[Cite as State v. Davis, 2014-Ohio-4212.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100849




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                            JAMES DAVIS
                                                      DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED IN PART, MODIFIED IN PART,
                                REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-574488-A

        BEFORE: Rocco, J., Celebrezze, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: September 25, 2014
                               -i-
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: Paul Kuzmins
      Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Erin Stone
      Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant James Davis appeals from the sentence imposed on him

after he entered guilty pleas to one count of attempted aggravated arson with a notice of

prior conviction and to three counts of criminal child enticement.

       {¶2} Davis presents three assignments of error. He claims that: (1) the trial

court’s justification for imposing a maximum prison term for his attempted aggravated

arson conviction has no basis in fact; (2) the use of a notice of prior conviction to enhance

his sentence was unconstitutional because it refers to a juvenile adjudication; and, (3) the

trial court lacked authority to order that he have no contact with the victims.

       {¶3} This court cannot agree with Davis’s first two claims. However, this court

has previously determined that the claim Davis makes in his third assignment of error has

merit. Therefore, Davis’s sentence is affirmed in part and modified in part, and this case

is remanded to the trial court to issue a corrected journal entry of sentence.

       {¶4} Davis was indicted in this case on thirteen counts. He was charged with nine

counts of aggravated arson, one count of unlawful possession of a dangerous ordnance, to

wit: a Molotov cocktail, and three counts of criminal child enticement. Each of Counts 1

through 9 contained a notice of prior conviction for Davis’s “convict[ion for] Aggravated

Arson * * * in the Mahoning County Court of Common Pleas Juvenile Division, [Case

No.] 2008-JA-00365 * * * .” Davis pleaded not guilty to the charges.
       {¶5} After a period of discovery, Davis agreed to accept the state’s plea offer. As

outlined by the prosecutor, the state would amend Count 1 to add the attempt statute and

all nine victims and would dimiss the remaining counts in exchange for Davis’s guilty

plea to the amended Count 1 and to the three counts of criminal child enticement. The

prosecutor specified that the notice of prior conviction would remain in the amended

Count 1.

       {¶6} The trial court conducted a thorough Crim.R. 11 hearing. Prior to asking

Davis for his guilty pleas, the trial court requested Davis to acknowledge that the notice

of prior conviction in the amended Count 1 was for his 2008 “conviction” in the

Mahoning County juvenile court. Defense counsel stipulated to that adjudication, but

“objected for the record to the terminology it’s in. It’s inappropriate. It’s incorrect.

It’s not necessary.”

       {¶7} After accepting Davis’s guilty pleas and dismissing the remaining counts, the

trial court found Davis guilty of the four charges. The trial court then referred Davis for

both a presentence investigation report and a psychiatric assessment. When the case was

called for sentencing, the trial court noted that it had received both reports.

       {¶8} The prosecutor outlined the facts underlying Davis’s convictions by

explaining that Davis instructed three juveniles between the ages of 8 and 10 on “how to

make a Molotov cocktail, [Davis] walked to a vacant house, gave a lighter to the

8-year-old, who lit the Molotov cocktail that the 10-year-old brother was holding, and
then [Davis] told the 10-year-old to throw it on the back porch.”1 The prosecutor stated

that the fire caused “extreme damage” to the vacant house and also damaged the house

next door, in which six people were present at the time.

       {¶9} In speaking on his client’s behalf, Davis’s counsel conceded that Davis’s

actions had “the potential for harm here not only to those other kids, but to the people in

the neighborhood * * * .” Defense counsel, however, directed the trial court’s attention

to the psychological assessment, and noted that the doctor who examined Davis indicated

Davis met “the diagnostic criteria for post traumatic stress disorder,” which led him to

“get angry and become[ ] involved in physical altercations.”

       {¶10} In pronouncing sentence, the trial court noted the “purposes and principles

of felony sentencing,” then looked at Davis’s “criminal history,” beginning in 2008 with a

“delinquency adjudication for aggravated arson,” 2010 convictions for aggravated

menacing and assault, failures to comply with terms of probation, a 2011 conviction for

obstructing official business, and a conviction for criminal mischief, with another failure

to comply with terms of probation. The court also noted that the fire created by throwing

a Molotov cocktail into a vacant house could have spread even further than it did, thus

injuring or possibly killing others.

       {¶11} Based upon the serious nature of the offenses, the trial court imposed a term

of eight years on Count 1; the sentence on Count 1 was to be served concurrently with


       1 The quote is taken verbatim from the transcript of Davis’s sentencing
hearing; the mistakes in punctuation are the court reporter’s.
concurrent terms of six months for each of the criminal child enticement counts. In its

journal entry, the trial court also included a “notice” to the Ohio Department of

Rehabilitation and Correction that Davis should have “no contact with victim(s).”

       {¶12} Davis appeals from his sentence with three assignments of error.

      I. The imposition of the maximum term of incarceration is clearly and
convincingly contrary to law where the trial court relied on aggravating factors not
supported in the record.

       II. R.C. 2929.13(F)(6) and R.C. 2901.08 are unconstitutional as it [sic] is applied
to the Appellant where the statute [sic] permits a juvenile adjudication to enhance the
penalty for the Appellant’s underlying adult convictions.

       III. The trial court erred in ordering the Appellant to have no contact with the

victim [sic] during Appellant’s incarceration.

       {¶13} Davis argues in his first assignment of error that his sentence must be

reversed because the trial court’s three primary underlying justifications for imposing

the maximum term on Count 1, i.e., the economic harm suffered by the victims, Davis’s

criminal history, and the possibility of physical harm to persons in the neighborhood, are

unsupported in the record. This court finds Davis’s argument unpersuasive.

       {¶14} Pursuant to R.C. 2953.08(G)(2), an appellate court may vacate the sentence

and remand the matter to the sentencing court for resentencing only if the appellate court

“clearly and convincingly finds” that the sentence is contrary to law. A sentence is not

clearly and convincingly contrary to law where the trial court considered the purposes and

principles of R.C. 2929.11 as well as the factors listed in R.C. 2929.12, properly applied
postrelease control, and imposed a sentence within the permissible statutory range. State

v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.

       {¶15} A sentencing court “has discretion to determine the most effective way to

comply with the purposes and principles of sentencing.” R.C. 2929.12(A). Moreover, a

sentencing court has “full discretion to impose a prison sentence within the statutory

range.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph

three of the syllabus. Therefore, “the trial court is not obligated, in the exercise of its

discretion, to give any particular weight or consideration to any sentencing factor.” State

v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, 880 N.E.2d 515, ¶34 (11th Dist.).

       {¶16} In this case, the record indicates the trial court gave due consideration to the

germane statutory factors. The trial court was aware of the surrounding circumstances of

the incident and of Davis’s mental problems.

       {¶17} This court declines to second-guess the trial court’s assessment that the

prosecutor’s report of considerable damage to the unoccupied house and additional

damage to the occupied house constituted “serious” economic harm. Similarly, the trial

court’s review of Davis’s criminal history and his tendency to commit crimes that caused

physical harm provided a reasonable basis to assume Davis required a stern punishment

for these latest offenses.2 Finally, defense counsel conceded that demonstrating how to


      2 In this context, this court notes that a month prior to Davis’s juvenile
adjudication, Davis’s older brother Michael set a house fire that resulted in
Michael’s convictions on six counts of aggravated murder and 19 counts of
aggravated arson.     State v. Davis, 7th Dist. Mahoning No. 08 MA 236,
2011-Ohio-292. Michael’s accelerant of choice apparently was the Molotov cocktail.
create a Molotov cocktail and then encouraging others to throw it into a vacant house

were actions that had the potential to jeopardize lives in the neighborhood.

       {¶18} The trial court, therefore, did not abuse its considerable discretion in

sentencing Davis to the maximum term for his conviction for attempted aggravated arson.

 Davis’s first assignment of error is overruled.

       {¶19} In his second assignment of error, Davis argues that R.C. 2901.08(A) is

unconstitutional. 3 Davis, however, never raised the issue in the trial court, thus, this

court declines to address it in this appeal. State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d

277 (1986), at the syllabus.

       {¶20} Davis argues in his third assignment of error that the trial court lacked the

authority to order that he have “no contact” with the victims in the journal entry of

sentence. This issue currently is pending before the Ohio Supreme Court in State v.

Anderson, 2014-Ohio-2725. Until the Ohio Supreme Court decides the issue, this court

will continue to follow its own precedent as set forth in State v. Rogers, 8th Dist.


 Id. at ¶ 92. The detective who investigated those crimes testified that Michael’s
brothers “Scott and James, had been suspects in a previous arson in the
neighborhood.” Id. at ¶ 23. This information came from a neighbor, Enrique
Ayala, who testified that three weeks prior to the arson in question, the Davis
brothers “set a fire on his front porch.” Id. at ¶ 55. At the sentencing hearing,
defense counsel stated that the report from the court psychiatric clinic opined that
Davis suffered from various psychological disorders “associated with witnessing a
house fire that was deliberately started by his older brother and which killed six of
his neighbors.” One wonders whether this assessment would have been affected
had the clinic been aware of all of the circumstances of Michael Davis’s case.
       3 Butsee State v. Parker, 8th Dist. Cuyahoga No. 97841, 2012-Ohio-4741,
discretionary appeal not allowed, State v. Parker, 134 Ohio St.3d 1471,
2013-Ohio-553, 983 N.E.2d 370.
Cuyahoga Nos. 97093 and 97094, 2012-Ohio-2496, ¶ 34, and State v. Holly, 8th Dist.

Cuyahoga No. 95454, 2011-Ohio-2284, ¶ 21. Because this court has determined that the

trial court cannot issue a “no contact” order when imposing a prison sentence, Davis’s

third assignment of error is sustained. Id. at ¶ 22-23.

       {¶21} Consistent with authority bestowed by R.C. 2953.08(G), this court vacates

that portion of Davis’s sentence. Id. The remainder of Davis’s sentence is affirmed in its

entirety.

       {¶22} Davis’s sentence is affirmed in part and modified in part, and this case

remanded for the trial court to correct the sentencing journal entry to eliminate the

indefinite “no contact” order.

       It is ordered that appellee and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

correction and for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_____________________________________
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
