[Cite as State v. Jones, 2019-Ohio-4938.]




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




STATE OF OHIO,
                                                          CASE NO. 17-19-08
       PLAINTIFF-APPELLEE,

       v.

JAVONTE E. JONES,                                         OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 19CR000052

                                      Judgment Affirmed

                           Date of Decision: December 2, 2019



APPEARANCES:

        Jim R. Gudgel for Appellant

        Timothy S. Sell for Appellee
Case No. 17-19-08


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Javonte E. Jones (“Jones”) appeals the judgment

of the Shelby County Court of Common Pleas, alleging (1) that the trial court abused

its discretion in sentencing him; (2) that his trial counsel was ineffective; and (3)

that the trial court’s order as to restitution was not based upon competent, credible

evidence. For the reasons set forth below, the judgment of the trial court is affirmed.

                            Facts and Procedural History

       {¶2} On February 18, 2019, Jones and Amonte Clayton (“Clayton”) were

inside a Wal-Mart. Doc. 10. Clayton used a crowbar to force open a metal cage

that stored a number of iPads. Doc. 10. In this process, the metal cage was

damaged. Jones and Clayton removed nine iPads, left the store, and got in a vehicle.

At roughly 5:30 A.M., Jones drove out of the Wal-Mart parking lot. Doc. 10.

However, Officer Anderson Bradley (“Officer Bradley”) noticed that Jones did not

have his headlights activated. Doc. 10. At this point, Officer Bradley activated his

lights to initiate a traffic stop, but Jones did not stop his vehicle and drove onto the

interstate. Doc. 10. Officer Bradley continued to pursue Jones at speeds that ranged

from eighty to ninety-five miles per hour. Doc. 10. The police deployed spike strips

in Jones’s path of travel. Doc. 10. Jones’s vehicle came to a stop only after the

spike strips disabled his vehicle. Doc. 10. In the vehicle, the police found nine

iPads, two shirts, and a tote bag that had been stolen from Wal-Mart. Doc. 10.



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       {¶3} On February 21, 2019, Jones was indicted on one count of failure to

comply with the order or signal of an officer in violation of R.C. 2921.331(B); one

count of theft in violation of R.C. 2913.02(A)(1); and one count of vandalism in

violation of R.C. 2909.05(B)(1)(b). Doc. 1. On March 26, 2019, Jones filed a

petition to enter a plea of guilty. Doc. 44. This petition was based upon an

underlying plea agreement. Doc. 44. Pursuant to this agreement, Jones pled guilty

to failure to comply with the order or signal of an officer, and the State dismissed

the charges of theft and vandalism. Doc. 44, 54. On May 13, 2019, the trial court

entered its judgment entry of sentencing. Doc. 54. The trial court sentenced Jones

to twenty-four (24) months in prison. Doc. 54. The trial court also ordered Jones

to pay Wal-Mart restitution in the amount of $7,152.22. Doc. 54.

       {¶4} The appellant filed his notice of appeal on May 31, 2019. Doc. 65. On

appeal, Jones raises the following assignments of error:

                           First Assignment of Error

      The Court abused its discretion by imposing a prison sentence of
      24 months.

                          Second Assignment of Error

       Defense Counsel was ineffective for not requesting a separate
       restitution hearing.

                           Third Assignment of Error

       The trial court committed reversible error under Section 2929.18
       when it sentenced the Defendant-Appellant to pay restitution in


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Case No. 17-19-08


       the amount of $7,152.55 without a reasonable degree of certainty
       based on competent and credible evidence.

                             First Assignment of Error

       {¶5} Jones argues that the trial court did not properly balance the seriousness

and recidivism factors in imposing his sentence.

                                   Legal Standard

       {¶6} Trial courts are to sentence convicted felons in accordance with the

overriding purposes of felony sentencing, which

       are 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. “To effectuate compliance with these overriding purposes, the Ohio

Revised Code requires the trial court to consider a number of factors listed in R.C.

2929.12.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The

R.C. 2929.12 factors direct the trial court to evaluate the seriousness of the offense

and the likelihood of recidivism. R.C. 2929.12.

       Although the trial court must consider the purposes and
       principles of felony sentencing set forth in R.C. 2929.11 and the
       sentencing factors listed in R.C. 2929.12, the sentencing court is
       not required to ‘state on the record that it considered the
       statutory criteria or discuss[ed] them.’ State v. Polick, 101 Ohio
       App.3d 428, 431 [655 N.E.2d 820] (4th Dist. 1995). A trial court’s
       statement that it considered the required statutory factors,
       without more, is sufficient to fulfill its obligations under the
       sentencing statutes.


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Case No. 17-19-08


State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31.

         {¶7} Appellate courts defer to the broad discretion of the trial court in matters

of sentencing.1 State v. Witt, 3d Dist. Auglaize No. 2-17-09, 2017-Ohio-7441, ¶ 12.

If the defendant establishes by clear and convincing evidence that his or her sentence

is “(1) contrary to law and/or (2) unsupported by the record,” an appellate court has

the authority, pursuant to R.C. 2953.08(G)(2), “to increase, reduce, or otherwise

modify a sentence * * *.” State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971,

62 N.E.3d 178, ¶ 1.

         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.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22,

quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three

of the syllabus.

                                              Legal Analysis

         {¶8} The trial court, at the sentencing hearing and in its judgment entry,

stated that it considered the purposes and principles of sentencing in R.C. 2929.11




1
  We note that the trial court is given discretion in applying the statutory factors in the process of determining
an appropriate sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of
discretion is clearly and convincingly contrary to law. Thus, we examine the record to determine whether the
trial court clearly and convincingly failed to act in accordance with the laws governing the imposition of
sentences.

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Case No. 17-19-08


and the seriousness and recidivism factors listed in R.C. 2929.12. Doc. 54. Tr. 10.

See Magette, supra, at ¶ 31. Further, at the sentencing hearing, the trial court noted

that Jones had a past criminal record; that Jones has “had difficulty accepting

responsibility for * * * [his] conduct in this”; and that Jones had two other offenses

that were dismissed pursuant to the plea agreement. Tr. 10-11. The trial court also

mentioned that Jones fled the scene of the crime at speeds that neared one hundred

miles per hour and had to be stopped using spike strips. Tr. 11.

       {¶9} Further, when Jones pled guilty, he was informed that he could be

sentenced up to thirty-six months in prison. Doc. 44. Thus, not only is this sentence

within the range permitted by statute, but the imposed sentence falls short of what

Jones was aware that he could receive by pleading guilty. After reviewing the

evidence in the record, we conclude that some competent, credible evidence

supports Jones’s sentence. Jones has not demonstrated, by clear and convincing

evidence, that his sentence is contrary to law. Thus, Jones’s first assignment of error

is overruled.

                            Second Assignment of Error

       {¶10} Jones argues that he was denied his right to the effective assistance of

counsel because his attorney did not request a separate restitution hearing.

                                   Legal Standard

       {¶11} “Under Ohio law, ‘a properly licensed attorney is presumed to carry

out his duties in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-

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Case No. 17-19-08


37, 2018-Ohio-2438, ¶ 26, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993

WL 270995 (July 22, 1993). In order to prove an ineffective assistance of counsel

claim, the appellant must carry the burden of establishing (1) that his or her

counsel’s performance was deficient and (2) that this deficient performance

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).

       {¶12} The first prong “requires showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 61. “Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance.” State v. Pellegrini, 3d Dist. Allen No.

1-12-30, 2013-Ohio-141, ¶ 40. In order to establish prejudice, “the defendant must

show a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different.” State v. Davis, 3d Dist. Seneca No. 13-16-

30, 2017-Ohio-2916, ¶ 36, quoting State v. Bibbs, 3d Dist. Hancock No. 5-16-11,

2016-Ohio-8396, ¶ 13.

       {¶13} “If the appellant does not establish one of these two prongs, the

appellate court does not need to consider the facts of the case under the other prong

of the test.” State v. Smalley, 3d Dist. Henry No. 7-18-30, 2019-Ohio-1572, ¶ 5,

citing State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). “Appellate

courts are to examine the record to determine whether the defendant had a fair

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Case No. 17-19-08


proceeding under the circumstances and whether substantial justice was done.”

State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, citing State v.

Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.

                                   Legal Analysis

       {¶14} In this case, Jones expressly agreed to pay restitution as part of a plea

agreement in which two charges against him were dismissed. Doc. 44. At the

beginning of Jones’s sentencing hearing, the State clearly stated that the amount of

restitution requested by Wal-Mart was $7,152.55. Tr. 7. The State obtained this

figure from the presentence investigation. Tr. 7. This apparently included the costs

of the electronics and the damage to the interior of the cage that contained the iPads.

Tr. 9. At this point, Jones’s counsel, in reference to the amount of restitution that

Wal-Mart requested, said: “I believe that they [Wal-Mart] would have at least

received back the lost or the—the electronics equipment. So I’m not sure why they

couldn’t have sold that. It wasn’t damaged as far as I know.” Tr. 9.

       {¶15} In response to this statement, the trial court stated that it was obligated

to order restitution in this case but asked Jones if he wanted to present any

information to contest the amount of restitution that had been presented by Wal-

Mart. Tr. 8. After a brief, off-the-record colloquy between Jones and his trial

counsel, the Defense indicated that it would not contest the amount of the damages

that Wal-Mart reported. Tr. 9. The trial court stated that it was going to impose the



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Case No. 17-19-08


amount of restitution as a “joint and several obligation * * * of the co-defendants in

the case.” Tr. 9.

       {¶16} The trial court then gave Jones another opportunity to contest the

amount of restitution at a separate hearing. Tr. 10. Again, defense counsel engaged

in another off-the-record colloquy with Jones. Tr. 11. Jones, who was aware that

the amount of restitution that Wal-Mart requested was $7,152.55, indicated to his

trial counsel that he “believe[d] that he[ was] capable of * * * paying restitution and

[was] willing to pay restitution in this matter.” Tr. 10.

       {¶17} Thus, the record indicates that defense counsel effectuated the wishes

of Jones in declining the opportunity to have a restitution hearing. Tr. 10. Jones

has not carried the burden of establishing that his trial counsel was ineffective. See

State v. Banks, 2d Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶ 11. After

reviewing the record, we do not find any indication that defense counsel’s

performance in this matter fell below the objective standard of reasonableness that

is held to attorneys.

       {¶18} We also note that Jones has not met the burden of proving that he was

prejudiced. Jones asserts that the failure of his attorney to request a restitution

hearing operated to his prejudice because he was ordered to pay $7,251.55 in

restitution. However, the fact that the defense counsel was effectuating Jones’s

wishes also defeats his argument as to prejudice. In this case, Jones was aware of

the amount of restitution that Wal-Mart was requesting. Jones also knew, from his

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Case No. 17-19-08


defense counsel’s statements at the sentencing hearing, that there were some

arguments against the amount of the restitution. The trial court gave Jones two

opportunities to contest the amount of restitution.

       {¶19} However, Jones twice chose not to contest the amount of restitution

and instead indicated to his counsel that he was willing and capable of paying for

this amount. Tr. 10. Thus, Jones has not, on appeal, alleged prejudice that resulted

from his counsel’s performance. Rather, he has alleged prejudice that resulted from

his own choices. For these reasons, Jones’s second assignment of error is overruled.

                              Third Assignment of Error

       {¶20} Jones argues that the trial court’s order for him to pay $7,152.22 in

restitution is not based upon competent, credible evidence.

                                    Legal Standard

       {¶21} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part

of a sentence in order to compensate the victim for economic loss. State v. Lalain,

136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20. R.C. 2929.18(A)

reads, in its relevant part, as follows:

       If the court imposes restitution, at sentencing, the court shall
       determine the amount of restitution to be made by the offender.
       If the court imposes restitution, the court may base the amount of
       restitution it orders on an amount recommended by the victim,
       the offender, a presentence investigation report, estimates or
       receipts indicating the cost of repairing or replacing property,
       and other information, provided that the amount the court orders
       as restitution shall not exceed the amount of the economic loss


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Case No. 17-19-08


       suffered by the victim as a direct and proximate result of the
       commission of the offense.

R.C. 2929.18(A)(1). “There must be competent and credible evidence in the record

from which the court may ascertain the amount of restitution to a reasonable degree

of certainty.” State v. Estes, 3d Dist. Seneca No. 13-11-14, 2011-Ohio-5740, ¶ 20.

       {¶22} R.C. 2929.18(A)(1) also provides that “[i]f the court decides to impose

restitution, the court shall hold a hearing on restitution if the offender, victim, or

survivor disputes the amount.” R.C. 2929.18(A)(1). However, “[a] defendant who

does not dispute an amount of restitution, request a hearing, or otherwise object

waives all but plain error in regards to the order of restitution.” State v. Snowden,

2019-Ohio-3006, --- N.E.3d ---, ¶ 88 (2d Dist.). See State v. Dunham, 5th Dist.

Richland No. 13CA26, 2014-Ohio-1042, ¶ 84; State v. Downie, 183 Ohio App.3d

665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 32 (7th Dist.); State v. Ford, 9th Dist.

Summit No. 26073, 2012-Ohio-1327, ¶ 6.

       {¶23} Under Crim.R. 52(A), “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

Crim.R. 52(B).

       “In order to find plain error under Crim.R. 52(B), there must be
       an error, the error must be an ‘obvious’ defect in the trial
       proceedings, and the error must have affected ‘substantial
       rights.’” State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-
       Ohio-6524, ¶ 12, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759
       N.E.2d 1240 (2002). ‘The standard for plain error is whether, but
       for the error, the outcome of the proceeding clearly would have
       been otherwise.’ State v. Hornbeck, 155 Ohio App.3d 571, 2003-

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       Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist.), citing State v. Long, 53
       Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error is
       taken “only to ‘prevent a manifest miscarriage of justice.’” State
       v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 23,
       quoting Long, supra, at paragraph three of the syllabus.

State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 17. Under

Crim.R. 52(B), “the defendant bears the burden of demonstrating that a plain error

affected his substantial rights.” (Emphasis sic.) State v. Perry, 101 Ohio St.3d 118,

2004-Ohio-297, 802 N.E.2d 643, ¶ 14.

                                   Legal Analysis

       {¶24} Jones, on appeal, seeks to contest the amount of restitution that the

trial court imposed. R.C. 2929.18(A)(1) provides an avenue for a defendant to

contest the amount of restitution. R.C. 2929.18(A)(1). However, Jones chose not

to contest the amount of restitution and did not raise these arguments before the trial

court. Tr. 9-10. In fact, Jones indicated to the trial court that he was “capable” and

“willing” to pay the amount of restitution submitted by Wal-Mart. Tr. 10. Since

Jones did not contest the amount of restitution before the trial court, Jones has

waived all but plain error.

       {¶25} On appeal, Jones has not carried the burden of demonstrating that the

trial court committed plain error in imposing $7,152.22 in restitution. In this case,

the trial court based the amount of restitution on the economic losses reported by

the victim, Wal-Mart. Doc. 54. Tr. 9. The trial court had the authority, under R.C.

2929.18(A)(1), to base the amount of the restitution “on an amount recommended

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Case No. 17-19-08


by the victim, the offender, a presentence investigation report, estimates or receipts

* * *.” (Emphasis added.) R.C. 2929.18(A)(1).

       {¶26} The evidence in the record indicates that the trial court acted in

accordance with the dictates of R.C. 2929.18(A)(1). After reviewing the evidence

in the record, we find no indication of an obvious defect in the process of imposing

restitution. For this reason, Jones’s third assignment of error is overruled.

                                     Conclusion

       {¶27} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Shelby County Court of Common Pleas is

affirmed.

                                                                 Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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