¶1} Defendant-Appellant Richard Williams appeals three judgments entered in the Mahoning County Common Pleas Court. His assignment of error relates to the fiveyear sentence in one case where the state recommended three years. Appellant contends the trial court’s sentencing statement, which mentioned a failure to appear and the issuance of bench warrants, was not supported by the record. For the following reasons, the trial court’s judgment is affirmed. STATEMENT OF THE CASE {¶2} In 2016 CR 384, Appellant was bound over after a preliminary hearing in the municipal court and then released on bond. He was then indicted on May 12, 2016 for two counts of felonious assault with three-year firearm specifications. His bond was continued by the common pleas court, and he appeared for some pretrials. On August 25, 2016, a superseding indictment was issued to add five-year firearm specifications for discharging the firearm from a motor vehicle. The arraignment was set for September 6, 2016 but an officer reported Appellant was unable to be served with the new summons. On September 20, 2016, after continued arraignments, a bench warrant was issued. {¶3} In 2017 CR 286, Appellant was indicted on March 16, 2017 for forgery, tampering with records, and identity fraud. The state requested the issuance of a warrant upon the indictment, and the warrant was issued by the sheriff the next day. On March 28, 2017, the case was called for arraignment, the court continued the proceedings for a week due to the lack of service, and the prosecutor was ordered to notify Appellant’s bondsman. This occurred again at the continued arraignment. At the third attempted arraignment, the court issued a bench warrant on April 11, 2017. {¶4} Appellant was not arrested until November 1, 2018, more than two years after the bench warrant was issued in 2016 CR 384 (where he had been served with the initial indictment but not the superseding indictment). His bond was not reinstated. The events during his capture resulted in his June 6, 2019 indictment in 2019 CR 453. On Case No. 20 MA 0041 –3– September 11, 2019, Appellant pled guilty in each case with the state agreeing to recommend concurrent sentences as to all three cases. {¶5} In 2019 CR 453, Appellant pled guilty to felonious assault (a first-degree felony), possession of a fentanyl-related compound (a fourth-degree felony based on the amount), having a weapon while under disability (a third-degree felony), and receiving stolen property (a fourth-degree felony as the property was a firearm). The state agreed to dismiss the charge of failure to comply with an order or signal of a police officer (a thirddegree felony) and to recommend three years in prison for the felonious assault with unspecified concurrent prison sentences on the other counts, plus a mandatory threeyear driver’s license suspension and restitution to the Mahoning Valley Law Enforcement Task Force. However, the court decided to impose five years in prison for this felonious assault, along with concurrent sentences of twelve months on the other three counts. {¶6} In 2016 CR 384, Appellant pled guilty to two counts of felonious assault (second-degree felonies). The state agreed to dismiss the firearm specifications and recommend a sentence of two years. The trial court sentenced Appellant to three years in prison on each count to run concurrently. {¶7} In 2017 CR 286, Appellant pled guilty to tampering with records (a third- degree felony as they were government records) and identity fraud (a fifth-degree felony). The state agreed to dismiss the forgery charge (a fifth-degree felony). The court imposed the recommended concurrent twelve-month sentences. {¶8} Appellant filed one notice of appeal listing all three trial court cases and attaching the three different October 24, 2019 sentencing entries. ASSIGNMENT OF ERROR {¶9} Appellant’s sole assignment of error focuses on the sentence in 2019 CR 453 and contends: “The trial court erred in imposing a five year prison sentence on Richard Williams, over and above an agreed-upon sentence of three years.” {¶10} Appellant contests the five-year sentence for first-degree-felony felonious assault, which became the total sentence for the three cases as they were run concurrently with each other. He points out: the state agreed to recommend a three-year sentence for this felonious assault (with concurrent sentences in the other cases where Case No. 20 MA 0041 –4– the state recommended lower sentences); the court asked if it was a jointly-recommended sentence; the state indicated it was; and the defense did not argue for a lower sentence. (Sent.Tr. 5-6). The court also pointed out Appellant previously said he understood the court was not bound by the recommended sentence. {¶11} Appellant acknowledges the trial court was not bound to accept the recommended sentence. See, e.g., State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio1, 922 N.E.2d 923, ¶ 28 (the court is not bound by a jointly-recommended sentence). However, Appellant contends the five-year sentence should be vacated because it was based on facts that were not supported by the record. Specifically, he states the court deviated from the recommended sentence because it believed he absconded from justice. Appellant notes he was not served with the superseding indictment in 16 CR 384 or the indictment in 17 CR 286 until his arrest in November 2018, after which he remained incarcerated. {¶12} As to the reviewability of his sentence, Appellant relies on a case where this court reversed consecutive sentences because the trial court’s findings were not supported by the record; the trial court incorrectly said the defendant had a criminal record and court sanction history. See State v. Lucicosky, 7th Dist. Mahoning No. 17 MA 0141, 2018-Ohio-4563. Notably, Lucicosky was a consecutive sentencing case where we were statutorily required to review the findings under R.C. 2953.08(G)(2)(a) to ascertain if the record supported them. That sentencing statute provides the sentence can be reversed if the reviewing court clearly and convincingly finds (a) the record does not support the findings under specifically-cited statutes or (b) the sentence is otherwise contrary to law. R.C. 2953.08(G)(2) (the standard of review is not abuse of discretion). {¶13} In arguing the record does not clearly and convincingly support the trial court’s findings under the relevant statutes or is otherwise contrary to law, Appellant also relies on the Supreme Court’s Marcum case. In that case, the Court held “an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Case No. 20 MA 0041 –5– {¶14} The Marcum Court additionally said “it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court.” Id. at ¶ 23. However, this statement has since been declared dicta and rejected. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 28. {¶15} As the state points out, the Supreme Court in Jones decided a reviewing court cannot use division (G)(2)(a) of R.C. 2953.08 to review whether the record supports R.C. 2929.11 or R.C. 2929.12 findings as those statutes are not listed in (G)(2)(a). Jones, 163 Ohio St.3d 242 at ¶ 27-29. The Court noted “neither R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual findings on the record.” Id. at ¶ 20. The Jones Court concluded R.C. 2953.08(G) does not allow an appellate court to review whether the record supports the sentence under R.C. 2929.11 and R.C. 2929.12 as this would allow the appellate court to substitute its judgment for the trial court on the selection of a sentence. Id. at ¶ 30-32, 38-39, 41-42. And, the Court opined the statutory language “otherwise contrary to law” meant something other than an appellate court finding “the record does not support the sentence.” Id. at ¶ 38. See also State v. Toles, __ Ohio St.3d __, 2021-Ohio-3531, __ N.E.3d __ (affirming based on Jones where a defendant argued the record did not support the findings of organized activity and no mitigating factors). {¶16} Regardless, Appellant’s argument is without merit as there is no clear and convincing indication the court relied on a factor that was unsupported by the record or the sentence was otherwise contrary to law. In discussing all of the offenses, the trial court disclosed its consideration of the presentence-investigation (PSI), the purposes and principles of sentencing under R.C. 2929.11, and the seriousness and recidivism factors under R.C. 2929.12. (Sent.Tr. 8). See also (10/24/2019 J.E.s). The court also suggested it considered information in police reports. The court emphasized Appellant’s criminal history, continuation of life-threatening behaviors, and likelihood of recidivism. {¶17} Appellant complains the court considered the “failure to appear for court hearings” and the court observed “you've been absent from this court for a couple years. I know several bench warrants have been issued in the past * * *.” (Sent.Tr. 9). The court thereafter discussed each case separately. (Sent.Tr. 9-10). In imposing the five-year Case No. 20 MA 0041 –6– sentence in the 2019 case, which was still well under the maximum for a first-degree felony, the court expressed: “I felt that [the recommended three-year sentence] wasn't appropriate under the circumstances and based on your actions and your past history.” (Sent. Tr. 10). {¶18} Appellant suggests the situation surrounding the superseding indictment in the 2016 case (with a summons setting an arraignment date but with a lack of service) does not equate to a failure to appear. However, the language used by the court before mentioning the issuance of bench warrants was not prejudicial and does not indicate the sentencing court clearly and convincingly rendered a contrary to law sentence. As recited in our Statement of the Case above, Appellant knew his 2016 case was pending as he was served with the original indictment, his bond was continued, and he appeared for pretrials. After the bench warrant was issued on the superseding indictment, he did not appear before the court and was then absent from the 2016 case for over two years. The entry issuing the bench warrant was filed on the docket of Appellant’s pending case, providing notice of his status. {¶19} The lack of additional scheduling entries in the 2015 case while Appellant was already being sought on a bench warrant in the case does not mean the court cannot mention the issuance of the warrant later at sentencing. See generally R.C. 2929.12(A) (the sentencing court “may consider any other factors that are relevant to achieving those purposes and principles of sentencing”). As reviewed supra, the court disclosed various other sentencing considerations, such as his continued life-threatening behaviors and criminal history. In fact, the trial court made the contested observations in discussing his risk of reoffending and found Appellant posed the greatest likelihood of recidivism. {¶20} Recidivism is more likely where “[a]t the time of committing the offense, the offender was under release from confinement before trial or sentencing * * *.” R.C. 2929.12(D)(1). Appellant was under release from confinement before trial in the 2016 case when he committed the offenses in the 2019 case where he received the sentence challenged in this appeal. His status of being wanted on a warrant in an additional case (the 2017 case) is not some off-limit topic (even if he was not aware of the 2017 case). And, contrary to Appellant’s suggestion, the trial court did not misstate the facts when noting more than one bench warrant had been issued. Case No. 20 MA 0041 The court was collectively –7– speaking of Appellant’s multiple cases before the court. In addition to the bench warrant issued in the 2016 case, the judgment entries in the record of the 2017 case show a bench warrant was issued in that case (after arraignment was attempted three times).1 {¶21} Appellant also contends the state did not attempt service of the indictment in the 2017 case, apparently because a return on the indictment was not filed with an officer’s notation (as was filed in the 2016 case). However, a bench warrant was already outstanding in the 2016 case, and the court ordered the notification of Appellant’s bondsman as to the situation. Finally and contrary to Appellant’s commentary, the trial court did not allude to a belief that Appellant failed to appear after the guilty plea or failed to appear in the 2019 case. {¶22} Accordingly, even if the sentencing arguments were reviewable, the contested statements (made by the court while discussing all three cases at a joint sentencing hearing after a plea agreement) did not indicate the sentence in the 2019 case was clearly and convincingly based on facts unsupported by the record or contrary to law. Appellant’s assignment of error is overruled. {¶23} For the foregoing reasons, the trial court’s judgment is affirmed. Waite, J., concurs. Trapp, J., concurs. We also note the PSI shows additional bench warrants were issued in 2016 in a Mahoning County felony case where Appellant was on community control for carrying a concealed weapon and in a misdemeanor aggravated menacing case where he was on probation. 1 Case No. 20 MA 0041 –8– For the reasons stated in the Opinion rendered herein, the assignment of error is overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry. Case No. 20 MA 0041
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