[Cite as State v. Jones, 2019-Ohio-4838.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2019-L-010
        - vs -                                       :

ERIC D. JONES, JR.,                                  :

                 Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR
000598.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Donald J. Malarcik, 54 East Mill Street, Suite 400, Akron, OH 44308 (For Defendant-
Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Eric D. Jones, Jr., appeals his sentence for

Aggravated Vehicular Homicide and Operating a Vehicle Under the Influence in the

Lake County Court of Common Pleas. The issue to be determined in this case is

whether a court errs when it considers the purposes and principles of sentencing and

pertinent sentencing factors but orders a sentence that varies from those issued by

other courts under similar factual circumstances. For the following reasons, we affirm
the decision of the lower court.

       {¶2}   On August 6, 2018, Jones was indicted by the Lake County Grand Jury for

the following: two counts of Aggravated Vehicular Homicide (Counts One and Three),

felonies of the second degree, in violation of R.C. 2903.06(A)(1)(a); Operating a Vehicle

Under the Influence (Count Two), a misdemeanor of the first degree, in violation of R.C.

4511.19(A)(1)(a); Operating a Vehicle Under the Influence (Count Four), a

misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(j)(ix); and

Aggravated Vehicular Homicide (Count Five), a felony of the third degree, in violation of

R.C. 2903.06(A)(2).

       {¶3}   A plea hearing was held on November 1, 2018, at which Jones entered

pleas of guilty to Counts One and Two, Aggravated Vehicular Homicide and Operating a

Vehicle Under the Influence. These offenses arose from an incident in which Jones

struck and killed a pedestrian, 17-year-old Maddisan Chase, while driving under the

influence of drugs. In a November 2, 2018 Judgment Entry, the court memorialized its

acceptance of Jones’ pleas. A Nolle Prosequi was entered on the remaining counts of

the indictment.

       {¶4}   A sentencing hearing was held on December 19, 2018. Defense counsel

contended that Jones had repeatedly expressed remorse and accepted responsibility

through pleading guilty to two serious counts from the indictment. Counsel explained

that the offense was a result of Jones taking drugs due to working long hours and past

trauma in his life and that Jones had taken methamphetamine the night before the

offense was committed, then also took Xanax because he mistakenly believed it was

nighttime rather than time for him to go to work. Jones apologized for his actions and




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stated that he is dedicating his life to sobriety. The State requested the maximum

sentence, emphasizing the harm caused to the victim’s family and that Jones committed

the offense while on judicial release following an aggravated robbery conviction.

      {¶5}    The court stated that it had reviewed the presentence investigation report,

drug and alcohol evaluation, the victim impact statement, and letters on behalf of the

victim and Jones, as well as considered the purposes and principles of felony

sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C.

2929.12. It found that the death of the victim made the offense more serious and there

were no factors making the offense less serious.             As to recidivism, the court

emphasized that the offense was committed while Jones was on judicial release, he had

a history of juvenile and adult convictions, including domestic violence charges and

aggravated robbery, and had not responded favorably to previous community control. It

concluded that there was “either a lack of awareness of the need or a lack of or refusal

to engage in treatment that directly led to this offense.” The judge found Jones was

remorseful.

      {¶6}    The court imposed a sentence of eight years in prison for Aggravated

Vehicular Homicide and 180 days for Operating a Vehicle Under the Influence, with the

sentences to be served consecutively. The foregoing was memorialized in the court’s

Judgment Entry of Sentence filed on January 8, 2019.

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

      {¶8}    “Defendant’s sentence to maximum consecutive sentences was not

supported by the record and is otherwise contrary to law.”

      {¶9}    “The court hearing an appeal [of a felony sentence] shall review the




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

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * if it

clearly and convincingly finds either * * * (a) [t]hat the record does not support the

sentencing court’s findings under division * * * (B) or (D) of section 2929.13 * * * [or] (b)

[t]hat the sentence is otherwise contrary to law.” Id.

       {¶10} “‘A sentence is contrary to law if (1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) the trial court failed to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors in R.C. 2929.12.’” State v. Wilson, 11th Dist. Lake No. 2017-L-028,

2017-Ohio-7127, ¶ 18, quoting State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-

Ohio-533, ¶ 14. “[A]n 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.” State v. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

       {¶11} Jones argues that his sentence does not “conform with other maximum

consecutive sentences of similarly situated defendants.”        He cites several cases in

which a defendant received the same sentence for more serious conduct or received a

lesser sentence for factually similar conduct.

       {¶12} In addressing “similarly situated defendant” sentencing arguments, this

court has repeatedly emphasized that “[a] consistent sentence is not derived from a

case-by-case comparison[.]” (Emphasis sic.) State v. Sari, 11th Dist. Lake No. 2016-L-




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109, 2017-Ohio-2933, ¶ 52, citing State v. Swiderski, 11th Dist. Lake No. 2004-L-112,

2005-Ohio-6705, ¶ 58. Instead, consistent sentencing is achieved when the trial court

applies the statutory sentencing guidelines.     State v. Simpson, 11th Dist. Lake No.

2016-L-014, 2016-Ohio-7746, ¶ 28. This rationale recognizes that “the goal of felony

sentencing pursuant to R.C. 2929.11(B) is to achieve ‘consistency’ not ‘uniformity.’”

(Citations omitted.) Id. “[I]n order to show a sentence is inconsistent with sentences

imposed on other offenders, a defendant must show the trial court failed to properly

consider the statutory purposes and factors of felony sentencing.” Sari at ¶ 52.

       {¶13} Thus, it is not necessary to compare whether the sentence in the present

matter is the same or similar to those set forth in the cases cited by Jones. Rather, this

court will evaluate whether the trial court properly performed its duty to apply the

required felony sentencing factors.

       {¶14} Pursuant to R.C. 2929.11(A), “[a] court that sentences an offender for a

felony shall be guided by the overriding purposes of felony sentencing * * * [which] 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.” The 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.” Id. In determining “the most effective way to comply with the purposes

and principles of sentencing,” a trial court must consider factors relating to the

seriousness of the conduct and the likelihood of the offender’s recidivism, as well as any




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other relevant factors. R.C. 2929.12(A).

       {¶15} “[I]n sentencing a defendant for a felony, ‘a court is merely required to

“consider” the purposes and principles of sentencing in R.C. 2929.11 and the statutory *

* * factors set forth in R.C. 2929.12,’” not make “specific findings or use specific

language.” (Citation omitted.) State v. Brown, 11th Dist. Lake No. 2014-L-075, 2015-

Ohio-2897, ¶ 34; State v. Jackson, 11th Dist. Lake No. 2014-L-124, 2015-Ohio-2608, ¶

21.

       {¶16} The lower court expressly stated that it considered the purposes and

principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in

R.C. 2929.12. In doing so, it considered all parts of the record, including the PSI,

letters, and statements made at trial, as well as the need for incapacitation, deterrence,

rehabilitation, and restitution. It also stated its rationale for Jones’ sentence, highlighting

specific factors such as the harm to the victim, Jones’ criminal record, and the fact that

Jones had committed the crime while on community control following judicial release

from a prior offense of aggravated robbery. In sum, the court gave a detailed analysis

demonstrating its consideration of the necessary sentencing factors.

       {¶17} Jones raises several specific arguments he contends demonstrate the

court failed to properly consider and weigh the required sentencing factors. First, he

emphasizes the lack of factors making the offense more serious, noting that the only

factor present was that the victim died, which he deems of limited value since it was an

element of the offense of Aggravated Vehicular Homicide. While we recognize that all

Aggravated Vehicular Homicide offenses do result in death, the court was entitled to

consider the death of the victim, the manner in which she died (as a pedestrian walking




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down the street), and the impact on her family, as part of its analysis of the seriousness

of the offense under R.C. 2929.12(B), which permits the consideration of listed factors

as well as “any other relevant factors.” Importantly, the court also found the presence of

no factors making the crime less serious, which ultimately weighed into the court’s

overall analysis. Jones contends that the R.C. 2929.12(C)(3) factor making the offense

less serious should have been applied in his favor, since he “did not cause or expect to

cause physical harm to any person or property.” However, it is a relevant consideration

that Jones voluntarily chose to drive a vehicle intoxicated, an act which could easily be

anticipated to result in physical harm to a person or property. While he also argues that

he stayed at the scene of the incident, showing cooperation with police and making the

offense less serious, the police report in the PSI shows that he provided inconsistent

stories about his drug use, raising legitimate questions about his honesty and

cooperation.

       {¶18} These seriousness factors cannot be viewed in a vacuum but must be

weighed against the recidivism factors, with this court recognizing that “the trial court is

not obligated * * * to give any particular weight or consideration to any [R.C. 2929.12]

sentencing factor.” (Citation omitted.) State v. Pishner, 11th Dist. Portage No. 2017-P-

0004, 2017-Ohio-8689, ¶ 20.       Jones has both a juvenile and adult criminal record,

including domestic violence, theft, and aggravated robbery. He committed the present

crime while on community control following judicial release for aggravated robbery,

demonstrating a failure to respond favorably to past sanctions. Although Jones had an

ongoing drug problem, he continued to use drugs leading to the commission of this

offense. The court properly took the foregoing into account in applying the necessary




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factors under R.C. 2929.12(D).

      {¶19} As to recidivism, Jones contends that the court improperly applied the

R.C. 2929.12(D)(4) factor, which provides: “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.”        Jones contends that this factor was

inapplicable since he acknowledged his drug abuse and engaged in programs to

address this abuse. While it may be accurate that Jones has at times completed drug

treatment, it is apparent from the offense that occurred here that his drug use implicates

recidivism considerations. State v. Moore, 6th Dist. Lucas No. L-17-1291, 2019-Ohio-

1032, ¶ 27 (the court properly weighed the defendant’s statements that he was not a

risk for recidivism since he had been sober and received treatment against the evidence

demonstrating that his conduct and criminal record was inconsistent with those

statements). Even if this factor did not expressly apply because Jones failed to “refuse”

treatment, R.C. 2929.12(D) allows for consideration of “any other relevant factors.” The

fact that Jones committed the crime while using drugs was properly considered.

      {¶20} Finally, Jones argues that the lower court failed to give proper weight to

his expression of remorse as the judge stated: “I think you are remorseful but I’m not

sure what that has to do with making recidivism less likely but nonetheless I’ll make that

finding.” By this very statement, the court, however, made a finding that Jones had

expressed remorse. It simply chose to weigh this factor against the others discussed

above, specifically noting that Jones’ remorse “only goes so far” given the facts of the

offense and his prior record. Even if a court determines there is genuine remorse, this




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does not “mandate a lesser sentence where the judge determines * * * that the

maximum * * * sentence is necessary to achieve the purposes of felony sentencing, i.e.,

protecting the public from future crime by the offender and punishing the offender.”

(Citation omitted.) State v. Karsikas, 11th Dist. Ashtabula No. 2014-A-0065, 2015-Ohio-

2595, ¶ 36. As the court considered the proper factors, we find no lack of consistency

in its sentence.

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

       {¶22} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, sentencing Jones to a term of eight and a half years for Aggravated

Vehicular Homicide and Operating a Vehicle While Under the Influence, is affirmed.

Costs to be taxed against appellant.



CYNTHIA WESTCOTT RICE, J., concurs,

THOMAS R. WRIGHT, P.J., concurs in judgment only.




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