[Cite as State v. Watkins, 2018-Ohio-4921.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASES NO. 8-18-21

        v.

MARK E. WATKINS,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR17-10-0334

                                      Judgment Affirmed

                          Date of Decision:   December 10, 2018




APPEARANCES:

        Eric J. Allen for Appellant

        Alice Robinson-Bond for Appellee
Case No. 8-18-21


SHAW, J.

       {¶1} Defendant-appellant, Mark Watkins (“Watkins”), brings this appeal

from the April 4, 2018, judgment of the Logan County Common Pleas Court

sentencing him to 30 months in prison after Watkins was convicted of Attempted

Felonious Assault in violation of R.C. 2923.02 and R.C.2903.11(A)(1), a felony of

the third degree. On appeal, Watkins argues that the trial court erred by using his

juvenile record to “create bias in the sentencing process” and that the record did not

support a prison term of 30 months.

                                 Procedural History

       {¶2} On October 10, 2017, Watkins was indicted for Felonious Assault in

violation of R.C. 2903.11(A)(1), a felony of the second degree. Watkins originally

pled not guilty to the charge.

       {¶3} On February 21, 2018, Watkins entered into a written, negotiated plea

agreement wherein he agreed to plead guilty to the amended charge of Attempted

Felonious Assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1), a felony of

the third degree, and in exchange the State agreed to stand silent at sentencing. A

change-of-plea hearing was held, wherein Watkins signed the plea agreement in

open court. The trial court conducted a Criminal Rule 11 colloquy with Watkins,

ultimately determining that Watkins was entering his plea knowingly, intelligently,




                                         -2-
Case No. 8-18-21


and voluntarily. Afterward, the trial court accepted Watkins’ plea and found him

guilty, setting sentencing for a later date.

          {¶4} Notably, at the change-of-plea hearing, the victim was given a chance

to speak, and the victim objected to any reduction of charges. The victim indicated

he did not know Watkins, that he had never spoken to him, and that Watkins walked

up behind him outside of a bar and knocked him down unprovoked. The victim

indicated that his head hit a curb and that Watkins kicked him multiple times while

he was on the ground, knocking him unconscious. The victim stated that he had no

clue why it happened, that he had swelling on his brain and seizures as a result of

the incident. The victim indicated he missed two months of work because of the

attack.

          {¶5} On April 3, 2018, the matter proceeded to sentencing. At the sentencing

hearing, defense counsel spoke in mitigation of sentence, requesting community

control with a local jail sentence. The State stood silent and did not make a

recommendation. The trial court then reviewed Watkins’ pre-sentence investigation,

including his prior convictions. The trial court noted that Watkins had multiple prior

misdemeanor assaults, that he had been adjudicated delinquent as a child, and that

only days prior to the incident in this case, Watkins had been charged with violating

a protection order. After considering the principles and purposes of sentencing, the




                                           -3-
Case No. 8-18-21


trial court sentenced Watkins to 30 months in prison.            A judgment entry

memorializing his sentence was filed April 4, 2018.

      {¶6} It is from this judgment that Watkins appeals, asserting the following

assignments of error for our review.

                          Assignment of Error No. 1
      The trial court erred by using the defendant-appellant’s juvenile
      record to create bias in the sentencing process.

                          Assignment of Error No. 2
      The record in this matter does not support the stated prison
      sentence of thirty months.

                            First Assignment of Error

      {¶7} In Watkins’ first assignment of error, he argues that the trial court erred

by “using [his] juvenile record to create bias in the sentencing process.”

Specifically, he contends that the trial court used Watkins’ juvenile record to

“lengthen” his sentence.

                               Standard of Review

      {¶8} Appellate review of issues related to felony sentencing is governed by

R.C. 2953.08(G)(2), which reads as follows:

      (2) The court hearing an appeal under division (A), (B), or (C)
      of this section shall review the record, including the findings
      underlying the sentence or modification given by the sentencing
      court.

      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

                                        -4-
Case No. 8-18-21


       resentencing. The appellate court’s standard for review is not
       whether the sentencing court abused its discretion. The appellate
       court may take any action authorized by this division if it clearly
       and convincingly finds either of the following:

       (a) That the record does not support the sentencing court’s
       findings under division (B) or (D) of section 2929.13, division
       (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
       2929.20 of the Revised Code, whichever, if any, is relevant;

       (b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2). Thus, “an appellate court will reverse a sentence ‘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. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and 12-16-16,

2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, ¶ 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. Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 12, quoting

Cross v. Ledford, 161 Ohio St. 469, at paragraph three of the syllabus (1954).

                              Argument and Analysis

       {¶9} At the outset, we note that the State argues that we should not entertain

Watkins’ appeal at all because his written plea agreement contained a statement that

                                        -5-
Case No. 8-18-21


he was agreeing to waive his right to appeal any judgment to the court of appeals.

Each page of the written plea agreement was initialed by Watkins and the document

was signed. The State cites State v. Horton, 10th Dist. Franklin No. 17AP-266,

2017-Ohio-8549, ¶ 15, for the proposition that based on the written plea agreement

Watkins actually unequivocally waived his right to appeal in this case. Horton does

have one significant difference from the case before us, which would potentially

prevent it from being directly analogous. In Horton, it was also noted at the plea

hearing that the defendant was giving up his right to appeal. Here, the trial court

only indicated at the plea hearing that Watkins’ right to appeal would be severely

limited. It was not restated at the plea hearing that Watkins had waived his right to

appeal without qualification. While we could use Horton as persuasive authority in

this case to potentially overrule Watkins’ assignments of error without addressing

them, Horton still proceeded to address the merits of the arguments in the interest

of justice, and we will do the same.

       {¶10} In his first assignment of error, Watkins argues that the trial court

improperly noted at sentencing that, “We have a prior adjudication of delinquency

or history of criminal convictions. That’s there.” (Tr. at 26). Watkins contends

that the Supreme Court of Ohio made it impermissible for a trial court to use a

juvenile adjudication as a prior conviction that enhances either the degree of, or the

sentence for, a subsequent offense committed as an adult. State v. Hand, 149 Ohio


                                         -6-
Case No. 8-18-21


St.3d 94, 2016-Ohio-5504, at syllabus; but see State v. Carnes, --- Ohio St.3d ---,

2018-Ohio-3256 (finding that a delinquency adjudication can still be used as an

element of the offense for weapons-under-disability under R.C. 2923.13(A)(2)).

       {¶11} Contrary to Watkins’ arguments, no juvenile adjudication was used

here to enhance the degree of the charge, or to change a non-mandatory prison term

to a mandatory prison term as was done in Hand. In fact, this case does not involve

R.C. 2901.08(A) at all, which the Supreme Court of Ohio found unconstitutional in

Hand as it related to juveniles. Watkins thus attempts to misapply Hand to the

situation before us, where it is clearly inapplicable. “Hand does not bar trial courts

from considering an offender’s juvenile record in crafting an appropriate sentence.

In fact, the serious and recidivism factors set forth in R.C. 2929.12 require trial

courts to consider an offender’s juvenile adjudications.” State v. Walton, 8th Dist.

Cuyahoga No. 106103, 2018-Ohio-1963, ¶ 25; State v. Ward, 2d Dist. Clark No.

2015-CA-115, 2018-Ohio-1230, ¶ 35.

       {¶12} As the Walton and Ward courts stated, a trial court is actually directed

to consider whether an offender was previously adjudicated a delinquent child when

sentencing a criminal defendant under R.C. 2929.12(D)(2), which reads as follows.

       (D) The sentencing court shall consider all of the following that
       apply regarding the offender, and any other relevant factors, as
       factors indicating that the offender is likely to commit future
       crimes:

       ***

                                         -7-
Case No. 8-18-21



        (2) The offender previously was 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 a history of criminal convictions.

        {¶13} Here, the trial court summarized Watkins’ history of criminal

convictions and juvenile adjudications, and the trial court noted that Watkins had

been adjudicated delinquent previously. This is compliant with the sentencing

statutes.

        {¶14} For these reasons we cannot find that Watkins has demonstrated by

clear and convincing evidence that his sentence was unlawful or that the trial court

unlawfully relied upon the fact that he had been adjudicated a delinquent child.

Therefore, his first assignment of error is overruled.

                            Second Assignment of Error

        {¶15} In Watkins’ second assignment of error he argues that the record in

this case did not support his 30-month prison sentence. Specifically, he contends

that his ORAS score was low, that the State’s proof of “serious physical harm” was

questionable, that the trial court improperly relied on Watkins’ juvenile record and

that the trial court improperly weighted the victim’s dissatisfaction with the plea

deal.




                                         -8-
Case No. 8-18-21


                                 Relevant Authority

       {¶16} “This [C]ourt has previously held that trial courts have full discretion

to impose any prison sentence within the statutory range as long as they consider

the purposes and principles of felony sentencing and the seriousness and recidivism

factors.” State v. Close, 3d Dist. Logan No. 8-17-45, 2018-Ohio-2244, ¶ 5, citing

State v. Alselami, 3d Dist. Hancock No. 5–11–31, 2012–Ohio–987, ¶ 21. The trial

court is not required to make any specific findings to demonstrate the consideration

of those statutory sentencing factors set forth in R.C. 2929.11 and 2929.12. Id.

       {¶17} Revised Code 2929.11 provides that sentences for a felony shall be

guided by the overriding purposes of felony sentencing: “to protect the public from

future crime by the offender and others and to punish the offender.” R.C.

2929.11(A). In order to comply with those purposes and principles, R.C. 2929.12

instructs a trial court to consider various factors set forth in the statute relating to

the seriousness of the conduct and to the likelihood of the offender’s recidivism.

R.C. 2929.12(A) through (D). In addition, a trial court may consider any other

factors that are relevant to achieving the purposes and principles of sentencing. R.C.

2929.12(E).

                               Argument and Analysis

       {¶18} In this case, Watkins pled guilty to Attempted Felonious Assault, a

felony of the third degree. Pursuant to R.C. 2929.14(A)(3)(b), the penalty for a third


                                          -9-
Case No. 8-18-21


degree felony such as the one in this case is nine, twelve, eighteen, twenty-four,

thirty, or thirty-six months. Here, the trial court sentenced Watkins to a 30-month

prison term, which was within the statutory range.

         {¶19} In fashioning its sentence, the trial court indicated that it had

considered the requisite sentencing statutes, including the seriousness and

recidivism factors. The trial court also considered the PSI, which detailed multiple

prior assault convictions and prior delinquency adjudications. The trial court also

considered the impact on the victim, who was unable to work for eight weeks as a

result of the incident, and who suffered serious physical, psychological, and

economic harm as a result of the unprovoked attack by Watkins. The trial court was

concerned with the fact that Watkins did not know the victim and appeared entirely

without motive. In addition, the trial court was concerned with the fact that this

happened just days after Watkins had been charged with violating a protection order.

         {¶20} The trial court clearly made findings to support its sentence even

though it was not required to do so. All of these findings are supported by the record

and the sentence is well within the statutory range. Therefore, Watkins second

assignment of error is not well-taken, and it is overruled.1



1
  In portions of Watkins’ brief, he seems to challenge the State’s ability to actually prove that he caused the
victim serious physical harm, though he did not set this out as an assignment of error. First, he pled guilty to
attempting to cause the victim serious physical harm. Second, by pleading guilty he made a complete
admission of guilt, and forfeited his right to challenge the quality of the evidence. See, e.g. State v. Payton,
4th Dist. Scioto No. 14CA3628, 2015-Ohi-1796, ¶ 8. So to whatever extent he does raise this challenge, it
is not well-taken.

                                                     -10-
Case No. 8-18-21


                                     Conclusion

       {¶21} For the foregoing reasons Watkins’ assignments of error are overruled

and the judgment of the Logan County Common Pleas Court is affirmed.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J. concurs.

/jlr



ZIMMERMAN, J., concurring separately.

       {¶22} I fully agree with the majority’s opinion, but write separately to

reinforce the responsibility of juvenile courts to seal and expunge certain juvenile

adjudications once an offender reaches age 23.

       {¶23} In this case, the Appellant’s juvenile court adjudication for assault (at

age 8!), for unruly (at age 13), and for assault and criminal mischief (at age 15)

should never have been part of the trial court’s pre-sentence investigation. Here,

the Appellant was older than 23 at the time of his conviction. Thus, his juvenile

court adjudications should have been expunged by the juvenile court pursuant to

R.C. 2151.358(A). Had such been done here, the records request (by the pre-

sentence investigator) to the juvenile court should have revealed that the Appellant

had no record pursuant to R.C. 2151.358(F).




                                        -11-
Case No. 8-18-21


       {¶24} Unfortunately, when juvenile courts fail to fulfill the responsibility to

seal and expunge certain juvenile court records, unnecessary difficulties result.

       {¶25} I write separately to remind juvenile court judges of their legal

obligation to follow the sealing and expungement duties under R.C. 2151.356 and

R.C. 2151.358.




                                        -12-
