[Cite as State v. Johnson, 2019-Ohio-1382.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 28077
                                                    :
 v.                                                 :   Trial Court Case No. 2018-CR-739
                                                    :
 ISHMEL JOHNSON                                     :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                             Rendered on the 12th day of April, 2019.

                                               ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2372 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
     Attorney for Defendant-Appellant

                                              .............
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DONOVAN, J.

       {¶ 1} Defendant-appellant Ishmel Johnson appeals his conviction for one count of

domestic violence, in violation of R.C. 2919.25(A) and (D)(3), a felony of the fourth

degree. On July 26, 2018, Johnson filed a timely notice of appeal with this Court.

       {¶ 2} The incident which formed the basis for Johnson’s conviction occurred on the

morning of February 22, 2018, when two officers from the Miamisburg Police Department

were dispatched to the intersection of Fourth Street and Lane Street on a report of a

domestic violence incident.     Upon arriving, the officers made contact with A.M., the

victim, who informed them that she had recently been physically assaulted by her

boyfriend, Johnson, at their shared residence. Specifically, A.M. informed the police that

Johnson had been angry at her for returning home from work fifteen minutes late. At

some point during the argument, Johnson grabbed A.M. by the neck and pushed her into

a wall, causing her to hit her head.

       {¶ 3} Eventually, A.M. was able to reach her vehicle, leave their residence, and

contact the police. The officers observed scratch marks on A.M.’s neck but could discern

no visible injury to her head.       A.M. declined medical treatment at the scene.        A

broadcast was issued for Johnson, and he was arrested in Trotwood two days later.

       {¶ 4} On March 5, 2018, Johnson was indicted for one count of domestic violence

(knowingly, with one prior offense), in violation of R.C. 2919.25(A) and (D)(3), a felony of

the fourth degree. At his arraignment on March 12, 2018, Johnson stood mute, and the

trial court entered a plea of not guilty on his behalf.

       {¶ 5} On May 15, 2018, Johnson pled guilty to one count of domestic violence.

Prior to conducting the plea colloquy, the trial court informed Johnson that the State’s
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sentencing recommendation was a term of community control sanctions and a

requirement that Johnson attend anger management classes. The trial court informed

Johnson that it was not bound by the State’s sentencing recommendation. Rather, the

trial court advised Johnson that it would rely on a presentence investigation report (PSI)

in order to determine the appropriate sentence to impose.         Johnson stated that he

understood. Thereafter, the trial court accepted Johnson’s guilty plea and referred the

case to the adult probation department for a PSI.

       {¶ 6} At his disposition on June 27, 2018, the trial court informed Johnson that it

had reviewed his PSI and found that he had “a serious history of violence.” The trial

court rejected the State’s sentencing recommendation and sentenced Johnson to 12

months in prison. The trial court filed Johnson’s judgment entry of conviction on June

29, 2018.

       {¶ 7} It is from this judgment that Johnson now appeals.

       {¶ 8} Johnson’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED IN IMPOSING A PRISON SENTENCE.

       {¶ 9} In his assignment of error, Johnson contends that the record clearly and

convincingly fails to support the trial court’s imposition of a 12-month prison sentence.

       {¶ 10} As this Court has previously noted:

              “This court no longer applies an abuse of discretion standard when

       reviewing felony sentences, as the Supreme Court of Ohio has made clear

       that felony sentences are to be reviewed in accordance with the standard

       set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016-

       CA-28, 2016-Ohio-7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516,
                                                                                          -4-

      2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer, 2013-

      Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.) Under the plain language of

      R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony

      sentence on appeal only if it determines by clear and convincing evidence

      that the record does not support the trial court’s findings under relevant

      statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1.

      “This is a very deferential standard of review, as 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. Cochran, 2d Dist. Clark No. 2016-

      CA-33, 2017-Ohio-217, ¶ 7, citing Rodeffer at ¶ 31.

             Even before Marcum, we had indicated “[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 reasons for

      imposing maximum or more than minimum sentences.” (Citation omitted.)

      State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5759. Accord

      State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14. But

      “in exercising its discretion, a trial court must consider the statutory policies

      that apply to every felony offense, including those set out in R.C. 2929.11

      and R.C. 2929.12.” (Citations omitted.) State v. Castle, 2016-Ohio-4974, 67

      N.E.3d 1283, ¶ 26 (2d Dist.). * * *

State v. Folk, 2d Dist. Montgomery No. 27375, 2017-Ohio-8105, ¶ 5-6.

      {¶ 11} At Johnson’s sentencing hearing, the trial court made the following
                                                                                           -5-


statements:

              Sir, I reviewed your presentence investigation yesterday with the

       director of our probation department to get some more feedback. You

       have, as I said before, a serious history of violence. From my perspective,

       you don’t take responsibility for you actions.        You’ve had numerous

       opportunities at Stop the Violence and other similar programs in the past.

       The last time you were on supervision you were given an incomplete

       termination which was six days before this offense.

              After considering the purposes and principles of sentencing and the

       seriousness and recidivism factors I’m going to sentence you to 12 months

       at the Correctional Reception Center. You’ll be given all applicable jail time

       credit, which is 14 days. There is no request for restitution. I am going to

       order that you pay court costs as determined by the clerk of courts.

       {¶ 12} Initially, Johnson argues that, because he pled to a felony of the fourth

degree, the trial court could not sentence him to a prison term unless it made findings

pursuant to R.C. 2929.13(B)(1)(b); that statute provides that “[t]he trial court has

discretion to impose a prison term upon an offender who is convicted of or pleads guilty

to a felony of the fourth or fifth degree that is not an offense of violence or that is a

qualifying assault offense if any of the following apply * * *.” The statute then lists eleven

specific factors. R.C. 2929.13(B)(1)(b)(i)-(xi).

       {¶ 13} Pursuant to R.C. 2901.01(A)(9)(a), however, “domestic violence,” a

violation of R.C. 2919.25, is defined as an “offense of violence.” Furthermore, domestic

violence is not a “qualifying assault offense,” which is defined as “a violation of section
                                                                                        -6-


2903.13 of the Revised Code for which the penalty provision in division (C)(8)(b) or

(C)(9)(b) of that section applies.” R.C. 2929.13(K)(4). Therefore, R.C. 2929.13(B)(1)(b)

has no application in the instant case. Rather, the section of the R.C. 2929.13 that does

apply here is (B)(2), which provides as follows:

       (2) If division (B)(1) of this section does not apply, except as provided in

       division (E), (F), or (G) of this section, in determining whether to impose a

       prison term as a sanction for a felony of the fourth or fifth degree, the

       sentencing court shall comply with the purposes and principles of

       sentencing under section 2929.11 of the Revised Code and with section

       2929.12 of the Revised Code.

(Emphasis added.) Upon review, the record establishes that the trial court relied on the

appropriate section of R.C. 2929.13 when it imposed a 12-month prison sentence on

Johnson.

       {¶ 14} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

and principles of felony sentencing. Those purposes 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.” R.C. 2929.11(A). The

court must “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.” Id.    R.C. 2929.11(B) further provides that “[a]

sentence imposed for a felony shall be reasonably calculated to achieve the two

overriding purposes of felony sentencing * * *, commensurate with and not demeaning to
                                                                                             -7-


the seriousness of the offender’s conduct and its impact upon the victim, and consistent

with sentences imposed for similar crimes committed by similar offenders.”

       {¶ 15} R.C. 2929.12(B) sets forth nine factors indicating an offender’s conduct is

more serious than conduct normally constituting the offense. R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious. R.C. 2929.12(D) and

(E) each list five factors that trial courts are to consider regarding the offender’s likelihood

of committing future crimes. Finally, R.C. 2929.12(F) requires the sentencing court to

consider the offender’s military service record and “whether the offender has an

emotional, mental, or physical condition that is traceable to the offender’s service in the

armed forces of the United States and that was a contributing factor in the offender’s

commission of the offense or offenses.”

       {¶ 16} At Johnson’s sentencing hearing, the trial court stated that it had received

and reviewed the PSI. The trial court also stated that it had considered “the purposes and

principles of sentencing and the seriousness and recidivism factors,” and it noted that

Johnson’s conviction for domestic violence could carry “a prison term of 6, 7, 8, 9, 10, 11,

12, 13, 14, 15, 16, 17, or 18 months * * *.”

       {¶ 17} We also note that Johnson had an extensive criminal record. As a juvenile,

Johnson was adjudicated a delinquent for criminal trespassing and criminal damaging.

Johnson’s adult misdemeanor record reflected that he had convictions for petty theft, two

separate convictions for open container violations, assault, four separate instances of

disorderly conduct, public intoxication, resisting arrest, and three convictions for

obstructing official business. Significantly, in 2015, Johnson was convicted of domestic
                                                                                           -8-


violence.1 Johnson’s PSI indicated that, in that case, he struck the female victim multiple

times with closed fists and a cane, and he took her phone and threw it at her when she

attempted to call 911.

        {¶ 18} Johnson’s adult felony record reflects that he had been convicted of assault

on a peace officer in 2003.2 Johnson’s PSI indicated that, in that case, he “became

combative during a traffic stop, kicking the arresting officers, spitting on the officers, and

damaging the backseat window of a police cruiser.” Additionally, Johnson had been

convicted of possession of cocaine and non-support of dependents.

        {¶ 19} In the case at bar, the trial court imposed a sentence within the permissible

statutory range. The record establishes that the trial court properly reviewed the PSI,

Johnson’s statements, and the statements of counsel. The record further establishes

that the trial court considered the principles and purposes of sentencing under R.C.

2929.11, and that it balanced the seriousness and recidivism factors set forth in R.C.

2929.12. In sum, we are unable to find “by clear and convincing evidence that the record

does not support the sentence.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, at ¶ 23. The sentence is not contrary to law.

        {¶ 20} Johnson’s assignment of error is overruled.

        {¶ 21} Johnson’s assignment of error having been overruled, the judgment of the

trial court is affirmed.

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




1   Montgomery C.P. No. 2015 CR 0594.
2   Montgomery C.P. No. 2003 CR 0004.
                                          -9-


WELBAUM, P.J. and FROELICH, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Michael J. Scarpelli
Thomas M. Kollin
Hon. Mary Katherine Huffman
