[Cite as State v. Morgan, 2019-Ohio-2385.]


Released: June 13, 2019

                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               MEIGS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 18CA13
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
DANNY R. MORGAN, SR.,          :    ENTRY
                               :
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio Public Defender, Patrick T. Clark, Assistant State
Public Defender, Columbus, Ohio, for Appellant.

James K. Stanley, Meigs County Prosecuting Attorney’s office, Pomeroy,
Ohio, for Appellee.
__________________________________________________________
Smith, P. J.

        {¶1} Danny R. Morgan, Sr., appeals the judgment entry of the Meigs

County Common Pleas Court, entered March 28, 2018. Morgan was

convicted by a jury of one count of attempted murder and two counts of

felonious assault. On appeal, Morgan asserts the trial court erred by failing

to grant his motion to dismiss based upon a violation of his statutory speedy

trial rights. He also asserts the court erred in imposing a maximum sentence.

Upon review, we find no merit to Morgan’s arguments. Accordingly, we
Meigs App. No. 18CA13                                                                                           2


overrule Morgan’s assignments of error and affirm the judgment of the trial

court.

                     FACTUAL AND PROCEDURAL BACKGROUND

         {¶2} On May 2, 2016, the Meigs County Grand Jury returned a three-

count indictment against Danny R. Morgan, Sr., (hereinafter “Appellant”).

Count One was attempted murder, a violation of

R.C. 2923.02(A)/2903.03(A); Count Two was felonious assault, a violation

of R.C.2903.11(A)(1); and Count Three was felonious assault by means of a

deadly weapon, a violation of R.C. 2903.11(A)(2). The indictment, Case

No. 16CR048, stemmed from events which occurred on March 19, 2016.

         {¶3} Appellant had been residing for several days with Danny

Walker, a long-time acquaintance. On March 18, 2016, Appellant and

Walker had spent part of the day drinking heavily at Walker’s home. In the

early morning hours of March 19th, Appellant made three 911 phone calls.

First, Appellant called 911 stating that Walker had just admitted to him that

he raped him a couple of months prior. The 911 dispatcher, Twila Childs,

dismissed Appellant as a non-emergent, confused and intoxicated caller.

Appellant was advised to “sleep it off” and call the next day if necessary.1



1
 Childs testified when Appellant first called to report the rape, she was initially confused about the nature
of his call because of his slurred speech and because he had previously called several times on the evening
of March 18th to report some type of dispute with his daughter.
Meigs App. No. 18CA13                                                          3


        {¶4} During a second call, Appellant again reported an alleged rape

and stated, “I bet you’d come if I killed a guy.” At that point, Childs

immediately dispatched officers to the residence. Appellant called a third

time stating, “the man’s dead now…I killed him.”

        {¶5} Deputy Jeff Perry of the Meigs County Sheriff’s Department

testified that upon receiving the dispatch, he responded to the scene. Deputy

Joshua Ridenour also responded. When the officers started to enter the

residence, Appellant came outside covered in blood, saying “I think I killed

him.”

        {¶6} Appellant was taken into custody and transported to the Meigs

County Jail on March 19, 2016. On March 21, 2016, a criminal complaint

charging felonious assault under R.C. 2903.11(A)(2) was filed. Appellant

was arraigned and entered a not guilty plea in the Meigs County Court.

Bond was set at $25,000, 10% cash permitted. Appellant was assigned a

preliminary hearing date of March 24th.

        {¶7} On March 24th, Appellant’s charge was bound over to the grand

jury. The Meigs County Clerk of Court’s website shows that Appellant’s
Meigs App. No. 18CA13                                                                                          4


felonious assault charge was assigned Case No. 16CR046.2 The clerk’s

website also shows that Appellant posted a surety bond on April 15, 2016.

         (¶8} Appellant was subsequently indicted on the three aforementioned

counts on May 2, 2016. The prosecutor requested an arrest warrant.

Testimony in the record indicates there were several unsuccessful attempts

to locate Appellant and serve the warrant.

         {¶9} On September 22, 2016, the trial court ordered that Case Nos.

16CR046 and 16CR048 should be joined and all further pleadings filed

under Case No. 16CR048. On November 1, 2016, the court noted that the

May 2, 2016 warrant had not been served. The trial court continued the case

“off the docket” until “such time as the Sheriff serves the warrant and brings

the Defendant before the Court.”

         {¶10} Eventually Appellant was brought before the Meigs County

Common Pleas Court and arraigned on March 27, 2017. The arraignment

entry contains an additional note: “Prior bond posted in county court by A-1

Surety. Def. Counsel suggests bond still good [indecipherable] Ct will get

clarification.” On that date, Appellant’s surety bond was continued.




We take judicial notice of the information contained on the Meigs County Court and the Meigs County
Common Pleas Clerk of Court’s websites. State v. Rutherford, 4th Dist. Pike No. 17CA883, 2017-Ohio-
2638, at Fn.4; In re Elfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-1933, at ¶35 (See, e.g., State ex rel.
Everhart v. McIntosh, 115 Ohio St.3d 195, 2007–Ohio–4798, 974 N.E.2d 516, ¶8, 10 (court can take
judicial notice of judicial opinions and public records accessible from the internet).
Meigs App. No. 18CA13                                                            5


      {¶11} On April 13, 2017, Appellant filed a motion to dismiss

asserting that his right to constitutional speedy trial had been violated. The

State filed a response asserting that any delay in bringing Appellant to trial

was caused by Appellant’s own actions in evading service of the indictment.

On May 30, 2017, the trial court denied the motion.

      {¶12} Appellant eventually proceeded to a jury trial commencing in

March 2018. On March 28, 2018, the trial court’s judgment entry was

journalized. Appellant was convicted on all three counts. As to Count One,

attempted murder, a felony of the first degree, Appellant was sentenced to a

maximum prison term of 11 years. The court found that Counts Two and

Three merged for purposes of sentencing.

       {¶13} This timely appeal followed. Where pertinent, additional facts

are set forth below.

                           ASSIGNMENTS OF ERROR

      “I. THE TRIAL COURT ERRED BY FAIILNG TO GRANT
      DANNY MORGAN’S MOTION TO DISMISS HIS CASE
      FOR LACK OF A SPEEDY TRIAL UNDER R.C. 2945.71
      AND R.C.2945.73.”

      “II. MR. MORGAN’S SENTENCE IS BOTH
      UNSUPPORTED BY COMPETENT, CREDIBLE EVIDENCE
      IN THE RECORD AND CONTRARY TO LAW.”

                       ASSIGNMENT OF ERROR ONE –
                             SPEEDY TRIAL
Meigs App. No. 18CA13                                                           6


        A. STANDARD OF REVIEW ON MOTION TO DISMISS

       {¶14} “Appellate review of a trial court's decision on a motion to

dismiss for a violation of the speedy trial requirements presents a mixed

question of law and fact.” State v. Brooks, 2018-Ohio-2210, 114 N.E. 3d

220, at ¶21, quoting, State v. Spencer, 2017-Ohio-456, 84 N.E.3d 106, ¶16

(4th Dist.); State v. Baugh, 5th Dist. Tuscarawas No. 2017AP030007, 2018-

Ohio-857, ¶71. “Thus, appellate courts will defer to a trial court's findings

of fact as long as competent, credible evidence supports them.” Brooks,

supra, quoting, Spencer at ¶16, citing State v. Brown, 131 Ohio App.3d 387,

391, 722 N.E.2d 594 (4th Dist.1998). “Appellate courts then independently

determine whether the trial court properly applied the law to the facts.”

Brooks, supra; Spencer at ¶16. And when reviewing the legal issues in a

speedy trial claim, we must strictly construe the statutes against the state.

Brooks, supra. See Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d

706 (1996); Spencer at ¶16; State v. Deacey, 2d Dist. Montgomery No.

27408, 2017-Ohio-8102, at ¶75.

                           B. LEGAL ANALYSIS

      {¶15} The Sixth Amendment to the United States Constitution

(which is made applicable to the states through the Due Process

Clause of the Fourteenth Amendment) and Article I, Section 10 of the
Meigs App. No. 18CA13                                                     7


Ohio Constitution guarantee a criminal defendant the right to a speedy

trial. This guarantee is implemented by R.C. 2945.71, which provides

specific statutory time limits within which a person must be brought

to trial. Brooks, supra, at ¶23; State v. Blackburn, 118 Ohio St.3d

163, 2008-Ohio-1823, 887 N.E.2d 319, ¶10. R.C. 2945.71(C)(2)

“requires that a person against whom a felony charge is pending shall

be brought to trial within 270 days after the person's arrest.” Brooks,

supra, quoting, State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

45 N.E.3d 127, ¶81. Appellant has limited his argument to an alleged

deprivation of a statutory speedy trial, so we will address his

arguments solely in light of the Ohio statute.

          {¶16} Appellant asserts that it is undisputed that the facts

giving rise to the indictment in Case No. 16CR48 are the same basis

underlying the complaint in Case No. 16CR46. Appellant points out

that when the indictment in this case was filed on May 2, 2016,

Appellant was at liberty, having posted a bond in Case No. 16CR046.

By April 13, 2017, when Appellant filed a speedy-trial motion in Case

No. 16CR048, 437 speedy-trial days had elapsed from his initial

arrest.
Meigs App. No. 18CA13                                                           8


      {¶17} Appellant concludes that the speedy-trial clock began running

upon a complaint being filed in Meigs County Court under Case No.

CRA113 (which later became 16CR46.) Furthermore, any delay that

resulted from the search for Mr. Morgan after the issuance of an arrest

warrant on Case No. 16CR048 was due to the government’s error and

through no fault of Appellant.

      {¶18} In denying Appellant’s speedy-trial motion, the trial

court found that “[d]efendant’s 270 days did not start to run until the

Defendant was arrested and arraigned [on Case No. 16CR048] on

March 27, 2017.” The trial court also found that the issuance of an

arrest warrant on May 2, 2016 and subsequent search for Mr. Morgan

“excuse[d]any delay in bringing the case to trial.” For the reasons

which follow, we agree with the trial court’s determinations.

      {¶19} We observe that Appellant was initially arrested and jailed on

March 19, 2016. When computing any period of time prescribed by an

applicable statute, the date of the act or event from which the period begins

to run is not included. State v. Fisher, 4th Dist. Ross No. 11CA3292, 2012-

Ohio-6144, at ¶14; State v. Alexander, 4th Dist. No. 08CA3221, 2009–

Ohio–1401, at ¶18, citing State v. Saffin, 4th Dist. No. 07CA2967, 2008–

Ohio–338, ¶9; R.C.1.14; Crim R.45(A). Time is calculated to run the day
Meigs App. No. 18CA13                                                            9


after the date of arrest. State v. Miller, 9th Dist. Nos. 10CA009922,

10CA009915, 2012–Ohio–1263, at ¶9, quoting State v. Brownard, 9th Dist.

No. 06CA009053, 2007–Ohio–4342, at ¶12. Thus, we begin counting from

March 20, 2016.

       {¶20} The Meigs County Clerk of Court’s website indicates

Appellant posted surety bond on April 15, 2016. Appellant’s motion to

dismiss was filed on April 13, 2017. Appellant asserts that he should have

been brought to trial by December 15, 2016, which is 270 days from March

20, 2016. By the time of the filing of the motion, 437 days had elapsed.

Because the 270-day period was exceeded, Appellant presented a prima

facie speedy trial violation. See Brooks, supra, at ¶24; State v. Smith, 4th

Dist. Lawrence No. 16CA10, 2017-Ohio-7864, at ¶21, citing State v.

Squillace, 10th Dist. Franklin No. 15AP-958, 2016-Ohio-1038, at ¶14. Once

a defendant establishes a prima facie case for dismissal, the burden shifts to

the state to prove that the time was sufficiently tolled to extend the period.

Brooks, at ¶24; Smith at ¶21, citing Squillace and State v. Anderson, 4th

Dist. Scioto No. 15CA3696, 2016-Ohio-7252, at ¶19.

      {¶21} The State has directed us to R.C. 2945.72. “R.C. 2945.72

contains an exhaustive list of events and circumstances that extend the time

within which a defendant must be brought to trial.” Brooks, at ¶25, quoting,
Meigs App. No. 18CA13                                                           10


Ramey at ¶24. The State argues that in appellant’s case, the pertinent tolling

provisions in this case are R.C. 2945.72(E) (“Any period of delay

necessitated by reason of a * * * motion, proceeding, or action made or

instituted by the accused”) because of Appellant’s failure to provide a valid

address. Additionally, the State has directed us to two cases, State v. Stokes,

2011-Ohio-2104, 952 N.E. 2d 1192 (12th Dist), and State v McClaine, 8th

Dist. Cuyahoga No. 46969, 1983 WL 2911 (Dec. 15, 1983). The Stokes

court held that a delay of over two years from the defendant’s first

appearance in court was occasioned by defendant’s failure to furnish a

proper address. McClaine held that a large part of the delay of trial in that

case was occasioned by the defendant’s neglect in providing an address

where he could be located.

      {¶22} However, Appellant’s response to this argument is to direct us

to Crim. R. 9. Appellant points out that at the time of the indictment, he was

free on a posted surety bond in Case No. 16CR046, and that 16CR048

derives from the same underlying facts. As such, pursuant to Crim. R. 9, the

prosecutor erred by issuing a warrant for his arrest when Appellant should

have been summoned. Crim. R. 9(A) provides in pertinent part:

      “Upon the request of the prosecuting attorney, the clerk shall
      forthwith issue a warrant for each defendant named in the
      indictment***. The clerk shall issue a summons instead of a
      warrant where the defendant has been released pursuant to Rule
Meigs App. No. 18CA13                                                                                          11


         46 and is indicted for the same offense for which he was bound
         over pursuant to Rule 5.”


         {¶23} We begin by acknowledging that whether or not Appellant

should have been considered free on bond the entire time is a somewhat

hazy issue. As set forth in the facts above, the common pleas court

arraignment entry indicates that by Appellant’s March 27, 2017 arraignment

on Case No.16CR048, whether or not Appellant’s bond was still in effect

was not clear. The arraignment hearing transcript demonstrates that the

court requested clarification in writing, but the record does not reflect that

this occurred. It appears the court continued the bond based on defense

counsel’s representations.3 However, a review of the Meigs County Clerk of

Court’s website reveals a notation as in Case No. 16CR048 as follows:”

3/27/17 JOURNAL ENTRY ARRAIGNMENT ENTRY Released on surity

[sic] bond posted from county court.” Below this entry is a similar notation

on the same date: “RECOGNIZANCE OF ACCUSED-$25,000 SURETY

BOND POSTED AT AND TRANSFERRED BY COUNTY COURT IN

CASE #16-CR-06, NOW COMBINED WITH THIS CASE.” Given that a

trial court speaks through its journal entries, we conclude Appellant’s bond

was in effect the entire time. See State v. Neal, 4th Dist. 2015-Ohio-5452, at

3
  Later, when the court ruled on Appellant’s motion to dismiss, the trial court’s entry stated: “It is felt that
the bond is void or voidable” and “the bond was continued mistakenly(?)[sic].”
Meigs App. No. 18CA13                                                        12


Fn.2, citing State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533, 863 N.E.

2d 1024, at ¶47.

      {¶24} Nevertheless, there is no doubt that on May 2, 2016, when

Appellant was indicted and when the prosecutor requested a warrant for his

arrest, his bond was in effect. Appellant urges that under these

circumstances, the clerk “shall issue a summons instead of a warrant where

the defendant has been released….” We agree. The plain language of the

criminal rule provides for issuance of summons in those situations.

Although the Criminal Rules of Procedure are not statutes, the same

interpretation rules apply. State v. Gaspareno, 2016-Ohio-990, 61 N.E. 3d

550 (3rd Dist.), at ¶55; State v. Athon, 1st Dist. Hamilton Nos. C–110236,

C–110237, C–110238, C–110239, C–110290, 2012-Ohio-765, at ¶7,

(reversed on other grounds, 136 Ohio St.3d 43, 2013-Ohio-1956, 989 N.E.2d

1006); State v. Edgeworth, 6th Dist. Lucas No. 7947, 1975 WL 182372, *5

(Nov. 14, 1975). “Where the language of a statute is plain and unambiguous

and conveys a clear and definite meaning, there is no need to apply rules of

statutory interpretation.” State v. Taylor, 114 Ohio App.3d 416, 422, 683

N.E.2d 367 (2d Dist.1996).

      {¶25} However, the language of the rule further, clearly states that the

clerk shall issue a summons where the defendant has been released and “is
Meigs App. No. 18CA13                                                         13


indicted for the same offense for which he was bound over.” While the

indictment arises from the same underlying facts, Appellant was indicted on

a separate offense, attempted murder. Appellant was bound over on R.C.

2903.11, felonious assault, and Counts Two and Three of the indictment are

for felonious assault. Although arising from the same set of circumstances,

attempted murder and felonious assault are separate offenses. Therefore,

while arguably the prosecutor may have erred with regard to requesting a

warrant instead of a summons on Counts Two and Three, we find it to be

harmless.

      {¶26} In Markel v. Markel, 5th Dist. Ashland No. -4-COA-015, 2004-

Ohio-3437, an appeal involving child custody issues, the appellate court

noted that R.C. 2705.031 mandated the issuance of a summons to Appellant

before a hearing on a motion for contempt. However, the court concluded

that based upon the record, there was no indication of prejudice, and

therefore the failure to issue a summons was harmless error. Id. At ¶10.

While Markel involved a civil proceeding, its reasoning is equally

applicable. Appellant was indicted for a separate count, attempted murder,

and a warrant for his arrest was properly issued pursuant to Crim.R.9. In

this case, there is no indication prejudice occurred as a result of the issuance

of the arrest warrant on all three counts.
Meigs App. No. 18CA13                                                           14


      {¶27} We turn now to the issue of whether or not reasonable efforts

were made to locate Appellant. The record reflects that at the hearing on

Appellant’s motion to dismiss for violation of his speedy trial right, the State

called Major Scott Trussell of the Meigs County Sheriff’s Department to

testify as to the efforts made to locate Appellant. Major Trussell testified

one of his regular job duties is to coordinate actions by deputies, including

serving warrants. He testified as to the procedure for handling indictments

and accompanying warrants which came to the sheriff’s office.

      {¶28} In particular, Major Trussell testified about the efforts to locate

Appellant and to serve the arrest warrant. The record reflects that Appellant

supplied a “Buddy Road, Albany, Ohio” address on his bond document in

Case No. 16CR046. He was eventually arrested at a location on White’s

Hill Road in Meigs County.

      {¶29} Major Trussell explained that upon receipt of the warrant,

Appellant’s information was entered into the National Crime Information

Center (NCIC), which occurred on or about May 6, 2016. Major Trussell

testified that later, in July or August 2016, he saw Appellant’s son, Danny

Morgan, Jr., in the courthouse. Major Trussell advised Appellant’s son that

his father had warrants for his arrest and he should turn himself in.
Meigs App. No. 18CA13                                                         15


      {¶30} Major Trussell also received a call in August 2016 that

Appellant had been identified at the “124 Mart.” Within 6 minutes of

receiving this information, deputies responded to that location. However,

Appellant had left the area.

      {¶31} As a result of entering Appellant’s information into the NCIC

database, the sheriff’s department also received a letter from the Social

Security Administration advising that they had an address for Appellant on

Zion Road in Athens County. On or about November 1, 2016, Major

Trussell made contact with authorities in Athens County in order to arrest

Appellant. Major Trussell was later advised that officers sent to that address

“were told that Appellant did not reside at that address.”

      {¶32} Perhaps the strongest evidence that Appellant’s own actions

necessitated the delay in these proceedings was Trussell’s testimony that

according to the sheriff’s department radio log, as early as May 6, 2016, 4

days after Appellant was indicted, Appellant called the sheriff’s office to

inquire about the charges. Trussell testified:

      Mr. Morgan called in uh to tell the dispatcher that he, the
      information that he received is not uh on his charges, was
      different, uh than what he was initially charged with. I guess,
      by reading it, you can say he was complaining that it wasn’t
      accurate.
Meigs App. No. 18CA13                                                        16


This testimony demonstrates that Appellant was well aware of the

indictment and the additional counts, which included attempted

murder. Thereafter, Appellant made no efforts to surrender to

authorities. Appellant was not in fact located until March 2017.

      {¶33} Based on this record, we find competent credible evidence

supports the trial court’s finding that speedy trial time was extended and

necessitated by Appellant’s efforts to evade arrest. As such, we find no

merit to Appellant’s argument that his statutory speedy trial rights were

violated. Accordingly, the first assignment of error is hereby overruled.

                        ASSIGNMENT OF ERROR TWO -
                            MAXIMUM SENTENCE

                         A. STANDARD OF REVIEW

      {¶34} Appellant was sentenced to eleven (11) years, the maximum

allowable sentence for Count One, attempted murder. In the second

assignment of error, Appellant argues his sentence is both unsupported by

competent, credible evidence in the record, and is contrary to law. Appellate

courts review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Shankland, 4th Dist. Washington No. 2019-Ohio-

404, at ¶18; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶1. Under R.C. 2953.08(G)(2) an “appellate court may vacate

or modify a felony sentence on appeal only if it determines by clear and
Meigs App. No. 18CA13                                                            17


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.” Id. A sentencing court must consider the purposes and principles of

sentencing in accordance with R.C. 2929.11; the seriousness and recidivism

factors set forth in R.C. 2929.12; and the appropriate consecutive sentence

requirements enumerated in R.C. 2929.14(C)(4).4

           {¶35} Although R.C. 2953.08(G)(2)(a) does not mention R.C.

2929.11 and 2929.12, the Supreme Court of Ohio has determined that the

same standard of review applies to those statutes. State v. Yost, 4th Dist.

Meigs No. 17CA10, 2018-Ohio-2719, at ¶11; Marcum at ¶23 (although

“some sentences do not require the findings that R.C. 2953.08(G)[2][a]

specifically addresses[,] * * * 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”); State v. Butcher, 4th Dist. Athens No.

15CA33, 2017-Ohio-1544, ¶ 84. Consequently, “an 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; Butcher at ¶ 84.


4
    In this case, the consecutive sentence requirements are not at issue.
Meigs App. No. 18CA13                                                            18


      {¶36} R.C. 2929.11 provides:

      (A) A court that sentences an offender for a felony shall be
          guided by the overriding purposes of felony sentencing.
          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. To 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.

      (B) A sentence imposed for a felony shall be reasonably
          calculated to achieve the three overriding purposes of
          felony sentencing set forth in division (A) of this section,
          commensurate with and not demeaning to the seriousness
          of the offender's conduct and its impact upon the victim,
          and consistent with sentences imposed for similar crimes
          committed by similar offenders.

      (C) A court that imposes a sentence upon an offender for a
          felony shall not base the sentence upon the race, ethnic
          background, gender, or religion of the offender.

      {¶37} R.C. 2929.12 sets forth factors to consider in determining the

appropriate sentence. The statute contains a nonexclusive list of factors that

render an offender's conduct more serious than conduct normally

constituting the offense and factors that render an offender's conduct less

serious than conduct normally constituting the offense. R.C. 2929.12(B)(C).

Likewise, the statute sets forth a nonexclusive list of factors indicating the
Meigs App. No. 18CA13                                                            19


offender is more likely to commit future crimes and factors indicating

recidivism is less likely. R.C. 2929.12(D)(E).

      {¶38} “Once the trial court considers R.C. 2929.11 and 2929.12, the

burden is on the defendant to demonstrate by clear and convincing evidence

that the record does not support his sentence.” Yost, supra, at ¶ 12, quoting,

State v. Akins-Daniels, 8th Dist. Cuyahoga No. 103817, 2016-Ohio-7048,

¶ 9; State v. O'Neill, 3d Dist. Allen No. 1-09-27, 2009-Ohio-6156, fn. 1.

       {¶39} “Clear and convincing evidence is ‘that measure or degree of

proof which is more than a mere “preponderance of the evidence,” but not to

the extent of such certainty as is required “beyond a reasonable doubt” in

criminal cases, and which will produce in the mind of the trier of facts a firm

belief or conviction as to the facts sought to be established.” Yost, supra, at

¶ 13, quoting, State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-

Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

                              B. LEGAL ANALYSIS

      {¶40} In this case, both the sentencing transcript and sentencing entry

reflect that the trial court considered the statements of counsel, the record,

the trial testimony, and other relevant information. The trial court

considered the overriding purposes of felony sentencing pursuant to R.C.
Meigs App. No. 18CA13                                                         20


2929.11, and also considered all relevant seriousness and recidivism factors

of R.C. 2929.12. The court sentenced Appellant to eleven years in prison,

commenting “[G]iven what I heard at the uh trial, I think that’s appropriate.”

While Appellant’s eleven-year term does constitute a maximum sentence for

attempted murder, it is also within the statutory range for the offense.

Therefore, we initially conclude that Appellant’s sentence is not contrary to

law.

       {¶41} Appellant also argues that his sentence is not clearly and

convincingly supported by the record, given his history of trauma,

“executive functioning deficits,” and reaction to the mix of provocation and

confusion on the night his crime occurred. In Appellant’s view, the Court

focused on the seriousness factors and failed to recognize factors such as: (1)

appellant acted under strong provocation; (2) substantial facts, though not

defenses, mitigated his conduct; (3) he had previously lived a law-abiding

life for many years; and, (4) the circumstances leading to the crime were not

likely to reoccur. Appellant also emphasizes that the trial court did not

obtain a pre-sentence investigation report in order to have a more

comprehensive overview prior to sentencing. Appellant argues the record

shows that he acted under strong provocation, believing at the time of the

crime that Walker had raped him.
Meigs App. No. 18CA13                                                                                 21


        {¶42} In support of his argument, Appellant directs us to the

testimony of his expert witness Dr. Gregory Janson.5 Dr. Janson testified

that he had reviewed Appellant’s medical records. He observed that

Appellant had been treated at Grant Hospital for a concussion, an injury in

which he had actually lost consciousness, just days before the incident with

Danny Walker. He noted Appellant had various chronic medical conditions

such as heart issues, alcohol abuse, and diabetes. Appellant had also

survived several traumatic events during his lifetime, beginning with

experiencing the Buffalo Creek Disaster in West Virginia6 as a young child;

losing his own infant child to Sudden Infant Death Syndrome; the incident in

which he incurred the concussion; and, the recent alleged sexual assault.

        {¶43} Dr. Janson opined that Appellant was a highly vulnerable

person, with markers and symptomatology for post-traumatic stress disorder

(PTSD) and traumatic brain injury (TBI). Dr. Janson testified that

commonly, persons with those symptoms may have an inability to correctly

interpret feedback from the environment. As a result, those affected may




5
  Dr.Janson, a forensic examiner, holds a doctorate in clinical counseling and is a nationally certified
counselor.
6
  The Buffalo Creek Disaster was one of the deadliest floods in U.S. history, occurring in southern West
Virginia’s Buffalo Creek Hollow. Negligent strip mining and heavy rain produced a raging flood and in a
matter of minutes, 118 were dead and over 4,000 people were left homeless. Seven persons were never
found. See West Virginia Department of Arts, Culture and History, ”Buffalo Creek” at
www.wvculture.org/history/bufffcreek/bctitle.html, accessed March 27, 2019.
Meigs App. No. 18CA13                                                        22


react to stress or provocation by either reliving the previous traumatic event,

or by experiencing a “fight or flight” reaction.

        {¶44} However, on cross-examination, Dr. Janson noted that

Appellant attempted to minimize his alcohol abuse. Dr. Janson opined that

taking in an extreme amount of alcohol could have affected Appellant’s

reaction, lowering his ability to control impulses. Importantly, although Dr.

Janson acknowledged that Appellant reported symptoms of PTSD, he could

not say for sure that Appellant would have been diagnosed with PTSD at the

time of his crime.

        {¶45} Appellant also emphasizes that he does not present a high risk

of recidivism. He argues the record does not show him to be anything other

than a non-violent, easy-going person. The circumstances of March 19th,

learning that he had been raped by Walker, are unlikely to occur again.

There is no indication that he had behaved violently towards others in the

past.

        {¶46} We find no merit to Appellant’s arguments. We have reviewed

the entire record, including the trial transcript. Several times in the

sentencing entry, the court comments on the seriousness of the crime. The

record bears this depiction.
Meigs App. No. 18CA13                                                       23


      {¶47} Danny Walker, the victim of the stabbing, testified Appellant

and he had spent the day together doing various errands around the county.

Around 6:00 p.m., in Walker’s home, they began drinking whiskey. The

argument between them, about money and alcohol, began around 10:00 p.m.

Appellant wanted to collect money Walker owed him. He also wanted

Walker to drive him to get more alcohol. In his testimony, Walker denied

raping Appellant or ever even discussing an alleged rape.

      {¶48} According to Walker, when he refused Appellant’s requests,

Appellant first threatened to stab Walker’s German Shepherd puppy.

Walker went to pick up the puppy and take him to another room. When he

leaned over, Appellant stabbed him. Walker had no memory of anything

else until seven or eight days later.

      {¶49} Walker was transferred to the Ohio State University Medical

Center via helicopter. Reading from his medical records, Walker testified he

had three stab wounds to his neck, injuring his voice box. He was intubated.

For a time, his neck was swollen and he could not talk. Walker eventually

had 5 surgeries in order to save his voice box. Prior to the stabbing, he was

able to speak loudly. Now his voice “comes and goes.” Walker

acknowledged visible scars on his neck.
Meigs App. No. 18CA13                                                          24


      {¶50} Deputy Jeff Perry of the Meigs County Sheriff’s Department

testified when he arrived at the scene and first observed Appellant, he was

“covered pretty much from head to toe in blood.       * * *it was all over him,

his hair, his neck, his shirt.” The testimony of both Walker and Deputy

Perry support the seriousness of this crime.

      {¶51} The trial court, as did the jury in convicting Appellant,

apparently chose to discredit the “strong provocation” theory. Both the trial

court and the jury apparently did not give credence to Dr. Janson’s testimony

about the substantial facts, not defenses, which were to be interpreted as

mitigating Appellant’s conduct. It is likely that the trial court found

Appellant’s criminal behavior as linked to his alcohol use and therefore,

likely to recur. The prosecutor noted at sentencing that the continued pursuit

of the “strong provocation” theory belied any genuine remorse. We are

required to afford deference to the trial court's broad discretion in making

sentencing decisions; trial courts have great latitude and discretion in

formulating the appropriate sentence. State v. Rahab, 150 Ohio St.3d 152,

2017–Ohio–1401, 80 N.E.3d 431, ¶ 10. Here, we decline to second-guess

the trial court’s sentencing decision.

      {¶52} Precedent refutes any contention that each statutory or other

relevant factor is entitled to equal or a certain weight in the balancing
Meigs App. No. 18CA13                                                            25


process. Yost, supra, at 19; See State v. Graham, 4th Dist. Adams No.

17CA1046, 2018-Ohio-1277, ¶ 25, rejecting the argument that because each

of the statutory sentencing factors are mandatory, each is entitled to equal

weight on balance, citing State v. Bailey, 4th Dist. Highland No. 11CA7,

2011-Ohio-6526, ¶ 34, quoting State v. Arnett, 88 Ohio St.3d 208, 215, 724

N.E.2d 793 (2000) (“in considering the factors set forth in R.C. 2929.12, the

trial court has ‘the discretion to determine the weight to assign a particular

statutory factor”). Furthermore, “ ‘Simply because the court did not balance

the factors in the manner appellant desires does not mean that the court

failed to consider them, or that clear and convincing evidence shows that the

court's findings are not supported by the record.’ ” Yost, supra, at ¶ 20,

quoting, State v. Graham, 4th Dist. Meigs No. 17CA10, 2018-Ohio-1277, at

¶ 26, quoting State v. Butcher, 4th Dist. Athens Nos. 15CA33, 15CA34,

2017-Ohio-1544, at ¶ 87. Given all the above and the standard of review,

we cannot conclude that Appellant’s sentence is clearly and convincingly

unsupported by the record. Therefore, we also find no merit to Appellant’s

second assignment of error. As such, it is hereby overruled.



                                        JUDGMENT AFFIRMED.
Meigs App. No. 18CA13                                                          26


                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Meigs County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

McFarland, J. & Abele, J.: Concur in Judgment and Opinion
                              For the Court,

                          BY: __________________________________
                              Jason P. Smith, Presiding Judge

                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
