[Cite as State v. Chandler, 2016-Ohio-2713.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2015CA00067
ANTHONY R. CHANDLER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Trial Court Case No.
                                               14CR879


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 21, 2016




APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


KENNETH W. OSWALT                              JUSTIN M. FOX
Licking County Prosecutor                      5 East Long Street, Suite 603
                                               Columbus, Ohio 43215
By: Bryan R. Moore
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2015CA00067                                                       2

Hoffman, J.


       {¶1}   Defendant-appellant Anthony R. Chandler appeals his sentence entered by

the Licking County Court of Common Pleas, on one count of abduction, two counts of

domestic violence, and one count of resisting arrest, after he pled guilty to the charges.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 23, 2014, Newark Police Officers responded to 83 ½ Mound

Court in Newark, Licking County, Ohio, on a report of a domestic disturbance. The victim,

Alyssa Burns, was waiting on the front porch when the officers arrived. Burns informed

the officers Appellant, her live-in boyfriend, had escalated a verbal argument into a violent

encounter. Burns detailed the assault, telling the officer Appellant had hit her in the face,

threw a can of alcohol at her, slammed her head into a wall, threw her down a flight of

stairs, and spit in her face. The officers were unable to locate Appellant, who had fled

from the residence. Appellant’s sister, who lives next door, witnessed the assault and

verified Burns’ account. As a result of the assault, Burns suffered a sprained ankle and

scrapes on her hands.

       {¶3}   On January 2, 2015, Newark Police Officers were again dispatched to 83 ½

Mound Court after Appellant’s sister placed a 911 call, reporting Appellant was assaulting

Burns. Appellant’s sister stated Appellant had trapped Burns inside a bedroom in the

apartment by closing the door, holding her at knife point, and threatening to kill her. The

officers arrived and found the front door to the apartment open. They heard a woman

crying and screaming and a man yelling at the woman for calling the police.             The

screaming and yelling was coming from behind a closed door, which the officers kicked
Licking County, Case No. 2015CA00067                                                        3


in. Inside the room, the officers observed Burns pinned against a wall while Appellant

held her at knife point. The officers ordered Appellant to drop the knife and show his

hands. Appellant refused to comply. Although the officers tazed Appellant twice, he still

refused to comply. Three officers were needed to take Appellant down. Burns had visible

red marks on her neck. She informed the officers Appellant had choked her to the point

she almost lost consciousness. Burns was so terrified during the attack she urinated on

herself.

       {¶4}   On January 22, 2015, the Licking County Grand Jury indicted Appellant on

one count of abduction, in violation of R.C. 2905.02(A)(2), a felony of the third degree;

two counts of domestic violence, in violation of R.C. 2919.25(A), misdemeanors of the

first degree; and one count of resisting arrest, in violation of R.C. 2921.33(A), a

misdemeanor of the second degree.          Appellant entered a plea of not guilty at his

arraignment on January 27, 2015.

       {¶5}   Appellant appeared before the trial court on August 24, 2015, and advised

the trial court he wished to withdraw his former plea of not guilty and enter a plea of guilty

to all of the charges. The state advised the trial court the parties had entered into plea

negotiations which resulted in a joint agreement. The parties recommended Appellant be

sentenced to 180 days in jail with credit for time served, the sentence be suspended for

two years with Appellant being placed on community control, and Appellant be given

work-release while he served his remaining 49 days in jail. The trial court told the parties

it would not follow the joint recommendation based upon its review of the pre-sentence

investigation report and the facts of the case. The trial court then inquired of Appellant if

he still wished to enter a guilty plea. Appellant informed the trial court he would proceed
Licking County, Case No. 2015CA00067                                                     4


with the plea despite the trial court’s indication it would not follow the parties’ joint

recommendation.       The trial court conducted a Crim. R. 11 colloquy with Appellant,

accepted Appellant's plea, and found him guilty of the four counts contained in the

Indictment. The trial court sentenced Appellant to an aggregate term of imprisonment of

30 months.     The trial court memorialized Appellant’s conviction and sentence via

Judgment of Conviction and Sentence filed August 24, 2015.

       {¶6}   Appellant appeals his sentence, raising as his sole assignment of error:

       {¶7}   “I.     THE    TRIAL     COURT        VIOLATED      THE       APPELLANT’S

CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT SENTENCED

THE APPELLANT TO 30 MONTHS, A NEAR MAXIMUM PENALTY.”

                                                I

       {¶8}   Appellant’s argument is two-fold. First, Appellant contends the trial court

abused its discretion when it rejected the joint recommendation of the parties prior to

hearing the parties’ arguments.      Next, Appellant submits the trial court abused its

discretion in sentencing Appellant to a 30 month term of imprisonment as such was

greatly excessive under the traditional concepts of justice. We disagree.

       {¶9}   A trial court is not bound by a plea agreement unless there has been active

participation by the trial court in the agreement. State v. Hartrum, Licking App. No. 2014

CA 00106, 2015 -Ohio- 3333. Such participation was not present sub judice. “If we

accept appellant's argument, we would be abrogating the constitutional right of the trial

court to determine the appropriate sentence. It would abrogate the separation of powers

doctrine if the state was permitted to force a particular sentence upon a trial court.” Id.

(Citation omitted).
Licking County, Case No. 2015CA00067                                                           5


       {¶10} After being informed of the parties’ joint recommendation, the trial court

unequivocally stated it would not follow the recommendation and provided Appellant with

time to decide if he still wished to enter a guilty plea. Despite the forewarning, Appellant,

nonetheless, chose to enter his plea. The trial court then conducted a Crim. R. 11

colloquy during which it repeated it would not follow the joint recommendation and

advised Appellant of the range of penalties. The trial court sentenced Appellant within the

statutorily authorized range. A trial court does not err by imposing a sentence greater than

a sentence recommended by the State when the trial court forewarns the defendant of

the range of penalties which may be imposed upon conviction. State v. Buchanan, 154

Ohio App.3d 250, 2003–Ohio–4772, 796 N.E.2d 1003. We find the trial court did not

abuse its discretion in rejecting the joint recommendation.

       {¶11} Appellant further asserts the trial court abused its discretion in sentencing

him to a 30 month term of imprisonment, which he maintains is greatly excessive.

       {¶12} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶ 4, the Supreme

Court of Ohio set forth the following two-step approach an appellate court must undertake

when reviewing a sentence: “First, they must examine the sentencing court's compliance

with all applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial

court's decision shall be reviewed under an abuse-of-discretion standard.” In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983). Our standard of review was reaffirmed by this Court

in State v. Bailey, 5th Dist. Ashland No. 14–COA–008, 2014–Ohio–5129.
Licking County, Case No. 2015CA00067                                                       6


       {¶13} Upon review, we find the trial court's sentencing complies with applicable

rules and sentencing statutes. The sentence was within the statutory sentencing range.

Furthermore, the record reflects the trial court considered the purposes and principles of

sentencing and the seriousness and recidivism factors as required in Sections 2929.11

and 2929.12 of the Ohio Revised Code, and advised Appellant regarding post-release

control. We, therefore, find the sentence was not clearly and convincingly contrary to law.

       {¶14} Having determined the sentence is not contrary to law, we must now review

the sentence pursuant to an abuse of discretion standard. Kalish, supra, at ¶ 4; State v.

Firouzmandi, 5th Dist. No.2006–CA–41, 2006–Ohio–5823 at ¶ 40. In reviewing the

record, we find the trial court gave careful and substantial deliberation to the relevant

statutory considerations.

       {¶15} Where the record lacks sufficient data to justify the sentence, the court may

well abuse its discretion by imposing that sentence without a suitable explanation. Where

the record adequately justifies the sentence imposed, the court need not recite its

reasons. In other words, an appellate court may review the record to determine whether

the trial court failed to consider the appropriate sentencing factors. State v. Robinson, 5th

Dist. Muskingum No. CT2012–0005, 2013–Ohio–2893, ¶ 19–20, citing State v.

Firouzmandi, supra, at ¶ 52.

       {¶16} Accordingly, appellate courts can find an “abuse of discretion” where the

record establishes a trial judge refused or failed to consider statutory sentencing factors.

Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342 (1st Dist.1978). An “abuse of

discretion” has also been found where a sentence is greatly excessive under traditional
Licking County, Case No. 2015CA00067                                                     7


concepts of justice or is manifestly disproportionate to the crime or the defendant.

Woosley v. United States, 478 F.2d 139, 147 (8th Cir.1973).

       {¶17} We find the record does not lack sufficient data to justify the sentence.

Appellant had an extensive criminal history. Appellant held his live-in girlfriend at knife

point and choked her close to unconsciousness. Appellant was so out of control when

the police arrived, they tazed him twice. It took three officers to subdue him. Appellant’s

claimed inability to recollect the events of the evening were due to his use of

methamphetamines, for which he tested positive during the proceedings. Transcript

August 24, 2015 Change of Plea and Sentencing at 29.

       {¶18} Based upon the foregoing, we find the trial court neither abused its

discretion in not following the parties’ joint recommendation nor in sentencing Appellant

to a 30 month term of imprisonment.

       {¶19} Appellant’s sole assignment of error is overruled.

By: Hoffman, J.

Farmer, P.J. and

Wise, J. concur
