[Cite as State v. Clark, 2018-Ohio-3723.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                      STATE OF OHIO, CITY OF YOUNGSTOWN,

                                             Plaintiff-Appellee,

                                                     v.

                                             PHILLIP CLARK,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 16 MA 0189.


                                 Criminal Appeal from the
                    Youngstown Municipal Court of Mahoning County, Ohio
                                Case No. 16 TRD 01647Y.

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.


Atty. Ralph Rivera, Office of the Mahoning County Prosecutor, 21 W. Boardman Street,
6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and

Atty. Cynthia Henry, P.O. Box 4332, Youngstown, Ohio 44515, for Defendant-Appellant.

                                                   Dated:
                                             September 10, 2018
                                                                                      –2–



Donofrio, J.

       {¶1}    Defendant-appellant, Phillip Clark, appeals from a Youngstown Municipal
Court judgment sentencing him to 180 days in jail for driving under suspension and
failure to control, following his no contest plea.
       {¶2}    On February 12, 2013, a police officer initiated a traffic stop of appellant
after noting a traffic violation. Appellant did not stop and in fact fled from the officer.
During the pursuit appellant lost control of his vehicle, running over a curb and into a
field. At the time of the pursuit, appellant’s driver’s license was suspended.
       {¶3}    The officer arrested appellant. Appellant was charged with driving under
suspension, a first-degree misdemeanor in violation of R.C. 4510.11; failure to comply,
a first-degree misdemeanor in violation of R.C. 2921.33; failure to control, a minor
misdemeanor in violation of R.C. 4511.202(A); and a stop sign violation, a minor
misdemeanor in violation of R.C. 4511.43.
       {¶4}    Pursuant to a plea agreement, plaintiff-appellee, the State of Ohio,
dismissed the two minor misdemeanors. Appellant then entered a no-contest plea to
failure to comply and driving under suspension. The trial court found appellant guilty.
       {¶5}    The trial court subsequently sentenced appellant to 180 days in jail for
failure to comply and fined him $150. For driving under suspension the court fined
appellant an additional $150. The court also placed appellant on two years of intensive
probation supervision and suspended his driver’s license for one year.
       {¶6}    Appellant filed a timely notice of appeal on December 5, 2016. He also
requested a stay of execution of his sentence pending this appeal, which the trial court
granted. Appellant now raises three assignments of error.
       {¶7}    Appellant’s first assignment of error states:

               THE DEFENDANT/APPELLANT’S SENTENCES ARE CONTRARY
       TO LAW AS THEY DO NOT SERVE THE OVERRIDING PURPOSES
       AND PRINCIPLES OF SENTENCING AS EXPRESSED IN ORC 2929.21.

       {¶8}    Appellant contends that his sentence is not consistent with sentences
imposed for similar offenses committed by similar offenders. As an example of a similar


Case No. 16 MA 0189
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offense, with a similar offender, appellant offers State v. Tribble, 7th Dist. No. 13-MA-50,
2014-Ohio-4164. In Tribble, the defendant was charged with failure to signal, a minor
misdemeanor, driving under suspension, a first-degree misdemeanor, and possession
of drug paraphernalia, a fourth-degree misdemeanor. Id. at ¶ 3. The state agreed to
dismiss the signal violation and amended the drug offense to a disorderly conduct
charge, still remaining a fourth-degree misdemeanor. Id. at ¶ 4. The court sentenced
him to 150 days in jail, a $500 fine, and three years of intensive probation supervision.
       {¶9}   An appellate court reviews a trial court’s sentence on a misdemeanor
violation under an abuse of discretion standard.        R.C. 2929.22(A).     An abuse of
discretion is more than a mere error in law or judgement; it implies that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶10} Appellant relies on R.C. 2929.21(B), which provides in part that a
misdemeanor sentence

       shall be reasonably calculated to achieve the two overriding purposes of
       misdemeanor sentencing [to protect the public from future crime by the
       offender and others and to punish the offender] * * *, commensurate with
       and not demeaning to the seriousness of the offender's conduct and its
       impact upon the victim, and consistent with sentences imposed for similar
       offenses committed by similar offenders.

       {¶11} Here, the trial court sentenced appellant to 180 days in jail for failure to
comply, which is a first-degree misdemeanor. The maximum sentence for a first-degree
misdemeanor is 180 days.        R.C. 2929.24(A)(1).     Thus, appellant’s sentence was
authorized by statute.
       {¶12} Appellant cites a single example of an offender who had somewhat similar
charges to him and received a lesser sentence. But Tribble is not comparable to the
case at bar because the defendant in that case was convicted of a first-degree
misdemeanor and a fourth-degree misdemeanor. See Tribble, 7th Dist. No. 13-MA-50.
Appellant, however, was convicted of two first-degree misdemeanors.




Case No. 16 MA 0189
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       {¶13} Moreover, an examination of the record demonstrates that the trial court
considered R.C. 2929.21(B). The court was clearly concerned with appellant’s
recidivism, telling him “You know that your license is suspended. But that doesn’t stop
you from driving. You’ve got two prior convictions for the same thing. Those didn’t get
your attention.” (Tr. 4). The court expressed concern with the impact of appellant’s
behavior on the public, saying that his actions were “endangering everybody else that is
validly on the roadway not doing a darn thing wrong.” (Tr. 4). The court additionally
considered appellant’s family situation but decided that “All of that money [reinstatement
fees] could have gone to food for your children, clothing for your children. But, no, your
main concern is driving. So, no, I will not show you mercy because you’ve graduated to
a whole new level.” (Tr. 9).       When the court’s conversation follows closely the
sentencing statute and examines the relevant factors, it acts in conformity with
subsection R. C. 2929(B). City of Youngstown v. Glass, 7th Dist. No. 04 MA-155, 2005-
Ohio-2785, ¶ 18.
       {¶14} There is no indication that the trial court abused its discretion in
sentencing appellant. The court demonstrated compliance with R.C. 2929.21(B) and its
sentence was within the statutory range.
       {¶15} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
       {¶16} Appellant’s second assignment of error states:

              THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN
       THE TRIAL COURT FAILED TO ALLOW THE DEFENDANT/APPELLANT
       AN INDEPENDENT OPPORTUNITY TO SPEAK BEFORE IMPOSING
       SENTENCE.

       {¶17} Appellant argues the trial court did not provide him with his right to
allocution. Pursuant to Crim.R. 32(A)(1), the trial court shall

       [a]fford counsel an opportunity to speak on behalf of the defendant and
       address the defendant personally and ask if he or she wishes to make a
       statement in his or her own behalf or present any information in mitigation
       of punishment.


Case No. 16 MA 0189
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       {¶18} Appellant argues that the trial court did not ask him if he had anything to
say prior to sentencing, nor did he receive an opportunity to speak.
       {¶19} If the trial court does not afford the defendant’s right to allocution, he or
she is due resentencing, unless the error was harmless or invited. State v. Robenolt, 7th
Dist. No. 04-MA-105, 2005-Ohio-6450, ¶ 14, quoting State v. Campbell, 90 Ohio St. 3d
320, 738 N.E. 2d 1178 (2000), paragraph two of the syllabus. Appellant cites various
examples of acceptable means of satisfying the right to allocution. In his examples,
appellant references this court’s recognition of “[A]nything further you wish to say before
I impose a sentence here?” as satisfying. Tribble, 7th Dist. No. 13-MA-50, at ¶ 11, citing
Crable, 7th Dist. No. 04-BE-17, at ¶ 20. In addition, the fact that the defendant and his
counsel presented mitigating factors is evidence that the defendant received the right to
allocution. See State v. McGilton, 7th Dist. No. 07-BE-9, 2008-Ohio-1185, ¶ 32-33.
       {¶20} Here, the record reflects that the trial court provided appellant with his
right to allocution. The trial court asked appellant, “Anything else you want to say before
I sentence you?” (Tr. 6). To which appellant’s counsel replied “Yes, your Honor.” (Tr.
6). Following this exchange counsel presented some mitigating factors, including that
appellant had paid off all his outstanding fines and costs and “kept his nose to the
grindstone.”   (Tr. 7).   Appellant himself went on to ask the court “Please give me
another chance” and asked the court to consider his children, exclaiming, “I got three
little girls I be taking care of, like, and I try my best. Like, I ain’t never been in trouble
before, like, and I understand I did something[.]” (Tr. 7).
       {¶21} The above question by the court and response by appellant and his
counsel demonstrated that the court afforded appellant his right of allocution in
accordance with Crim.R. 32(A)(1).
       {¶22} Accordingly, appellant’s second assignment of error is without merit and is
overruled.
       {¶23} Appellant’s third assignment of error states:

               THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED
       APPELLANT DUE PROCESS OF LAW WHEN IT IMPOSED A JAIL
       SENTENCE           WITHOUT      ALLOWING         THE      APPELLANT         AN
       INDEPENDENT OPPORTUNITY TO SPEAK AND SENTENCED THE


Case No. 16 MA 0189
                                                                                         –6–


       APPELLANT       TO    A   TERM     INCONSISTENT         WITH     SENTENCES
       IMPOSED FOR SIMILAR OFFENSES COMMITTED BY SIMILAR
       OFFENDERS.

       {¶24} Appellant argues that due to the inconsistency of his sentence with those
of similar offenders who committed similar crimes and the violation of his right of
allocution the trial court abused its discretion in sentencing him.
       {¶25} As addressed above, the court complied with the misdemeanor
sentencing statutes and gave appellant the opportunity to speak on his own behalf at
sentencing.
       {¶26} Because assignments of error one and two are meritless, there was no
abuse of discretion regarding sentencing.
       {¶27} Moreover, appellant did not raise a proportionality argument at his
sentencing hearing. When an appellant does not raise the proportionality argument at
trial a reviewing court examines the assignment under a plain error analysis. State v.
Sargianopolous, 7th Dist. No. 12-MA-141, 2013-Ohio-5772, ¶ 6, citing State v.
Lazazzera, 7th Dist. No. 12 MA 170, 2013-Ohio-2547, ¶ 34. Pursuant to Crim.R. 52(B),
“[p]lain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court.” Plain error is one in which but for the error, the
outcome of the trial would have been different. State v. Long, 53 Ohio St.2d 91, 97, 372
N.E.2d 804 (1978).
       {¶28} “Proportionality in sentencing does not mean that sentences for similar
crimes must be identical. It means they must be consistent, forming a rational and
predictable pattern.” Sargianopolous, 7th Dist. No. 12-MA-141 at ¶ 11, citing, State v.
Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341.
       {¶29} As previously stated, appellant cited a single example of a defendant who
was sentenced less severely than him in order to allege a disproportionate sentence.
Again, the charges in that case are not the same as the charges in appellant’s case. He
has not demonstrated plain error.
       {¶30} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
       {¶31} For the reasons stated above, the trial court’s judgment is hereby affirmed.


Case No. 16 MA 0189
                       –7–




Waite, J., concurs
Robb, P. J., concurs




Case No. 16 MA 0189
[Cite as State v. Clark, 2018-Ohio-3723.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Youngstown Municipal Court of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                            NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
