[Cite as State v. Perry, 2016-Ohio-4722.]




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

 STATE OF OHIO                                    :

          Plaintiff-Appellee                      :   C.A. CASE NO. 26720

 v.                                               :   T.C. NO. 14CR1454
                                                      (Criminal appeal from
 TORREY D. PERRY                                  :   Common Pleas Court)

          Defendant-Appellant                     :

                                                  :

                                                  :

                                            OPINION

                 Rendered on the ___30th___ day of _____June_____, 2016.

                                       ...........
KIRSTEN A. BRANDT, Atty, Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LORI R. CICERO, Atty. Reg. No. 0079508, 500 E. Fifth Street, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

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

DONOVAN, P.J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Torrey D. Perry,

filed June 8, 2015. Perry appeals from his May 12, 2015 Judgment Entry of Conviction,

following a jury trial, on one count of felonious assault (deadly weapon), in violation of

R.C. 2903.11(A)(2), a felony of the second degree (Count I), and one count of felonious

assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a felony of the second
                                                                                         -2-


degree (Count III), along with attendant firearm specifications. Perry waived his right to a

trial by jury on one count of having weapons while under disability (prior offense of

violence), in violation of R.C. 2923.13(A)(2), a felony of the third degree (Count II), and

the court found him guilty of the offense. The court also found Perry guilty of repeat

violent offender specifications attached to both felonious assault offenses.             At

sentencing, the court merged the felonious assault offenses, the State elected to proceed

on felonious assault (serious physical harm) (Count III), and the court sentenced Perry to

a mandatory term of eight years. The court further sentenced Perry to 36 months for

having weapons while under disability, to be served consecutively to the felonious assault

sentence. Finally, the court sentenced Perry to a mandatory term of ten years for a single

repeat violent offender specification on Count III, to be served prior and consecutively to

the definite term of imprisonment and consecutively to the mandatory three-year term for

the firearm specification, for an aggregate sentence of 24 years. Perry argues herein

that his sentence is contrary to law and constitutes cruel and unusual punishment. We

hereby affirm the judgment of the trial court.

       {¶ 2} Perry was indicted on June 13, 2014, and he entered a plea of not guilty on

June 17, 20141. On August 20, 2014, Perry executed the Waiver of Jury on Count II. On

September 9, 2014, defense counsel filed a Motion for Leave to Withdraw which provides

that a trial was held on August 18 - 20, 2014, resulting in a mistrial due to a hung jury.


1
  We note that Perry’s indictment erroneously provides in the repeat violent offender
specifications to counts I and III that Perry was previously convicted of aggravated
murder, and it erroneously cites R.C. 2929.14(D)(2)(a) in those specifications. The
indictment further erroneously provides in Count II that Perry was previously convicted of
aggravated murder. At trial the State moved to orally amend the indictment to reflect that
Perry was previously convicted of attempted murder and to correct the erroneously cited
code sections to R.C. 2929.14(B)(2)(a). The court granted the motion.
                                                                                      -3-


The court granted the motion, and on September 11, 2014, the court appointed counsel

to represent Perry. On March 25, 2015, the court issued an Entry of Mistrial without

prejudice which provides: “1) there was a hung jury with a vote of eleven to one and no

probability of the jury reaching a unanimous verdict; and 2) there was juror misconduct

by the lone juror holdout.” On August 16, 2015, Perry executed a second Waiver of Jury

on Count II. Trial commenced on April 13, 2015.

      {¶ 3} The victim herein, K.P., testified that she is 34 years old and has three

children. She stated that she knew of Perry for two years and knew him personally for

five or six months. K.P. stated that she and Perry became acquainted after they began

working together as informants for Officer Warneke in Fayette County “to get the drugs

off the streets.” According to K.P., she began to suspect that Perry was not acting as an

informant but rather was trafficking in heroin himself. She based her suspicion on a

conversation she overheard about the need to move a “press” from Perry’s basement to

a “safe house” in Columbus. K.P. also testified that she became aware that Jeff Jackson

“was selling Torrey’s drugs.”

      {¶ 4} K.P. testified that on April 12, 2014, she went to the home of Jeff Jackson

and advised him that “Torrey sent me there to pick up his drugs.” She stated that

Jackson then placed a phone call, and after “going back and forth” with the person on the

other end of the call, handed the phone to her. K.P. stated that she recognized Perry’s

voice on the phone and that he told her to “get the f*** out of there and leave him alone

and not to mess with it.” She stated that she understood “that I found out something that

I wasn’t supposed to find out.”

      {¶ 5} According to K.P., on April 14, 2014, she was awakened in the afternoon by
                                                                                         -4-


a knock on her door. K.P. stated that she believed Perry was outside, and that she opened

the door to let him in, subsequently discovering that an individual named “Booby” was

there looking for Perry. She stated that she phoned Perry and told him that Booby was

looking for him. K.P. stated that Perry told her he was in Dayton and asked her to pick

him up there.

       {¶ 6} K.P. stated that she borrowed a van and drove to Dayton, where she had

difficulty ascertaining Perry’s whereabouts. She stated that she eventually spoke to

Perry on the phone, and that he told her that she had betrayed him. After sending Perry

multiple text messages without response, she waited at an apartment complex where she

expected to meet Perry. She stated that Perry eventually emerged from an apartment

there and told her to leave. As she began to back her vehicle from a parking space,

Perry raised a firearm and fired six shots, striking K.P. five times, according to her

testimony. She stated that she was hit twice in the chest, twice in the stomach and once

in the left arm. K.P. stated that she “had to have surgery. My intestines were cut. I lost

part of my intestines, my bowels. I was diagnosed with PTSD. I’m ongoing with an

orthopedic doctor right now. I have two bullets in my spine that’s causing a lot of

problems.” She stated that she is unable to work due to ongoing back pain for which she

takes medication. K.P. stated that she also sees a psychiatrist.

       {¶ 7} At sentencing, the court indicated that it reviewed a presentence

investigation report as well as “medical records regarding Mr. Perry provided by defense

counsel from Day-Mont Behavior (sic) Health Care and the Methodist Hospital’s Inc. of

Indiana, as these documents relate to considerations of mitigation in sentencing.” The

court further indicated that it “also reviewed victim impact statements from the victim, her
                                                                                            -5-


family, letters of support for the Defendant provided by his counsel and the attorney’s

statements of Mr. Carter and Mr. Chadrick, State’s counsel.” K.P. made a statement to

the court, and the prosecutor directed the court’s attention to the State’s sentencing

memorandum which indicates that Perry was previously incarcerated for 10 years for

attempted murder.

      {¶ 8} The court indicated as follows:

             Let me state for the record as well. That regarding the medical

      records that were submitted by Mr. Carter, some of those records date from

      when Mr. Perry was 13 years of age. The Day-Mont records are quite - -

      I’ll use the term stale, may not be the best term in the world, but they’ve got

      some time on them.

             I will say, also, for the record, that this matter was tried previously by

      Mr. Reed from Columbus who was retained counsel. At no time did Mr.

      Reed on behalf of Mr. Perry make a motion to evaluate competency nor did

      Mr. Carter in this matter, neither counsel, both of whom are able and tried

      these cases ably, both the first one and the second one, neither pursued an

      insanity defense and from the Court’s perspective and what I observe

      throughout its interface with Mr. Perry, as well as the trial of this matter (sic).

             I see no reason to believe that counsel should have pursued either

      competency or an NGR-I plea and I believe that the medical records that

      have been submitted do not call into question what the Court is about to do.

             I also would say for the record that the fact that this was a felonious

      assault trial with its various specifications as opposed to a murder trial was
                                                                                       -6-


      entirely a matter of serendipity.

      {¶ 9} After indicating that it considered “the purposes and principles of sentencing

set forth in the revised code including avoiding unnecessary burden upon government

resources, the seriousness and recidivism factors of the code that dictates with 29-29-13

* * * as well as the Defendant’s present and future ability to pay financial sanctions,

including any restitution,” the court imposed sentence as set forth above for each offense

and specification. The court then indicated as follows:

             Pursuant to the State versus Moore, Second District, 2015, Ohio, 13-

      27, the prison term for the firearm and the repeat violent offender

      specifications are to be served consecutively to each other and prior to the

      underlying eight-year mandatory prison term for a total mandatory prison

      term of 21 years on Count III and its attend[ant] specifications.

             Count III also carries with it a mandatory three-year period of post-

      release control.

             The Court orders that the prison term for Count II of 36 months and

      Count III of 21 years are also to be served consecutively to each other for

      a total prison term of 24 years.

             ***

             In ordering consecutive sentencing on Counts II and III as

      announced today, the Court expressly finds as follows:

             Consecutive sentencing is necessary to protect the public from future

      crime, consecutive sentencing is necessary to punish the Defendant, and

      the Court finds consecutive sentences are not disproportionate to the
                                                                                  -7-


seriousness of the Defendant’s conduct and to the danger he poses to the

public and the Court expressly finds that at least two of the multiple offenses

were committed as part of one or more courses of conduct, the harm caused

by the two or more multiple offenses were (sic) so great and unusual that

no single prison term would adequately reflect the seriousness of the

Defendant’s conduct and the Court finds that his history of criminal conduct

demonstrates the consecutive sentencing is necessary to protect the public

from future crime by the Defendant.

       In ordering consecutive sentencing on Count III and the repeat

violent offender specification, the Court expressly finds as follows:

       The Defendant has been convicted of the repeat violent offender

specification set forth in 29-41.149.

       Count III, felonious assault, serious physical harm is a second-

degree felony, which offense involved in (sic) attempt to and resulted in

serious physical harm to the victim, [K.P.].

       The Court has imposed the maximum prison term for Count III, the

Court finds that the maximum prison term for Count III is inadequate to

punish the Defendant and to protect the public from future crime because

the applicable factors of 292912 indicating a greater likelihood of recidivism

outweigh the applicable factors indicating a lesser likelihood of recidivism,

specifically, the Court wishes to mention as it relates to 292912, subsection

D, that the Defendant has a history of criminal convictions, that’s subsection

two.
                                                                                         -8-


             Subsection three, the Defendant has not previously, favorably

      responded to sanctions previously imposed for criminal conviction and in *

      * * subsection D, five, the Court finds that the Defendant has shown no

      genuine remorse for the offense.

             The Court also expressly finds that the maximum prison term for

      Count III would demean the seriousness of this offense because the factors

      under 292912 indicating conduct normally constituting the offense are

      present and outweigh the factors indicating his conduct was less serious

      than normally constituting the offense, specifically referring to subsection B

      of 292912, the court finds that the victim of this offense suffered serious

      physical, psychological, and economic harm as a result of the offense and

      the Court finds subsection B, six, that the Defendant’s relationship with the

      victim facilitated this offense and in particular indicates that, in essence, he

      lured her to the area at which time he shot her repeatedly.

Perry’s Judgment Entry of Conviction reflects the court’s findings at sentencing

regarding maximum consecutive sentencing.


      {¶ 10} Perry asserts one assignment of error herein as follows:

             APPELLANT SHOULD BE REMANDED TO THE TRIAL COURT

      FOR SENTENCING AS THE SENTENCE HE RECEIVED IS CONTRARY

      TO LAW, AND IN VIOLATION OF HIS RIGHTS UNDER THE EIGHTH

      AMENDMENT TO THE UNITED STATES CONSTITUTION.

      {¶ 11} Perry asserts as follows:

             Mr. Perry contends that the record does not support the trial court’s
                                                                               -9-


maximum, consecutive sentences. Although some factors set forth in R.C.

2929.12(B) weigh in favor of a finding that Mr. Perry’s conduct was more

serious than conduct normally constituting the offenses, other factors exist

tending to show that his conduct was less serious than conduct normally

constituting the offenses. He further contends that his conduct did not

warrant maximum, consecutive sentences, and that the imposition of such

sentences violated the Eighth Amendment’s prohibition on cruel and

unusual punishment.

        ***

        Mr. Perry asserts that the statutory findings by the Court and the

10-year prison term he received for being a repeat violent offender is

contrary to law. Mr. Perry maintains that the prison terms contemplated by

section (B)(2)(a)(iii) are adequate to punish him and to protect the public

from future crime. He further argues that his likelihood of recidivism is

outweighed by the factors indicating a lesser likelihood of recidivism and

any sentence, without the repeat violent offender application, would not be

demeaning to the seriousness of the offense and that * * * his conduct is

less serious than conduct normally constituting the offense. The range of

punishments available to the trial court was adequate to comply with the

mandates of section 2929.12 without the additional discretionary provisions.

* * *    Mr. Perry offered in a sentencing memorandum that he was

diagnosed and suffered from mental health disorders since a young age.

Support of Mr. Perry’s mental illness was provided to the State and the
                                                                                        -10-


      Court prior to sentencing. Also, the victim acknowledged in her testimony

      at trial that she associated with people involved with selling drugs. * * * She

      believed Mr. Perry was selling drugs. * * * On April 12, 2014, two days prior

      to the incident where she was shot, she went to an individual’s home to get

      drugs. * * * The victim admitted that when Mr. Perry learned that she was

      attempting to get drugs from the individual’s home, he told her to leave the

      home, leave the man alone and not to mess with the situation. * * * Instead,

      the victim did not leave the situation alone but continued to involve herself

      with Mr. Perry. * * * She testified that * * * Mr. Perry believed that she

      betrayed him. * * * She called him repeatedly and texted him. * * * She

      knew that something was going on and people were looking for Mr. Perry.

      * * * Despite that knowledge she drove to Dayton and searched for Mr. Perry

      until she found him. * * * . Based upon the facts and circumstances of this

      case, maximum and consecutive sentences were not warranted and Mr.

      Perry demonstrated by clear and convincing evidence that his sentence was

      contrary to law.     Mr. Perry’s excessive sentences violate his Eighth

      Amendment rights.

      {¶ 12} The State responds that “the trial court sentenced Perry within the

applicable ranges for felonious assault, the firearm specification, the repeat violent

offender specification, and having a weapon while under a disability.”

      {¶ 13} As this Court recently noted in State v. McGlothan, 2d Dist. Clark Nos. 2014-

CA-120, 2014-CA-121, 2014-CA-122, 2015-Ohio-2713:

             “The trial court has full discretion to impose any sentence within the
                                                                                  -11-


authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum or more than minimum

sentences.” State v. King, 2013–Ohio–2021, 992 N.E.2d 491, ¶ 45 (2d

Dist.). However, 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. State v. Leopard, 194 Ohio App.3d 500,

2011–Ohio–3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109

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

       R.C. 2929.11 requires trial courts to be guided by the overriding

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 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.”

       R.C. 2929.12(B) sets forth nine factors indicating that an offender's
                                                                                     -12-


conduct is more serious than conduct normally constituting the offense;

these factors include whether the physical or mental injury to the victim was

exacerbated because of the physical or mental condition of the victim,

serious physical, psychological, or economic harm suffered by the victim as

a result of the offense, whether the offender's relationship with the victim

facilitated the offense, and whether the offender committed the offense for

hire or as a part of an organized criminal activity. R.C. 2929.12(C) sets forth

four factors indicating that an offender's conduct is less serious than

conduct normally constituting the offense, including whether the victim

induced or facilitated the offense, whether the offender acted under strong

provocation, whether, in committing the offense, the offender did not cause

or expect to cause physical harm to any person or property, and the

existence of substantial grounds to mitigate the offender's conduct,

although the grounds are not enough to constitute a defense. R.C.

2929.12(D) and (E) each lists 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.

       “On appeals involving the imposition of consecutive sentences, R.C.

2953.08(G)(2)(a) directs the appellate court ‘to review the record, including

the findings underlying the sentence’ and to modify or vacate the sentence

‘if it clearly and convincingly finds * * * [t]hat the record does not support the

sentencing court's findings under division * * * (C)(4) of section 2929.14 * *
                                                                                        -13-

      * of the Revised Code.’ ” State v. Bonnell, 140 Ohio St.3d 209, 2014–

      Ohio–3177, 16 N.E.3d 659, ¶ 28. In State v. Rodeffer, 2013–Ohio–5759, 5

      N.E.3d 1069 (2d Dist.), we held that we would no longer use an abuse of

      discretion standard in reviewing a felony sentence, but would apply the

      standard of review set forth in R.C. 2953.08(G)(2). [footnote omitted]

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

      or modify a sentence, or it may vacate the sentence and remand for

      resentencing, only if it “clearly and convincingly” finds either (1) that the

      record does not support certain specified findings or (2) that the sentence

      imposed is contrary to law. Rodeffer stated that “[a]lthough [State v. Kalish,

      120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124] no longer provides

      the framework for reviewing felony sentences, it does provide * * * adequate

      guidance for determining whether a sentence is clearly and convincingly

      contrary to law. * * * According to Kalish, a sentence is not contrary to law

      when the trial court imposes a sentence within the statutory range, after

      expressly stating that it had considered the purposes and principles of

      sentencing set forth in R.C. 2929.11, as well as the factors in R .C. 2929.12.”

      (Citations omitted.) Rodeffer at ¶ 32.

McGlothan, ¶ 9-13. See also State v. Marcum, Ohio Sup. Ct. Slip Opinion No.

2016-Ohio-1002.

      {¶ 14} R.C. 2929.14(C)(4) grants a sentencing judge discretion to impose

consecutive sentences as follows:

             If multiple prison terms are imposed on an offender for convictions of
                                                                                          -14-


       multiple offenses, the court may require the offender to serve the prison

       terms consecutively if the court finds that the consecutive service is

       necessary to protect the public from future crime or to punish the offender

       and that consecutive sentences are not disproportionate to the seriousness

       of the offender's conduct and to the danger the offender poses to the public,

       and if the court also finds any of the following:

              (a) The offender committed one or more of the multiple offenses

       while the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code, or was under post-release control for a prior offense.

              (b) At least two of the multiple offenses were committed as part of

       one or more courses of conduct, and the harm caused by two or more of

       the multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the courses

       of conduct adequately reflects the seriousness of the offender's conduct.

              (c) The offender's history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.

       {¶ 15} The record reflects that the court considered the factors set forth in R.C.

2929.11 and R.C. 2929.12. It was significant to the court that K.P.’s relationship with Perry

facilitated the offense, in that he lured her to the scene of the shooting, and that she

suffered serious physical, psychological, and economic harm. R.C. 2929.12(B)(2),(6).

It was further significant to the court that Perry has a history of criminal convictions, that
                                                                                          -15-


he has not responded favorably to sanctions previously imposed, and that he lacked

remorse. R.C. 2929.12(D)(2),(3),(5).

       {¶ 16} The maximum sentence for Perry’s felonious assault offense, a felony of

the second degree, is eight years, and it is a mandatory sentence. R.C. 2929.14(A)(2),

R.C. 2929.13(F)(6). The maximum sentence for having weapons while under disability, a

third degree felony, is 36 months.       R.C. 2929.14(A)(3)(b). Perry was subject to a

mandatory three-year sentence for the firearm specification. R.C. 2929.14(B)(1)(a)(ii).

Finally, he was subject to a mandatory term of one to ten years for the repeat violent

offender specification.    R.C. 2929.14(B)(2)(a)(i). Perry’s sentences are within the

applicable statutory ranges.

       {¶ 17} R.C. 2929.14(B)(2)(d) requires that the sentence imposed on the repeat

violent offender specification be served “consecutively to and prior to the prison term

imposed for the underlying offense.” R.C. 2929.14(C)(1)(a) requires that the sentence

on the firearm specification be served “consecutively to and prior to any prison term

imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section

or any other section of the Revised Code, and consecutively to any other prison term or

mandatory prison term previously or subsequently imposed upon the offender.”

       {¶ 18} We note that Perry’s felonious assault and having weapons while under

disability offenses are not subject to merger. State v. Grissom, 2d Dist. Montgomery No.

25750, 2014-Ohio-857, ¶ 44 (noting that it is defendant’s burden to prove entitlement to

merger, and that where the record is devoid of evidence establishing that the defendant

acquired the weapon with an immediate intent to fire it at the victim and had no other

reason for possessing the weapon, that burden is not satisfied).
                                                                                       -16-


       {¶ 19} In imposing consecutive sentences for felonious assault and having

weapons while under disability, the record reflects that the court made the findings

required by R.C. 2929.14(C)(4). Having reviewed the record, we cannot clearly and

convincingly find that it does not support those findings.    As the court found, Perry

committed felonious assault and having weapons while under disability as part of one or

more courses of conduct, and the record supports the finding that the harm to K.P. was

so great that no single prison term for the offenses would adequately reflect the

seriousness of Perry’s conduct; K.P. was shot five times, she required abdominal surgery,

bullets remain in her spine causing ongoing medical problems and pain, she suffers from

PTSD as a result of the incident, and she is unable to work. Perry’s criminal history

supports the court’s finding that consecutive sentences are necessary to protect the

public from future crime by Perry; as reflected in Perry’s indictment and pre-sentence

investigation report, Perry was convicted of attempted murder in 1997. He has a lengthy

misdemeanor record including criminal possession of a controlled substance, domestic

violence, drug abuse, menacing and possession of drugs. In 1994 he was sentenced to

prison for criminal possession of a controlled substance, a felony of the third degree. We

note that at the sentencing hearing Perry admitted that he was selling drugs at the time

of the incident.

       {¶ 20} Finally, Perry’s arguments that his mental illness mitigates the seriousness

of the offenses, and that K.P. essentially put herself in harm’s way by associating with

him and other drug dealers, and by pursuing him to Dayton despite her suspicion that

“something was going on,” lack merit. The court indicated that it considered the medical

records provided by Perry (for the first time prior to sentencing at the conclusion of his
                                                                                       -17-


second trial) but determined that they were outdated. K.P.’s allegedly poor judgment in

associating with Perry does not make less serious the fact that Perry lured her, a mother

of three, to Dayton, thereafter firing multiple shots at her as she attempted to leave the

scene, causing serious physical, psychological and economic harm and ongoing health

problems and pain. Finally, we conclude that since Perry’s sentences are authorized by

statute and supported by the record, they do not constitute cruel and unusual punishment.

      {¶ 21} For the foregoing reasons, Perry’s assigned error lacks merit, and it is

overruled. The judgment of the trial court is affirmed.

                                      ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Kirsten A. Brandt
Lori R. Cicero
Hon. Steven K. Dankof
