[Cite as State v. Hill, 2019-Ohio-4378.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                        Court of Appeals No. L-19-1016

          Appellee                                   Trial Court No. CR0201801617

v.

Terrence Hill                                        DECISION AND JUDGMENT

          Appellant                                  Decided: October 25, 2019

                                              *****

          Julia R. Bates, Lucas County Prosecuting Attorney, and
          Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

          Sarah Haberland, for appellant.

                                              *****

          ZMUDA, J.
                                           I. Introduction

          {¶ 1} Appellant, Terrence Hill, appeals the judgment of the Lucas County Court of

Common Pleas, sentencing him to four years in prison for one count of felonious assault

and one count of aggravated robbery. Finding no error in the proceedings below, we

affirm.
                         A. Facts and Procedural Background

       {¶ 2} On April 10, 2018, appellant was indicted on one count of attempted murder

in violation of R.C. 2903.02(A), 2923.02, and 2929.02, a felony of the first degree, one

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

second degree, and one count of aggravated robbery in violation of R.C. 2911.01(A)(1)

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

foregoing charges at his arraignment on April 17, 2018. Thereafter, the matter proceeded

through discovery and plea negotiations.

       {¶ 3} On October 16, 2018, appellant appeared before the trial court for a change

of plea hearing. At the hearing, appellant entered a plea of no contest to the felonious

assault and aggravated robbery counts. In exchange for appellant’s plea, the state agreed

to dismiss the charge for attempted murder at sentencing.

       {¶ 4} Following a Crim.R. 11 colloquy, the state articulated the facts relating to

the charges contained in the indictment, as follows:

              Your Honor, specifically the evidence in this case would have shown

       that on March 29, 2018, in the early morning hours, the defendant as well

       as his co-defendants in this case contacted the involved victim through

       Backpage which is commonly used by prostitutes trying to obtain, employ

       services of individuals who are willing to pay for intercourse.

              It was the plan of these individuals to bring the victim to the

       apartment and rob him of his money.




2.
              Your Honor, on the 29th of March, 2018, the victim then did in fact

      communicate with one of the co-defendants on Backpage and did respond

      to the address of 4870 South Village Drive, Apartment 2, here in Lucas

      County, Ohio.

              At that time, the victim began to engage in intercourse with one of

      the involved co-defendants. At that time, Defendant Hill as well as

      Defendant Haas entered the bedroom where that was taking place and

      began to demand money from the victim and began assaulting him.

              The victim did resist and began fighting. During the interaction then

      the evidence would have shown that Defendant Hill took a knife and sliced

      the victim across the abdomen. The victim was able to flee the apartment

      leaving behind his belongings, including quite a large sum of money.

              He then fled into the parking lot of the apartment complex where

      neighbors found him naked and bleeding and they contacted the authorities

      to respond. Several of the defendants in this case were eventually

      interviewed and implicated Mr. Hill as the individual who used the weapon

      and sliced the victim’s stomach in this case causing the serious physical

      harm.

      {¶ 5} Thereafter, the trial court accepted appellant’s no contest plea and found him

guilty of felonious assault and aggravated robbery. The court ordered the preparation of

a presentence investigation report and continued the matter for sentencing.




3.
       {¶ 6} Appellant’s sentencing hearing was held on January 8, 2019. At the

sentencing hearing, defense counsel requested a lenient sentence after informing the court

that appellant was only 18 years old at the time of the offense and had only one prior

misdemeanor on his record. Defense counsel went on to assert that appellant stabbed the

victim in this case because he saw the victim choking Haas, his uncle. Counsel insisted

that appellant “did not have the knowledge that this was a planned robbery that had been

set up. [Appellant] went in, saw a situation that involved his uncle and he was trying to

help his uncle.”

       {¶ 7} Following counsel’s statements, appellant addressed the court and stated

remorse for his actions, describing them as a “lapse in judgment.” The state provided no

statement to the court.

       {¶ 8} Thereafter, the court indicated its consideration of the principles and

purposes of sentencing under R.C. 2929.11, as well as its balancing of the seriousness

and recidivism factors under R.C. 2929.12. The court went on to recognize defense

counsel’s “very passionate argument on behalf of his client.” At that point, the victim

expressed a desire to be heard. In his brief statement to the court, the victim agreed with

appellant’s claim that he was merely helping his uncle and was unaware of the underlying

robbery scheme.

       {¶ 9} Following the victim’s statement, the court expressed compassion for

appellant’s situation, but noted that appellant’s offenses were serious, having caused the

victim “substantial psychological and physical harm as well as financial harm.” Given




4.
the violent nature of the offenses, the trial court found that appellant poses a threat to the

community. The court also found that the statements in mitigation did not rebut the

applicable statutory presumption of a prison sanction. Consequently, the trial court

imposed a prison sentence of four years for the charge of felonious assault, as well as

four years for the charge of aggravated robbery. The trial court noted that it would

follow the recommendation of the state and impose those prison sentences concurrently.

       {¶ 10} After notifying appellant of his firearms and postrelease control

obligations, the court asked defense counsel whether there was a challenge to appellant’s

ability to pay financial sanctions, to which defense counsel replied in the negative. As a

result, the trial court ordered appellant to pay the costs of prosecution, supervision,

appointed counsel, and confinement. The court specifically found that appellant “has or

may be reasonably expected to have the means to pay all or part of the applicable court-

appointed counsel fees and costs of confinement.” Additionally, the court ordered

appellant to pay restitution in the amount of $9,469.03. Following the court’s dismissal

of the attempted murder charge, the sentencing hearing concluded.

       {¶ 11} Appellant now timely appeals.

                                   Assignments of Error

       {¶ 12} On appeal, appellant sets forth the following assignments of error:

              I. The trial court abused its discretion at sentencing, by failing to

       impose the minimum sanctions in accordance with R.C. 2929.11.




5.
              II. The trial court abused its discretion at sentencing, by failing to

       access all of the factors in accordance with R.C. 2929.12.

              III. The trial court abused its discretion in sentencing, by sentencing

       in a manner that was clearly and convincingly contrary to Ohio law.

                                        II. Analysis

       {¶ 13} In his first assignment of error, appellant argues that the trial court failed to

impose the minimum sanction that would accomplish the principles and purposes of

sentencing set forth in R.C. 2929.11. Relatedly, appellant argues in his second

assignment of error that the trial court failed to consider all of the seriousness and

recidivism factors under R.C. 2929.12. In his third assignment of error, appellant

incorporates his arguments from his first two assignments of error, and asserts that his

sentence was contrary to law. As all of these arguments are related, we will address them

together.

       {¶ 14} The review of felony sentences is governed under R.C. 2953.08(G)(2).

Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate

and remand a sentence only if the record demonstrates, clearly and convincingly, 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




6.
       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant; or

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

“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. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

       {¶ 15} A trial court that sentences a defendant for a felony offense,

              shall be guided by the overriding purposes of felony sentencing:

       * * * to protect the public from future crime by the offender and others, to

       punish the offender, and to promote the effective rehabilitation of the

       offender using the minimum sanctions that the court determines accomplish

       those purposes without imposing an unnecessary burden on state or local

       government resources.

R.C. 2929.11(A).

       {¶ 16} When considering the appropriate sentence, the trial 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




7.
public, or both.” Id. The sentence must be reasonably calculated to achieve those

purposes “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

crimes by similar offenders.” R.C. 2929.11(B).

       {¶ 17} To comply with the principles and purposes of sentencing set forth in R.C.

2929.11, the trial court must consider the seriousness and recidivism factors contained in

R.C. 2929.12. To that end, we have previously explained,

              R.C. 2929.12 is a guidance statute. It sets forth the seriousness and

       recidivism criteria that a trial court “shall consider” in fashioning a felony

       sentence. Subsections (B) and (C) establish the factors indicating whether

       the offender’s conduct is more serious or less serious than conduct

       normally constituting the offense. Subsections (D) and (E) contain the

       factors bearing on whether the offender is likely or not likely to commit

       future crimes. While the phrase “shall consider” is used throughout R.C.

       2929.12, the sentencing court is not obligated to give a detailed explanation

       of how it algebraically applied each seriousness and recidivism factor to the

       offender. Indeed, no specific recitation is required. Merely stating that the

       court considered the statutory factors is enough.

State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11

(6th Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38

and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).




8.
       {¶ 18} At sentencing, the trial court stated that it had considered the principles and

purposes of sentencing under R.C. 2929.11, as well as the seriousness and recidivism

factors in R.C. 2929.12. This sentiment was echoed in the sentencing entry, which

provides: “The Court has considered the record, oral statements, any victim impact

statement and presentence report prepared, as well as the principles and purposes of

sentencing under R.C. 2929.11, and has balanced the seriousness, recidivism and other

relevant factors under R.C. 2929.12.” As noted above, the trial court’s statement that it

considered the sentencing statutes is sufficient to pass muster under Ohio law.

Brimacombe at ¶ 11.

       {¶ 19} Appellant contends that the court should have imposed a lesser sentence

because he had no juvenile record and only one misdemeanor as an adult. Further,

appellant maintains, as he did at sentencing, that he “did not know the reality of the

situation that had transpired in front of him. He reacted in a way that was seemingly

reasonable. He saw his uncle being attacked, choked. He came to his [uncle’s] rescue, or

what he thought was his rescue.” Ultimately, appellant advances what seems to be a

defense of others argument, and urges that he is not a violent offender, but is instead a

young man who thought he was doing the right thing in protecting his uncle. Thus,

appellant argues, the prison sanction imposed by the trial court does not match his

character and the facts of this case.

       {¶ 20} Appellant’s claim of naiveté with respect to the underlying robbery scheme

was articulated to the court at sentencing. The court clearly considered this argument,




9.
and responded to the argument by noting its compassion for appellant. However, the

court explained that “the factors I have to consider are the same,” and noted the

seriousness of the offenses. The court then noted the serious harm done to the victim in

this case as a result of appellant’s actions.

       {¶ 21} Given the nature of the offenses in this case, and in light of the trial court’s

express consideration of the principles and purposes of sentencing under R.C. 2929.11, as

well as the sentencing factors under R.C. 2929.12, the trial court’s sentence, which was

within the applicable statutory range under R.C. 2929.14, is not contrary to law.

Accordingly, appellant’s assignments of error are not well-taken.

                                       III. Conclusion

       {¶ 22} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                          Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




10.
                                                                     State v. Hill
                                                                     C.A. No. L-19-1016




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Christine E. Mayle, P.J.
                                              _______________________________
Gene A. Zmuda, J.                                         JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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