[Cite as State v. Barnes, 2017-Ohio-8443.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2017-T-0040
        - vs -                                  :

JONATHAN M. BARNES, JR.,                        :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR
00486.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, Ashleigh Musick, Assistant Prosecutor,
and Charles L. Morrow, Assistant Prosecutor, Administration Building, Fourth Floor,
160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For
Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Jonathan M. Barnes, appeals his sentence for

Trafficking in Heroin in the Trumbull County Court of Common Pleas. The issue to be

determined in this case is whether a trial court violates a defendant’s right to due

process by commenting on the drug epidemic and drug deaths when sentencing him for

Trafficking. For the following reasons, the judgment of the lower court is affirmed.
       {¶2}   On September 27, 2016, Barnes was indicted by the Trumbull County

Grand Jury on one count of Trafficking in Heroin, a felony of the first degree, in violation

of R.C. 2925.03(A)(2) and (C)(6)(f), and one count of Possession of Heroin, a felony of

the first degree, in violation of R.C. 2925.11(A) and (C)(6)(e). Both counts had a firearm

specification pursuant to R.C. 2941.141, and a forfeiture specification, as provided for in

R.C. 2941.1417 and R.C. 2981.02 and .04.

       {¶3}   A Finding on Guilty Plea to the Amended-Indictment was filed on March

10, 2017. Barnes pled guilty to one count of Trafficking in Heroin, as charged in the

Indictment, as well as the accompanying specifications. The State agreed to dismiss

the remaining count. The court accepted the plea and entered a finding of guilt.

       {¶4}   A sentencing hearing was held on April 3, 2017. Barnes apologized and

accepted responsibility for his actions.    The State recommended a five-year prison

sentence. The court noted Barnes had no prior felony convictions and stated that “the

reason you’re not getting the top of the line prison time is because your record is

relatively minimal.”

       {¶5}   The court asked Barnes if he knew what the “number one killer of people

is today,” to which Barnes responded “heroin.” The court replied: “Yes. What were you

doing?,” to which Barnes responded, “selling heroin.” The court stated:

              The epidemic * * * [has] been around for a long time and every day

              I look in the obituary and I see people that are too young to die, and

              it says they died suddenly at their home, which means they OD’d. I

              see more of those than I do shootings, die of old age.            You

              understand what you did?




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       {¶6}   The court sentenced Barnes to a term of five years in prison for Trafficking

in Heroin and one year for the gun specification, for a total term of six years. An Entry

on Sentence was filed on April 12, 2017, memorializing the sentence and stating that

the court had considered the purposes and principles of felony sentencing in R.C.

2929.11 and the factors in R.C. 2929.12, as well as the record, oral statements, and

presentence investigation report.

       {¶7}   Barnes timely appeals and raises the following assignment of error:

       {¶8}   “Appellant, Jonathan M. Barnes, assigns as error that the sentencing

judge erred when he made statements during the sentencing hearing that rendered the

sentencing hearing fundamentally unfair.”

       {¶9}   The standard of review for felony sentences is provided by R.C.

2953.08(G)(2). “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.”     R.C. 2953.08(G)(2).       “Applying the plain language of 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 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.

       {¶10} Barnes does not argue that the court failed to sentence him to a term that

was within the permissible range or that it failed to consider the R.C. 2929.11 and .12

factors.   There is no question that the court stated it considered the factors and

sentenced him within the permissible range, which, for the present case of Trafficking in




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Heroin, is a term of three to eleven years. R.C. 2925.03(C)(6)(f); R.C. 2929.14(A)(1).

Barnes received a prison term toward the lower end of that range, with the court

recognizing his limited criminal record.

       {¶11} Barnes emphasizes that the judge’s comments about the heroin epidemic

and deaths demonstrated that it improperly “enhanced” his sentence, resulting in an

unfair proceeding and violating his due process rights.

       {¶12} “The United States Supreme Court has recognized that even a sentence

within the limits of a state’s sentencing laws may violate due process if the sentencing

proceedings are fundamentally unfair.” State v. Arnett, 88 Ohio St.3d 208, 217, 724

N.E.2d 793 (2000), citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92

L.Ed. 1690 (1948); also Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51

L.Ed.2d 393 (1977) (“[t]he defendant has a legitimate interest in the character of the

procedure which leads to the imposition of sentence even if he may have no right to

object to a particular result of the sentencing process”).

       {¶13} As the Ohio Supreme Court has explained, a sentence is properly vacated

as violative of due process when a “sentencing judge’s comments reveal that the court

imposed or enhanced the offender’s sentence because of improper considerations.”

Arnett at 218. These include the offender’s race, the consideration of false or unreliable

information, or parochialism. Id.

       {¶14} Barnes essentially contends that he was given a greater sentence

because of the risk drugs pose to users, although he was not alleged to have caused

harm to any particular individual, emphasizing that many factors apart from drug dealing

have led to the epidemic. However, he cites to no case law to support his position that




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a judge’s comments about the danger of drug use amount to a violation of due process

or an enhancement of his sentence due to improper considerations.

      {¶15} The judge’s brief comments did not reach any conclusion as to the cause

of the whole epidemic, nor did he state that Barnes was responsible for causing the

epidemic or any deaths. The trial court’s comments amount to a recognition of the

dangers presented to society by drug trafficking, which is a relevant concern given

Barnes’ conviction. A judge is not prohibited from recognizing potential consequences

that may result from a defendant’s actions. Pursuant to R.C. 2929.11, the trial court

must consider protecting the public when sentencing an offender and it is not

unreasonable to consider the harm caused to the community by selling drugs in

determining the seriousness of the crime and the appropriate punishment. State v.

Dari, 8th Dist. Cuyahoga No. 99367, 2013-Ohio-4189, ¶ 8, 18 (where a defendant was

convicted of selling bath salts, the trial court’s statements about the drug epidemic and

that “this stuff kills” were not improper and “simply took into consideration the serious[]

nature of the offenses to which [the defendant] pleaded guilty”). See also State v.

McColor, 7th Dist. Mahoning No. 11 MA 64, 2013-Ohio-1279, ¶ 10-11 (where a

defendant was convicted of crimes related to his failure to confine a pit bull, the court

did not violate the defendant’s due process in referencing the risk of death to children

posed by improperly restrained dogs).

      {¶16} To the extent that Barnes argues these comments were based only on the

judge’s personal views, we emphasize that “[a] judge’s sentencing requires the exercise

of personal judgment; the court is not required to divorce itself from all personal

experiences and make his decision in a vacuum.” State v. Cook, 65 Ohio St.3d 516,




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529, 605 N.E.2d 70 (1992). The fact that the judge’s comments were based in part on

observations he had made regarding the cause of deaths in the community does not

mean that his comments were improper or deprived Barnes of due process.

      {¶17} Given the foregoing, and in the absence of citation to any case law to the

contrary, we do not find that the trial court violated Barnes’ due process rights by

considering the impact of drug dealing in the community.

      {¶18} The sole assignment of error is without merit.

      {¶19} For the foregoing reasons, Barnes’ sentence for Trafficking in Heroin is

affirmed. Costs to be taxed against appellant.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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