[Cite as State v. Cooper, 2016-Ohio-450.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY




STATE OF OHIO,
                                                          CASE NO. 4-15-10
       PLAINTIFF-APPELLEE,

      v.

JAMES L. COOPER,                                          OPINION

       DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                           Trial Court No. 14 CR 11853

                                      Judgment Affirmed

                            Date of Decision: February 8, 2016



APPEARANCES:

        W. Alex Smith for Appellant

        Russell R. Herman for Appellee
Case No. 4-15-10


WILLAMOWSKI, J.

       {¶1} Defendant-appellant, James Cooper (“Cooper”), brings this appeal

from the judgment of the Common Pleas Court of Defiance County, Ohio, which

accepted his plea of guilty to one count of involuntary manslaughter, a felony of

the first degree in violation of R.C. 2903.04(A), and sentenced him to eleven years

in prison. For the reasons that follow, we affirm the trial court’s judgment.

                                  Relevant Facts

       {¶2} On January 24, 2014, Cooper was watching a five-month-old child of

his live-in-girlfriend, Emily, while Emily was sleeping. During that time, the child

sustained severe injuries, which led to the child’s death on January 26, 2014.

Medical findings led to a diagnosis of shaken baby syndrome, and the coroner

declared that the child died of complications of blunt force trauma to the head.

The investigation led to the charges in this case, filed against Cooper on January

30, 2014. A three-count indictment charged Cooper with one count of murder, an

unclassified felony in violation of R.C. 2903.02(B); one count of felonious assault,

a felony of the second degree in violation of R.C. 2903.11(A)(1); and one count of

endangering children, a felony of the second degree in violation of R.C.

2919.22(B)(1). (R. at 2.)

       {¶3} Cooper initially pled not guilty. On November 3, the State agreed to

dismiss the underlying indictment in exchange for Cooper entering a guilty plea to

a newly-filed bill of information, charging him with one count of involuntary

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manslaughter, a felony of the first degree in violation of R.C. 2903.04(A). (See

Tr. of Proceedings at 3, Nov. 3, 2014; R. at 8, 17, 20.) No agreement was made as

to the sentencing. (Id.) Cooper entered a guilty plea under Alford v. North

Carolina,1 and the case proceeded to a sentencing hearing on December 22, 2014.

        {¶4} After a pre-sentence investigation, the trial court sentenced Cooper to

eleven years in prison. Cooper filed this timely appeal in which he alleges one

assignment of error, as quoted below.

                                      Assignment of Error

        The trial court erred when it imposed a maximum sentence that was
        contrary to law.

                                       Standard of Review

        {¶5} A trial court has discretion to impose a prison sentence that is within

the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, ¶ 37; State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9.

But in exercising that discretion, the trial court must “carefully consider” statutory

sentencing guidelines set forth by R.C. 2929.11 and R.C. 2929.12, as well as the

“statutes that are specific to the case itself.” Matthis at ¶ 38. If the defendant can

show, by clear and convincing evidence, that the trial court failed to consider or

follow the proper statutes, the sentence is subject to reversal as contrary to law.

See id. at ¶ 31-33; R.C. 2953.08(G)(2). Assuming, however, that the trial court

1
  N. Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (recognizing that an adult
charged with criminal conduct could both enter a guilty plea to a charge and simultaneously maintain his
innocence); see In re Kirby, 101 Ohio St.3d 312, 2004-Ohio-970, 804 N.E.2d 476, 477, ¶ 3 (2004).

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Case No. 4-15-10


has complied with the applicable rules and statutes, its application of the relevant

R.C. 2929.11 and R.C. 2929.12 factors and selection of a sentence from the

permissible statutory range are subject to review for abuse of discretion. State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 17 (2008)

(plurality opinion); State v. Lewis, 11th Dist. Lake No. 2011-L-004, 2011-Ohio-

4700, ¶ 13-14.

                                      Analysis

       {¶6} Under R.C. 2929.11 the trial 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). Furthermore, the trial court must ensure that

the sentence is “reasonably calculated to achieve the two overriding purposes of

felony sentencing * * * , 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.”             R.C.

2929.11(B).

       {¶7} Under R.C. 2929.12, the trial court shall consider a number of

additional factors that relate to the seriousness of the conduct, the likelihood of the

offender’s recidivism, and the offender’s service in the armed forces. As relevant

to this appeal, in determining the seriousness of the offender’s conduct, the trial

court is required to consider whether:

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Case No. 4-15-10


       (1) The physical or mental injury suffered by the victim of the
       offense due to the conduct of the offender was exacerbated because
       of the physical or mental condition or age of the victim.

       (2) The victim of the offense suffered serious physical,
       psychological, or economic harm as a result of the offense.

       ***

       (6) The offender’s relationship with the victim facilitated the
       offense.

       ***

R.C. 2929.12(B).

       (3) In committing the offense, the offender did not cause or expect to
       cause physical harm to any person or property.

       (4) There are substantial grounds to mitigate the offender’s conduct,
       although the grounds are not enough to constitute a defense.

R.C. 2929.12(C). In determining whether the offender is likely to commit future

crimes, the trial court must consider the following factors:

       (1) At the time of committing the offense, the offender was under
       release from confinement before trial or sentencing; was under a
       sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
       of the Revised Code; was under post-release control pursuant to
       section 2967.28 or any other provision of the Revised Code for an
       earlier offense or had been unfavorably terminated from post-release
       control for a prior offense pursuant to division (B) of section
       2967.16 or section 2929.141 of the Revised Code; was under
       transitional control in connection with a prior offense; or had
       absconded from the offender’s approved community placement
       resulting in the offender’s removal from the transitional control
       program under section 2967.26 of the Revised Code.

       (2) The offender previously was adjudicated a delinquent child
       pursuant to Chapter 2151. of the Revised Code prior to January 1,

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Case No. 4-15-10


       2002, or pursuant to Chapter 2152. of the Revised Code, or the
       offender has a history of criminal convictions.

       (3) The offender has not been rehabilitated to a satisfactory degree
       after previously being adjudicated a delinquent child pursuant to
       Chapter 2151. of the Revised Code prior to January 1, 2002, or
       pursuant to Chapter 2152. of the Revised Code, or the offender has
       not responded favorably to sanctions previously imposed for
       criminal convictions.

       (4) The offender has demonstrated a pattern of drug or alcohol abuse
       that is related to the offense, and the offender refuses to
       acknowledge that the offender has demonstrated that pattern, or the
       offender refuses treatment for the drug or alcohol abuse.

       (5) The offender shows no genuine remorse for the offense.

R.C. 2929.12(D).

       (1) Prior to committing the offense, the offender had not been
       adjudicated a delinquent child.

       (2) Prior to committing the offense, the offender had not been
       convicted of or pleaded guilty to a criminal offense.

       (3) Prior to committing the offense, the offender had led a law-
       abiding life for a significant number of years.

       (4) The offense was committed under circumstances not likely to
       recur.

       (5) The offender shows genuine remorse for the offense.

R.C. 2929.12(E). Additionally, the trial court may consider any other factors that

are relevant to achieving the purposes and principles of sentencing. Although the

trial court must consider the applicable statutory factors, it is not required to make




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Case No. 4-15-10


specific findings on the record with respect to these factors. Noble, 3d Dist. Logan

No. 8-14-06, 2014-Ohio-5485, ¶ 10.

       {¶8} In his argument on appeal, Cooper does not allege that the trial court

failed to consider the statutory factors or that it imposed a sentence that is contrary

to law. Indeed, the trial court discussed the relevant factors on the record and

chose a sentence that fell within the statutory range for a felony of the first degree

(three to eleven years). R.C. 2929.14(A)(1).

       {¶9} The trial court particularly discussed a presentence investigation

report prepared in this case and noted Cooper’s adjudication as a delinquent child

due to gross sexual imposition, which was an amended charge “from initial

allegations of Rape, for engaging in sexual contact with a four year [sic] female.”

(Tr. of Proceedings at 16, Dec. 22, 2014.) The trial court further noted underage

consumption of alcohol and a 2010 charge for domestic violence and child

endangering, which was pled down to two counts of disorderly conduct. (Id.) The

presentence investigation contained other information that the trial court

considered “disturbing,” including an account of events that led to the domestic

violence and child endangering charges, and allegations of Cooper being abusive

toward Emily.     (Id. at 17-18.)    It referred to statements from Emily, which

indicated that Cooper had previously held her child’s mouth shut to stop the child

from crying, causing bruising, or that he applied pressure to the child’s chest to the

point where the child could not breathe. (Id. at 18-19.) Another account indicated

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Case No. 4-15-10


that Cooper’s four-year-old son had warned Emily that his “daddy is hurting the

baby.” (Id. at 19.) The trial court recognized that there were no charges against

Cooper stemming from these other allegations contained in the presentence

investigation report, but the totality of the circumstances demonstrated a history of

violent behavior. (Id. at 19; see id. at 5.) The trial court further commented that

Cooper attempted to avoid responsibility for his criminal behavior by stating that

he did not “have any idea what happened” to result in the child’s death. (Id. 20.)

        {¶10} The trial court concluded that Cooper’s history and the circumstances

of the instant offense demonstrated that Cooper was a danger to the community

and “would likely engage in similar conduct if given an opportunity.” (Id. at 20.)

The trial court then compared the instant offense to other offenses of involuntary

manslaughter, which usually occur “in connection with a robbery offense gone

wrong” and concluded that this offense was made worse by “how bad the

underlying or predicate felony of Child Endangering is.”         (Id.)   Taking into

consideration the facts and circumstances of this case, Cooper’s history, his lack of

remorse, and the fact that it was the worst form of the offense, the trial court was

persuaded that Cooper was “among the most likely of criminal defendants to

commit new similar offenses.” (Id. at 21.) Further, the trial court determined that

the maximum sentence was “certainly not disproportionate to the harm caused, the

impact upon the principal victim, and the impact upon the tangential victims.”

(Id.)

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Case No. 4-15-10


       {¶11} Cooper’s argument on appeal suggests that the trial court improperly

applied the factors of R.C. 2929.11 and 2929.12. In particular, Cooper alleges that

the sentence is not “ ‘consistent with sentences imposed for similar crimes

committed by similar offenders,’ ” because “it is unlikely that other individuals

with no prior felonies would receive a maximum sentence.” (App’t Br. at 4-5,

quoting R.C. 2929.11(B).) He further contends that the trial court focused on the

death of a child and lack of remorse instead of “weighing the principles and

factors required by [R.C.] 2929.11 and 2929.12.” (App’t Br. at 6.)

       {¶12} Cooper fails to sustain the merits of his first challenge, as he admits

in his brief that his allegation that other individuals with no prior felonies would

not receive a maximum sentence is “only speculative.” (App’t Br. at 5.) He fails

to sustain his other challenge as well. Contrary to his suggestion that the trial

court focused solely on the death of a child, a review of the sentencing transcript,

summarized above, shows that the trial court considered Cooper’s criminal record,

prior history of violence, allegations of abuse against Emily, accounts of prior

incidents of endangering Emily’s child, and the known details of the instant

offense, which led the trial court to conclude that a maximum sentence was

warranted.

       {¶13} An appellate court should not substitute its judgment for that of the

trial court because the trial court is in a better position to judge the defendant’s

chances of recidivism and determine the effects of the crime on the victim. State

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Case No. 4-15-10


v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16. We find no

abuse of discretion in the trial court’s analysis of the relevant statutory factors.

Furthermore, in light of the extensive evidence suggesting the likelihood of

Cooper’s recidivism, we find no error in the trial court’s imposition of a maximum

sentence. See Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 11.

       {¶14} Accordingly, the assignment of error is overruled.

                                    Conclusion

       {¶15} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Common Pleas Court of Defiance County, Ohio, is

therefore affirmed.

                                                               Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/hlo




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