[Cite as State v. Hall, 2017-Ohio-592.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                          Hon. William B. Hoffman, J.
                                                    Hon. Craig R. Baldwin, J.
-vs-
                                                    Case No. 15CA112
EDWARD A. HALL, JR.

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Richland County Court of
                                                Common Pleas, Case No. 2015CR0535


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          February 13, 2017



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

BAMBI COUCH PAGE                                JEFFREY P. UHRICH
Prosecuting Attorney                            Law Office of Jeffrey P. Uhrich
Richland County, Ohio                           P.O. Box 1977
                                                Westerville, Ohio 43086
By: DANIEL M. ROGERS
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA112                                                         2

Hoffman, J.

       {¶1}   Defendant-appellant Edward Hall appeals his sentence entered by the

Richland County Court of Common Pleas, on one count of felonious assault, two counts

of public indecency with a minor victim, one count of public indecency with an adult victim,

and one count of possession of heroin, after the trial court accepted his guilty pleas.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On July 10, 2015, the Richland County Grand Jury indicted Appellant on

one count of felonious assault, in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony

of the second degree; two counts importuning, in violation of R.C. 2907.07(A) and (F)(2),

felonies of the third degree; one count of public indecency, in violation of R.C.

2907.09(A)(1) and (C)(2), a misdemeanor of the fourth degree; one count of aggravated

menacing, in violation of R.C. 2903.21(A) and (B), a misdemeanor of the first degree; one

count of resisting arrest, in violation R.C. 2921.33(A) and (D), a misdemeanor of the

second degree; and, one count of possession of heroin, in violation of R.C. 2925.11(A)

and (C)(6)(a), a felony of the fifth degree. Appellant entered a plea of not guilty to the

Indictment at his arraignment on July 21, 2015.

       {¶3}   On August 14, 2015, Appellant appeared before the trial court, withdrew his

former pleas of not guilty, and entered pleas of guilty to one count of felonious assault, a

felony of the second degree; two counts of public indecency with a minor victim,

misdemeanors of the second degree; one count of public indecency with an adult victim,

a misdemeanor of the fourth degree; and one count of possession of heroin, a felony of

the fifth degree. The state amended the two counts of importuning to two counts of public
Richland County, Case No. 15CA112                                                          3


indecency with a minor victim, and dismissed the aggravated menacing and resisting

arrest counts. The trial court accepted Appellant’s pleas, found the pleas to be knowingly

and voluntarily made, and ordered a presentence investigation.

       {¶4}   The trial court conducted a sentencing hearing on October 7, 2015. The

trial court noted, on the record, it had reviewed the presentence investigation report, the

SAQ risk assessment, and two victim impact statements. The trial court also indicated it

had considered the sentencing principles under R.C. 2929.11, as well as the sentencing

factors enumerated in R.C. 2929.12.        After hearing from the parties, the trial court

sentenced Appellant to eight years in prison on the felonious assault count, ninety days

in jail on the two counts of public indecency with a minor victim, thirty days in jail on the

public indecency with an adult victim, and six months in jail on the possession of heroin

count. The trial court ordered the felonious assault and possession of heroin counts be

served consecutively to each other and concurrently with the remaining counts, for an

aggregate term of incarceration of eight and a half years. The trial court also imposed

three years of mandatory post-release control, suspended Appellant’s driver’s license for

five years, and ordered Appellant to pay $5,590.21 in restitution.

       {¶5}   The trial court filed a sentencing entry on October 8, 2015. On December

23, 2015, Appellant filed a pro se Notice of Appeal and motion for leave to file delayed

appeal. The state filed a memorandum in opposition to Appellant’s motion as well as a

motion to dismiss. On January 11, 2016, this Court granted Appellant’s motion for leave

to file a delayed appeal, and overruled the state’s motion to dismiss.

       {¶6}   It is from the trial court’s October 8, 2015 Sentencing Entry Appellant

appeals, raising the following assignments of error:
Richland County, Case No. 15CA112                                                          4




              I. THE TRIAL COURT ERRED BY IMPOSING A MAXIMUM

       SENTENCE        WITHOUT        PROVIDING        A    SUFFICIENT       BASES

       SUPPORTED BY THE RECORD.

              II. THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY

       EXPLAIN, DURING THE CHANGE OF PLEA HEARING, THE POTENTIAL

       MAXIMUM       PENALTIES       FOR     THE     CHARGES       UPON      WHICH

       DEFENDANT ENTERED GUILTY PLEAS.



                                                 I

       {¶7}   In his first assignment of error, Appellant contends the trial court erred in

imposing a maximum sentence without providing a sufficient basis supported by the

record. We disagree.

       {¶8}   R.C. 2953.08(G)(2) sets forth the standard of review for all felony

sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1. When hearing

an appeal of a trial court's felony sentencing decision, “[t]he 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.” R.C.

2953.08(G)(2)

       {¶9}   Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase,

reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the

matter to the sentencing court for resentencing” if the court finds by clear and convincing
Richland County, Case No. 15CA112                                                           5


evidence “(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b)

[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b). “An appellate

court will not find a sentence clearly and convincingly contrary to law where the trial court

considers the principles and purposes of R.C. 2929.11, as well as the factors listed in

R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within

the permissible statutory range.” State v. Ahlers, 12th Dist. Butler No. CA2015–06–100,

2016–Ohio–2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. CA2014–02–016,

2014–Ohio–5191, ¶ 6.

       {¶10} Under R.C. 2929.11(A), 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

purposes without imposing an unnecessary burden on state or local government

resources. To achieve these 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. R.C. 2929.11(A).

       {¶11} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.
Richland County, Case No. 15CA112                                                           6


          {¶12} Among the various factors that the trial court must consider and balance

under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the

victim as a result of the offense; (2) whether the offender has a history of criminal

convictions; (3) whether the offender has not responded favorably to sanctions previously

imposed by criminal convictions; and (4) whether the offender shows genuine remorse

for the offense. R.C. 2929.12.

          {¶13} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony

sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109

Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.

          {¶14} At the sentencing hearing, the trial court indicated it had considered the

presentence investigation, two victim impact statements, and the SAQ risk assessment.

The trial court noted the SAQ risk assessment showed Appellant’s highest risk was for

alcohol, “followed very closely by drugs, and then followed by violence and anti-social.”

October 7, 2015 Sentencing Hearing at 4. The trial court stated it had also, “of course,

considered the sentencing principles under 2929.11 and the factors…under 2929.12,

both more serious, less serious[,] recidivism, more likely recidivism, less likely.” Id. at 5.

The trial court provided Appellant with an opportunity to speak. The trial court also heard

from one of the victims, and the victim witness advocate, who read a letter from another

victim.

          {¶15} The trial court commented Appellant’s behavior was “about as bad as it

gets.” Id. at 12. The trial court added, “Because there were multiple offenses committed

as part of a course of criminal conduct, the harm caused was great and unusual that no

single prison term would adequately reflect the seriousness of the conduct. And the fact
Richland County, Case No. 15CA112                                                            7


that this isn’t your first time. You’ve got a lengthy criminal history. So it’s necessary to

protect the public from future crimes.” Id. at 13.

       {¶16} The sentence imposed is within the range provided for felonies of the

second degree. We find the trial court properly considered the statutory factors and

complied with all applicable rules and laws. We further find the sentence is not clearly

and convincingly contrary to law, and the trial court did not err in sentencing Appellant.

       {¶17} Appellant’s first assignment of error is overruled.

                                                 II

       {¶18} In his second assignment of error, Appellant maintains the trial court erred

in failing to adequately explain the potential maximum penalties for the charges upon

which he entered his guilty pleas.

       {¶19} Crim. R. 11(C)(2)(a) provides:



              (2) In felony cases the court may refuse to accept a plea of guilty or

       a plea of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the

       following:

              (a) Determining that the defendant is making the plea voluntarily, with

       understanding of the nature of the charges and of the maximum penalty

       involved, and if applicable, that the defendant is not eligible for probation or

       for the imposition of community control sanctions at the sentencing hearing.
Richland County, Case No. 15CA112                                                           8


       {¶20} The trial court must engage in a Crim.R. 11(C) colloquy with the defendant

in order to ensure that a felony defendant's plea is knowing, voluntary and intelligent.

State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶ 25–26. During

the colloquy, the trial court is to provide specific information to the defendant, including

constitutional and nonconstitutional rights being waived. Crim.R. 11(C)(2); State v.

Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.

       {¶21} The nonconstitutional rights the defendant must be informed of are the

effect of his plea, the nature of the charges, and the maximum penalty, which includes an

advisement on post-release control if applicable.

       {¶22} During the change of plea hearing, the trial court addressed Appellant as

follows:

       {¶23} THE COURT: First count is Felonious Assault, that’s a Second Degree

Felony. It has a presumption of prison because it’s a Second Degree Felony, * * *

       {¶24} The maximum on that Count’s 8 years in prison, the maximum fine is

$15,000, and if you do go to prison on that case you’re required to be on Post Release

Control for 3 years when you get out, and I’ll talk to you a little bit about Post Release

Control.

       {¶25} * * *

       {¶26} What it means is you go to prison, you do all your time. * * * when you do

all your time, you get out, they’re going to put you on it. It’s going to be like probation or

parole, it’s going to be rules.

       {¶27} You have to abide by those rules, it’s called Post Release Control. If you

violate the rules of Post Release Control, the Department of Rehabilitation and
Richland County, Case No. 15CA112                                                          9


Corrections will send you back to prison for half of the sentence that I gave you, that’s the

most they could give you. They can give you less if they want to, but they could give you

up to half.

       {¶28} So you understand that if you go to prison, you will be on Post Release

Control and, if you mess up on Post Release Control, they could send you back to prison

for half the time you already did, you understand that?

       {¶29} * * *

       {¶30} APPELLANT: Okay.

       {¶31} THE COURT: The other thing that’s important about Post Release Control

for you, Mr. Hall, is if you commit a new crime, a new felony or a new crime while you’re

on Post Release Control, the judge who sentences you on the new crime can convert

your Post Release Control supervision time * * * into prison time and run it consecutive to

the new crime.

       {¶32} So you can get like a double sentence, basically. * * *

       {¶33} Do you understand if you commit a new crime that the Post Release Control

supervision time could be turned into prison time; do you understand that?

       {¶34} APPELLANT: Yeah.

       {¶35} * * *

       {¶36} THE COURT:        * * * You would have Public Indecency in Count 2 as

amended, it’s a misdemeanor of the second degree.

       {¶37} For misdemeanors you can’t go to prison but you can go to jail, 90 days in

jail, $750 fine for Count 2; same thing for Count 3, 90 days in jail, $750 fine are the
Richland County, Case No. 15CA112                                                      10


maximums; Count 4 is Public Indecency [w]ith [a]n Adult [V]ictim, a Fourth Degree

Misdemeanor, that’s 30 days in jail, $250 fine.

      {¶38} Finally, Count 7 is Possession of Heroin, 12 months in prison, $2,500 fine,

3 years discretionary Post Release Control * * * it really doesn’t matter because you have

the mandatory Post Release Control on Count 1, and then also there’s a driver’s license

suspension under that Possession of Heroin, Count 7, it’s 6 months to 5 years, so I could

either do 6 months or somewhere in between all the way up to 5 years.

      {¶39} Do you understand what the maximum penalties are for all these counts?

      {¶40} APPELLANT: Yes, sir.

      {¶41} Transcript of August 13, 2015 Change of Plea Hearing at 15-16, 18-22.

      {¶42} The trial court also explained concurrent and consecutive sentences to

Appellant who indicated he understood. In addition, Appellant executed an Admission of

Guilt/Judgment Entry, which provided a written explanation of the penalties. Counsel for

Appellant advised the trial court he and Appellant had reviewed the Admission of

Guilt/Judgment Entry.

      {¶43} At the time Appellant entered his guilty pleas, the trial court orally engaged

in a Crim.R. 11(C) colloquy with him. A review of the transcript establishes Appellant was

aware of the nature of the charges and the maximum penalties involved. We find the

record affirmatively demonstrates the trial court advised Appellant of the maximum

penalties he could receive.

      {¶44} Appellant’s second assignment of error is overruled.
Richland County, Case No. 15CA112                                               11


      {¶45} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
