[Cite as State v. Smith, 2016-Ohio-7101.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :   Appellate Case No. 26963
         Plaintiff-Appellee                       :
                                                  :   Trial Court Case No. 2015-CR-2459
 v.                                               :
                                                  :   (Criminal Appeal from
 DAMON D. SMITH                                   :    Common Pleas Court)
                                                  :
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 30th day of September, 2016.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 400 Wayne Avenue, Dayton, Ohio
45410
      Attorney for Defendant-Appellant

                                            .............

FAIN, J.

        {¶ 1} Defendant-appellant Damon Smith appeals from his conviction and sentence

for Kidnapping, Felonious Assault, Aggravated Burglary and Domestic Violence. Smith
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contends that the court erred in imposing maximum sentences for each of his convictions.

In response to our request for additional briefing to address the impact of State v. Hand,

Ohio Supreme Court Slip Opinion No. 2016-Ohio-5504, Smith also argues that the trial

court erred by ordering mandatory sentences, utilizing his juvenile adjudication for

sentence enhancement. We find no error in the imposition of maximum sentences. We

do agree that the trial court erred by imposing mandatory sentences. Accordingly, the

sentence is Reversed, and this cause is remanded for re-sentencing, consistent with this

opinion.



                 I. Domestic Violence Leads to Felony Convictions

       {¶ 2} During the year before the incident leading to his arrest, Smith and the victim,

A.G. were in a dating relationship, and were living together. In August 2015, A.G. was

at the residence of a friend, Melissa, when Smith arrived, kicked in the locked front door,

entered the residence and attacked A.G. When Melissa saw Smith on his way toward

her residence, she warned A.G., who then hid in the bathroom and attempted to block the

door to prevent Smith from reaching her. A.G.’s attempt to block the door was

unsuccessful, and Smith hit her in the cheek with his fist and forcibly pulled A.G. out of

the bathroom, against her will. Smith threatened A.G. with a knife and struck her in the

head with an ashtray. The force knocked her down and split open her head. A.G. was

taken to the hospital, and her head injuries were treated with staples. In addition to the

head lacerations, A.G. also suffered a fractured cheekbone, a broken nose, nasal

lacerations, and a fractured tailbone. Photos depicted bruising on her jaw and arm. A.G.

stated that after the incident she wrote numerous letters to Smith, because she loved him
                                                                                             -3-


and wanted him to get help.

       {¶ 3} Smith testified in his own defense, stating that on the day of the incident he

was delivering drugs to her, at her request. He testified that she paid him $40 for the

drugs, and after he left the residence he noticed that $20 of the money was counterfeit.

He testified that after he tried to kick in the front door, Melissa let him back into the house,

and he confronted A.G. about the counterfeit $20 bill, insisting that she pay him the full

amount or return the drugs. Smith testified that A.G. threw the ashtray at him and

threatened to stab him with a knife. Smith testified that when A.G. lunged at him with the

knife, he grabbed her arm, and clipped her to the ground by tripping her with his foot.

Smith testified that as A.G. fell to the floor, she hit her head on the table. Smith admitted

that he had hit A.G. in the face with his fist on a different occasion, but he testified that he

did not hit her during the incident at Melissa’s residence. A.G. denied that she used any

drugs, other than marijuana, denied that she bought drugs from Smith or paid him with

counterfeit bills.



                              II. The Course of Proceedings

       {¶ 4} Smith was indicted on six felonies:           one count of Felonious Assault

(Physical Harm), a felony of the second degree, in violation of R.C. 2903.11(A)(1); one

count of Felonious Assault (Deadly Weapon), a felony of the second degree, in violation

of R.C. 2903.11(A)(2); one count of Kidnapping (Substantial Risk of Serious Physical

Harm)(Restrain), a felony of the first degree, in violation of R.C. 2905.01(B)(2); one count

of Aggravated Burglary (Physical Harm), a felony of the first degree, in violation of R.C.

2911.11(A)(1); one count of Aggravated Burglary (Deadly Weapon), a felony of the first
                                                                                        -4-


degree, in violation of R.C. 2911.11(A)(2); and one count of Domestic Violence, a felony

of the fourth degree, in violation of R.C. 2919.25(A). Smith agreed to have the Domestic

Violence charge tried by the trial court, while all other charges were tried to a jury. The

trial court found Smith guilty of the Domestic Violence offense. The jury acquitted Smith

of the two charges alleging the use of a deadly weapon; Felonious Assault (Deadly

Weapon) and Aggravated Burglary (Deadly weapon). Guilty verdicts were rendered on

all remaining counts.

       {¶ 5} A pre-sentence investigation report was prepared prior to sentencing. At

sentencing, the trial court agreed to merge the offenses of Felonious Assault and

Domestic Violence, and the State elected to have Smith sentenced on the Felonious

Assault charge. The trial court stated that the convictions for Kidnapping, Felonious

Assault, and Aggravated Burglary all required mandatory prison terms. Before

announcing sentence, the trial court provided the following statement, identifying the

factors it considered:

              Defendant’s known criminal career began at the age 12 when he

       committed an F2 burglary an offense that makes his sentencing here

       mandatory for any F1 or F2. Importantly, the Defendant has a lengthy

       history of offenses of violence including four offenses of violence as a

       juvenile, aggravated rioting at age 18 and assault at age 19. And now

       Defendant has been found guilty by a jury of F1 kidnapping, F1 aggravated

       burglary physical harm, F2 felonious assault serious physical harm.

       Defendant has also been found guilty by this Court of F4 domestic violence.

              It is quite clear to the Court that the Defendant has sadly given to
                                                                                         -5-


      violence including gratuitous violence in this instant case against a female

      victim. Enough, as they say, is enough.         Therefore, in considering the

      purposes and the principals in sentencing set forth in the revised code

      including avoiding unnecessary burden upon government resources, the

      seriousness and recidivism factors of the code and the dictates of 2929.13

      and is otherwise set forth in the revised code, as well as the Defendant’s

      present and future ability to pay financial sanctions including any restitution,

      the Court is going to order as follows: * * *

Transcript at 317-318.

      {¶ 6} The trial court sentenced Smith to a mandatory prison term of 11 years for

the Kidnapping conviction, a mandatory prison term of 8 years on the merged convictions

for Felonious Assault and Domestic Violence, and a mandatory prison term of 11 years

for the Aggravated Burglary conviction. The trial court ordered the prison terms to be

served concurrently. From his convictions and sentence, Smith appeals.



                                 III. Standard of Review

      {¶ 7} The standard of review for felony sentencing issues is set forth in R.C.

2953.08(G)(2), which provides:

      (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
                                                                                          -6-


       the matter to the sentencing court for 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.

       {¶ 8} In State v. Marcum, Oho Supreme Court Slip Opinion No. 2016-Ohio-1002,

the Supreme Court of Ohio held that “an 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.”

Id. ¶ 23. “Therefore, the question is not whether the trial court had clear and convincing

evidence to support its findings, but rather, whether we clearly and convincingly find that

the record fails to support the trial court's findings.” State v. Withrow, 2d Dist. Clark No.

2015-CA-24, 2016-Ohio-2884, ¶ 38, citing State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d

1069, ¶ 31 (2d Dist.); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).



                IV. No Error Is Portrayed in the Record Regarding the

                              Imposition of Maximum Sentences

       {¶ 9} For his sole assignment of error, Smith asserts:

              THE COURT ERRED WHEN IT FAILED TO MAKE FINDINGS OR
                                                                                            -7-


       TO ENGAGE IN THE STATUTORY ANALYSIS WHEN IT IMPOSED THE

       MAXIMUM SENTENCE FOR THE HIGHEST DEGREED OFFENSE

       WHEN THERE WERE CONVICTIONS FOR MORE THAN TWO

       OFFENSES THAT AROSE OUT OF A SINGLE INCIDENT

       {¶ 10} Smith contends that his sentence is contrary to law, because the maximum

prison term was not required. R.C. 2953.08(A)(1) provides that a defendant who is

convicted may appeal his sentence on the grounds that “the maximum prison term was

not required for the offense pursuant to Chapter 2925 or any other provision of the

Revised Code” and “(b) The sentence was imposed for two or more offenses arising out

of a single incident, and the court imposed the maximum prison term for the offense of

the highest degree.”

       {¶ 11} We have held that “[t]he trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum or more than minimum sentences.

However, the trial court must comply with all applicable rules and statutes including R.C.

2929.11 and R.C. 2929.12.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d

Dist.) (internal citation omitted). Therefore, the trial court may order a defendant to serve

a maximum sentence after consideration of the factors identified in R.C. 2929.12, which

include facts relating to the likelihood of the offender’s recidivism, and other facts that are

relevant to achieving the purposes and principles of sentencing. R.C. 2929.11 provides:

              The overriding purposes of felony sentencing 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
                                                                                      -8-


      purposes without imposing an unnecessary burden on state or local

      government resources. To achieve those purposes, the sentencing 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.

      {¶ 12} In the case before us, the trial court properly identified the factors

considered for ordering the maximum sentence, reciting Smith’s extensive criminal

history, which supports the likelihood of recidivism, the need for incapacitating Smith,

deterring Smith from future crime, and the need for rehabilitation. Smith has not

established that his sentence is contrary to law or clearly and convincingly unsupported

by the record. Smith’s sole assignment of error is overruled.



             V. The Imposition of Mandatory Sentences is Plain Error

      {¶ 13} Although not raised as an assignment of error, we invited the parties to

submit supplemental briefs to address the application of State v. Hand, Ohio Supreme

Court Slip Opinion No. 2016-Ohio-5504, which holds that the juvenile adjudications

cannot be used to enhance either a sentence beyond the statutory maximum or

mandatory minimum. Id. at paragraph 2 of the syllabus. The State concedes that the trial

court did use Smith’s juvenile adjudications as grounds to impose mandatory sentences,

which is now prohibited by the holding of State v. Hand, supra. Because the imposition

of mandatory sentences in the case before us is an obvious deviation from the legal rule

established by the Supreme Court of Ohio in State v. Hand, supra, and the application of

Hand would affect the outcome, we conclude that the imposition of mandatory sentences
                                                                                       -9-

is plain error. Crim.R. 52(B); State v. Willis, 12th Dist. Butler No. CA2012-08-155, 2013-

Ohio-2391, ¶ 35, citing State v. Blanda, 12th Dist. Butler No. CA2010-03-050, 2011-Ohio-

411, ¶ 20; State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E. 2d 1240 (2002).

       {¶ 14} Since the trial court’s error in deeming the sentences mandatory may have

affected its exercise of discretion, this cause will be remanded for re-sentencing.



                                     VI. Conclusion

       {¶ 15} Smith’s sole assignment of error having been overruled, and plain error

having been found in the imposition of mandatory sentences, the sentence is Reversed,

and this cause is Remanded for re-sentencing, consistent with this opinion.


                                     .............

DONOVAN, P.J., and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Christopher C. Green
Hon. Steven K. Dankof
