[Cite as State v. White, 2020-Ohio-219.]




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


State of Ohio                                     Court of Appeals No. S-19-012

        Appellee                                  Trial Court No. 18 CR 662

v.

Marcus E. White                                   DECISION AND JUDGMENT

        Appellant                                 Decided: January 24, 2020

                                           *****

        Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

        Brett A. Klimkowsky, for appellant.

                                           *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Marcus White, appeals the judgment of the Sandusky County

Court of Common Pleas, convicting him following a plea of guilty to one count of

attempted possession of marihuana in violation of R.C. 2925.11(A) and (C)(3)(d), and

R.C. 2923.02(A), a felony of the fourth degree, and sentencing him to 18 months in

prison. For the reasons that follow, we affirm.
                                              +

                          I. Facts and Procedural Background

       {¶ 2} On September 17, 2018, the Sandusky County Grand Jury entered a two-

count indictment against appellant, charging him with one count of possession of

marihuana in violation of R.C. 2925.11(A) and (C)(3)(d), a felony of the third degree,

and one count of having weapons while under disability in violation of R.C.

2923.13(A)(2) and (B), a felony of the third degree. The charges arose from a traffic stop

where appellant was a passenger in a car that contained a firearm and 3.1 pounds of

marihuana.

       {¶ 3} On December 11, 2018, appellant entered a plea of guilty to the amended

charge of attempted possession of marihuana in violation of R.C. 2925.11(A) and

(C)(3)(d), and R.C. 2923.02(A), a felony of the fourth degree. Pursuant to the plea

agreement, the charge for having a weapon under disability was dismissed. Following a

Crim.R. 11 plea colloquy, the trial court accepted appellant’s plea, found him guilty, and

continued the matter for the preparation of a presentence investigation report.

       {¶ 4} The sentencing hearing was held on February 6, 2019. At the sentencing

hearing, counsel for appellant advocated for community control, referencing

conversations that were had with the prosecution. Counsel also presented his argument

that appellant was very cooperative throughout the proceedings, has accepted

responsibility for his actions, has a welding certificate and is looking to further his

education, and wants to put down roots and build a good foundation for his life. After




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hearing counsel’s statement, the trial court noted appellant’s five prior felony

convictions, his continued use of drugs, his recidivism score, and his active warrant from

the state of Washington for escaping community control and possession of a controlled

substance. The court also acknowledged its role to protect the public from future crime

and impose an appropriate punishment. Thereafter, the trial court accepted the

recommendation contained in the presentence investigation report and sentenced

appellant to serve a prison term of 18 months. Upon prompting from the prosecutor, the

trial court asserted that in imposing its sentence it had considered the factors in R.C.

2929.11 and 2929.12.

                                 II. Assignments of Error

       {¶ 5} Appellant has timely appealed his judgment of conviction, and now asserts

two assignments of error for our review:

               1. The Trial Court’s sentence of Marcus White (“Appellant”) is

       excessive and violates the law.

               2. Appellant’s plea was not knowingly, voluntarily, and intelligently

       made.

                                         III. Analysis

       {¶ 6} We will address appellant’s assignments of error in reverse order.

       A. Appellant’s plea was knowingly, intelligently, and voluntarily made.

       {¶ 7} In his second assignment of error, appellant argues that his plea was not

knowingly, intelligently, and voluntarily made. “Before a trial court may accept a guilty




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plea, it must address the defendant personally and inform him of, and ensure that he

understands, ‘the nature of the charges and of the maximum penalty involved’ and the

‘effect of the plea of guilty.’” State v. Dornoff, 2018-Ohio-3084, 105 N.E.3d 1278, ¶ 9

(6th Dist.), quoting Crim.R. 11(C)(2)(a) and (b). “The underlying purpose of Crim.R.

11(C) is to ensure that the information a defendant needs to make a voluntary and

intelligent decision about pleading guilty is conveyed to him.” Id., citing State v.

Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

       {¶ 8} In this case, appellant argues that his plea was not knowingly, voluntarily,

and intelligently made because conversations with the prosecutor led appellant to believe

that he would be sentenced to community control instead of a term of imprisonment.

However, the transcript from the plea hearing reveals that while community control was

presented as a sentencing option, the trial court first informed appellant that it could

impose a sentence of up to 18 months in prison. The court also informed appellant that if

it sentenced him to prison, he could be subject to a period of postrelease control.

Notably, the prosecution never mentioned community control, or made a

recommendation of community control. In this way, this case is distinguishable from

State v. Asberry, 173 Ohio App.3d 443, 2007-Ohio-5436, 878 N.E.2d 1082 (8th Dist.),

cited by appellant, in which the appellate court found that the plea was not knowingly,

intelligently, and voluntarily made where the state and trial court both repeated the state’s

position that it was not seeking prison time, and the trial court never informed the

defendant that it was not bound by the state’s recommendation. Therefore, because the




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trial court correctly and fully informed appellant of the potential consequences of his

plea, we hold that his plea was knowingly, intelligently, and voluntarily made.

       {¶ 9} Accordingly, appellant’s second assignment of error is not well-taken.

       B. Appellant’s sentence is not clearly and convincingly contrary to law.

       {¶ 10} In his first assignment of error, appellant argues that his sentence is

excessive, and that the trial court should have imposed a term of community control,

which would have constituted the minimum sanction needed to appropriately punish

appellant and deter others.

       {¶ 11} We review felony sentences under the two-pronged approach set forth in

R.C. 2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-

425, ¶ 11. R.C. 2953.08(G)(2)(b) provides that an appellate court may increase, reduce,

modify, or vacate and remand a disputed sentence if it clearly and convincingly finds

“[t]hat the sentence is otherwise contrary to law.” In Tammerine, we recognized that

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, abrogated by State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, still can provide

guidance for determining whether a sentence is clearly and convincingly contrary to law.

Tammerine at ¶ 15. The Ohio Supreme Court in Kalish held that where the trial court

expressly stated that it considered the purposes and principles of sentencing in R.C.

2929.11, as well as the factors listed in R.C. 2929.12, properly applied postrelease

control, and sentenced the defendant within the statutorily permissible range, the sentence

was not clearly and convincingly contrary to law. Kalish at ¶ 18.




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       {¶ 12} Here, appellant does not argue that postrelease control was improperly

applied or that he was sentenced outside of the statutorily permissible range. The record

also reflects that the trial court considered the principles and purposes of sentencing in

R.C. 2929.11 and the seriousness and recidivism factors contained in R.C. 2929.12.

Furthermore, we find that the record supports the trial court’s sentencing determination in

that appellant has five prior felony convictions, including attempted robbery, burglary,

possession of a controlled substance, and bail jumping. Therefore, we cannot say that

appellant’s sentence is clearly and convincingly contrary to law.

       {¶ 13} Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 14} Judgment of the Sandusky County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant shall pay the costs of this appeal.

                                                                         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.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, 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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