[Cite as State v. Ledford, 2017-Ohio-149.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2016-04-021
        Plaintiff-Appellant,                        :
                                                                OPINION
                                                    :            1/17/2017
    - vs -
                                                    :

JASMINE LEDFORD,                                    :

        Defendant-Appellee.                         :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2014 CR 0259



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellant

W. Stephen Haynes and Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103,
for defendant-appellee



        S. POWELL, P.J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the decision of the Clermont

County Court of Common Pleas granting judicial release to defendant-appellee, Jasmine

Ledford. For the reasons outlined below, we affirm.

        {¶ 2} On May 1, 2014, the Clermont County Grand Jury returned a 17-count

indictment charging Ledford with attempted aggravated murder, attempted murder, six counts
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of aggravated robbery, six counts of felonious assault, two counts of aggravated burglary,

and tampering with evidence. The charges stemmed from her involvement with a home-

invasion, robbery, and assault of three unsuspecting individuals, one of whom Ledford knew

to be a drug dealer. At the time of the offense, Ledford was just 21 years old.

       {¶ 3} On July 30, 2014, Ledford entered into a plea agreement and pled guilty to one

count of aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony. In

exchange for her guilty plea, all other charges against Ledford were dismissed.

       {¶ 4} On May 26, 2015, the trial court held a sentencing hearing. At that hearing,

Ledford's trial counsel provided comprehensive mitigating evidence that included reference to

Ledford's young age, her minimal prior criminal history, her expressed remorse for her

conduct, her lengthy incarceration prior to her sentencing hearing, and her substantial mental

health issues. Nevertheless, upon finding Ledford's conduct to be "more serious than a

typical case of this nature in that you knew the victim," the trial court sentenced Ledford to

serve four years in prison. The trial court also ordered Ledford to pay court costs and $2,639

in restitution.

       {¶ 5} On December 8, 2015, after serving approximately six months in prison,

Ledford filed a motion for judicial release. Several months later, on March 22, 2016, the trial

court held a hearing on Ledford's motion. At that hearing, the parties each presented

evidence in support of their respective positions. This included evidence that Ledford had

then been incarcerated for over two years, that she was not the prime defendant or main

offender of the crime, that she cooperated with the state in the prosecution of her co-

defendants, that she had been receiving treatment for her substantial mental health issues,

and that her mother and step-father had agreed to take her in and ensure that she receives

that treatment. The trial court also heard evidence that Ledford had taken steps to obtain her

GED and to get a job in order to pay her court costs and court-ordered restitution.
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       {¶ 6} After hearing this evidence, the trial court entered a decision granting Ledford's

motion for judicial release. As part of this decision, although acknowledging that it had

previously determined that Ledford's conduct was "more serious" at her sentencing hearing,

the trial court now found Ledford's release from prison and placement on community control

would not demean the seriousness of the offense because "factors indicating [her] conduct in

committing the offense was less serious than conduct normally constituting the offense

outweigh factors indicating that [her] conduct was more serious than conduct normally

constituting the offense."

       {¶ 7} In support of this decision, the trial court determined that Ledford "did not cause

or expect to cause any physical harm to any person or property" in the commission of the

offense and further noted Ledford's "numerous" mental health issues. The trial court also

noted that Ledford was "not the prime defendant in this case," nor the "main offender."

Concluding, the trial court stated its belief that "the additional service of two years in prison

followed by judicial – or post-release control that this Court can and will exercise more

control, more supervision over the Defendant than the State prison system or the Adult

Parole Authority." The trial court then ordered Ledford be subject to five years of community

control in an intensive treatment program supervised by the adult probation department.

       {¶ 8} The state appeals from the trial court's decision to grant Ledford judicial

release, raising the following single assignment of error for review:

       {¶ 9} THE TRIAL COURT ERRED IN GRANTING APPELLEE JUDICIAL RELEASE

AS ITS FINDINGS UNDER SECTION 2929.20(J) WERE CLEARLY AND CONVINCINGLY

NOT SUPPORTED BY THE RECORD.

       {¶ 10} In its single assignment of error, the state argues the trial court erred by

granting Ledford judicial release. We disagree.

       {¶ 11} In accordance with R.C. 2953.08(B)(3), the state may appeal as a matter of
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right a trial court's decision to grant judicial release to an offender sentenced for a felony of

the first or second degree. State v. Nichter, 10th Dist. Franklin No. 15AP-40, 2015-Ohio-

3489, ¶ 5. The standard of review applied by an appellate court in reviewing a trial court's

decision to grant judicial release is found in R.C. 2953.08(G)(2). State v. Nichter, 10th Dist.

Franklin No. 15AP-886, 2016-Ohio-7268, ¶ 15. Pursuant to that statute, an appellate court

may modify or vacate a 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." State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, ¶ 1. This is an "extremely deferential" standard of review for the restriction is on

the appellate court, not the trial judge. State v. Geldrich, 12th Dist. Warren No. CA2015-11-

103, 2016-Ohio-3400, ¶ 6.

       {¶ 12} Judicial release is governed by R.C. 2929.20. State v. Baker, 12th Dist. Fayette

No. CA2000-01-002, 2000 WL 744632, *1 (June 5, 2000). As applicable here, R.C.

2929.20(J)(1) provides:

              A court shall not grant a judicial release under this section to an
              eligible offender who is imprisoned for a felony of the first or
              second degree * * * unless the court, with reference to factors
              under section 2929.12 of the Revised Code, finds both of the
              following:

              That a sanction other than a prison term would adequately
              punish the offender and protect the public from future criminal
              violations by the eligible offender because the applicable factors
              indicating a lesser likelihood of recidivism outweigh the
              applicable factors indicating a greater likelihood of recidivism;

              That a sanction other than a prison term would not demean the
              seriousness of the offense because factors indicating that the
              eligible offender's conduct in committing the offense was less
              serious than conduct normally constituting the offense outweigh
              factors indicating that the eligible offender's conduct was more
              serious than conduct normally constituting the offense.

       {¶ 13} Pursuant to R.C. 2929.12(A), the trial court may consider any relevant factors


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necessary to achieve the purposes and principles of sentencing. Thus, in accordance with

R.C. 2953.08(G)(2), the applicable standard of review this court must apply is whether the

record does not clearly and convincingly support the trial court's findings made pursuant to

R.C. 2929.20(J) or whether the decision is otherwise contrary to law. "The term clear and

convincing evidence means that '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. Sanders, 12th Dist.

Butler No. CA2001-03-068, 2002 WL 471172, *1 (Mar. 29, 2002), quoting Cross v. Ledford,

161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶ 14} The state does not argue that the trial court's decision to grant Ledford judicial

release was contrary to law, nor does the state raise any argument as it relates to the trial

court's findings under R.C. 2929.20(J)(1)(a). Rather, the state argues the record does not

support by clear and convincing evidence the trial court's findings it made under R.C.

2929.20(J)(1)(b) in regards to the seriousness of Ledford's conduct. Specifically, the state

argues it was improper for the trial court to grant Ledford's motion for judicial release upon

finding her release would not demean the seriousness of the offense because "factors

indicating [her] conduct in committing the offense was less serious than conduct normally

constituting the offense outweigh factors indicating that [her] conduct was more serious than

conduct normally constituting the offense," when the trial court had previously determined

that Ledford's conduct was "more serious than a typical case of this nature" at her sentencing

hearing.

       {¶ 15} This exact issue was addressed by the Third District Court of Appeals in State

v. Edwards, 3d Dist. Marion No. 9-04-67, 2005-Ohio-2246. In that case, the state argued

that "since the trial court indicated that the offense was more serious at the original

sentencing hearing, no other conclusion can be reached [at a subsequent hearing on a

motion for judicial release]." Id. at ¶ 7. The Third District disagreed with this argument and
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held that a hearing on a motion for judicial release "is a new hearing which requires by

statute a new evaluation of the factors." Id. In so holding, the Third District further stated:

              The parties each presented evidence of various factors to the
              trial court. The weight to be given each of the factors is within
              the sound discretion of the trial court. Since each party
              presented factors, this court cannot find as a matter of law the
              trial court cannot make a finding that the offense is less serious
              than others.

Id.

       {¶ 16} We agree with the Third District's holding in Edwards and similarly conclude

that a hearing on a motion for judicial release is a new hearing that requires by statute a new

evaluation of the factors, regardless of the trial court's earlier findings under R.C. 2929.12(B)

and (C) as to the seriousness of the offense. To hold otherwise would effectively negate any

potential for judicial release in cases where an otherwise "eligible offender" was found to

have committed conduct that was more serious than the conduct normally constituting the

offense at a prior sentencing hearing. That is clearly not what the General Assembly

intended for there would be no need for the trial court to make any findings regarding the

seriousness of the offense at a subsequent judicial release hearing in accordance with R.C.

2929.20(J)(1)(b). The General Assembly could have also easily excluded persons who were

found to have committed a more serious offense at sentencing from its definition of "eligible

offender" who could move for judicial release if it had intended such a result. The General

Assembly did not provide such a restriction, and neither shall we. See R.C. 2929.20(A)(1)

(defining the term "eligible offender" for purposes of judicial release).

       {¶ 17} Moreover, due to the fundamental nature of the passage of time, it should go

without saying that the seriousness factors contained in R.C. 2929.12(B) and (C) that the trial

court balances at a defendant's sentencing hearing generally go unchanged when

addressing a subsequent eligible offender's motion for judicial release. However, as noted


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by the Second District Court of Appeals in State v. Grilliot, 2d Dist. Darke No. 99CA1485,

1999 WL 812351, (Sept. 24, 1999), when addressing such a motion, "the trial court [is]

authorized to look beyond the seriousness factors and the recidivism factors in determining

whether to exercise its discretion in favor of judicial release." Id. at *3. In reaching this

decision, the Second District stated:

              It is clear from the record that Grilliot's having served 8 months of
              his 4 year sentence-and the lesson learned from that experience-
              is what persuaded the trial judge that Grilliot should be given
              judicial release. The trial court's finding pursuant to R.C.
              2929.20([J])(1)(b) does not fit neatly within the confines of that
              subsection because that subsection requires-and is limited to-a
              balancing of the seriousness factors that is favorable to Grilliot.
              That didn't happen in this case and we are hard pressed to
              imagine a situation where it would. The trial court balances the
              seriousness factors at sentencing. Those factors, which are
              rooted in the facts of the case at hand, don't change over time.
              Thus, a balancing unfavorable to the defendant at the time of
              sentencing will perforce be unfavorable when judicial release is
              sought. Thus, judicial release would not be possible unless the
              trial court may consider "any other relevant factors." Where
              other factors are considered, however, the precise finding
              required by the strict wording of R.C. 2929.20([J])(1)(b) cannot
              be made. However, reading R.C. 2929.20([J])(1)(b) together with
              R.C. 2929.12(A), we believe the trial court's finding satisfies the
              spirit, if not the letter, of R.C. 2929.20([J])(1)(b). We likewise
              conclude that the trial court's finding is in keeping with these two
              subsections, which-pursuant to R.C. 2929.20([J])(1)-are to be
              read together.

Id. at *4.

        {¶ 18} With these principles in mind, and after a thorough review of the record, we

simply cannot say that the record does not support by clear and convincing evidence the trial

court's findings it made under R.C. 2929.20(J)(1)(b) in deciding to grant Ledford's motion for

judicial release. For instance, the record contains some evidence, albeit from Ledford

herself, to support the trial court's findings that Ledford did not cause or expect to cause any

physical harm to any person or property in the commission of the offense. The record also

contains evidence that Ledford had been battling substantial mental health issues that would
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be better served through treatment outside of the prison system. There was additional

evidence in the record that Ledford's mother and step-father planned to take her in and see

that she receives her necessary treatment, that Ledford had taken steps to obtain her GED,

as well evidence as that Ledford planned to get a job in order to pay her court costs and the

court-ordered restitution.

       {¶ 19} In light of the foregoing, while this court may not have reached the same

decision, we find it necessary to again note that R.C. 2953.08(G)(2), which provides the

standard of review this court applies in reviewing a trial court's decision to grant judicial

release, is "extremely deferential" to the trial court. The trial court is in the best position to

assess whether the facts of this case support granting judicial release pursuant to R.C.

2929.20. The trial court also has the discretion to determine the most effective way to

comply with the purposes and principles of sentencing. State v. Linz, 12th Dist. Clermont No.

CA2008-05-052, 2009-Ohio-1652, ¶ 14. Therefore, because we can find no error in the trial

court's decision to grant Ledford's motion for judicial release, the state's single assignment of

error is without merit and overruled.

       {¶ 20} Judgment affirmed.


       RINGLAND and HENDRICKSON, JJ., concur.




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