[Cite as State v. Powers, 2019-Ohio-3321.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,
                                                          CASE NO. 5-19-01
         PLAINTIFF-APPELLEE,

    v.

MARK A. POWERS,                                           OPINION

         DEFENDANT-APPELLANT.



                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2017 CR 00394

                                      Judgment Affirmed

                            Date of Decision: August 19, 2019



APPEARANCES:

         W. Alex Smith for Appellant

         Steven M. Powell for Appellee
Case No. 5-19-01


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Mark Powers (“Powers”) brings this appeal from

the judgment of the Court of Common Pleas of Hancock County sentencing him to

40 months in prison on two counts of aggravated trafficking in drugs. On appeal

Powers claims that the prosecutor engaged in misconduct by making inflammatory

statements at sentencing. For the reasons set forth below, the judgment is affirmed.

                                 Procedural History

       {¶2} On December 12, 2017, the Hancock County Grand Jury indicted

Powers on two counts of Aggravated Trafficking in Drugs, one a felony of the third

degree and one a felony of the fourth degree. Doc. 1. On October 19, 2018, Powers

changed his plea from not guilty to guilty. Doc. 77. A hearing was held that same

day and the trial court accepted the plea of guilty and set the matter for a sentencing

hearing after the presentence investigation report (“PSI”) was completed. Doc. 83.

       {¶3} A sentencing hearing was held on December 17, 2018. Doc. 94. The

trial court specifically noted that Powers was serving post-release control (“PRC”)

at the time of the new offenses. Id. After reviewing the PSI, listening to the

arguments of the State and Powers, and personally addressing Powers, the trial court

ordered Powers to serve an aggregate prison term of 52 months – 24 months for

Count One, 16 months for Count Two, and one year for violation of PRC. Powers

filed his notice of appeal from this judgment on January 4, 2019. Doc. 99. On

appeal, he raises the following assignment of error

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Case No. 5-19-01


       The prosecutor engaged in prosecutorial misconduct.

                              Prosecutorial Misconduct

       {¶4} The sole assignment of error in this case is that the prosecutor allegedly

engaged in misconduct at the sentencing hearing by making inflammatory

statements. “[T]he standard for prosecutorial misconduct is whether the comments

and/or questions were improper, and, if so, whether they prejudiced appellant's

substantial rights.” State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739

N.E.2d 749. Prosecutorial misconduct is only reversible error if it can be said that

the misconduct deprived the appellant of a fair trial when the entire record is

considered. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).             “[T]he

touchstone of due process analysis in cases of alleged prosecutorial misconduct is

the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455

U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Any effect of an improper

argument made by the State at sentencing can by cured by the trial court’s

independent assessment of the sentencing factors. State v. Lundgren, 73 Ohio St.3d

474, 489, 1995-Ohio-227, 653 N.E.2d 304.

       {¶5} In this case, Powers argues that the allegedly inflammatory statements

made by the prosecutor may have caused the trial court to impose a more severe

sentence than otherwise would have been ordered. At the sentencing hearing the

State requested the maximum sentence be imposed on each of the counts and that

Powers be ordered to serve one year for the PRC violation, all consecutive for an

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Case No. 5-19-01


aggregate prison term of 66 months. Tr. 5. The prosecutor, in supporting his

argument made the following statements.

      Now, what I want to do is address the issues with regard to – to
      the sentence, and that is that the Court’s had the opportunity to
      hear some of the evidence and some of the testimony of officers in
      this case, in suppression hearings, and I – I don’t think anybody
      can deny the fact that the Defendant here is somebody who has
      been a bane in the side of law enforcement, has been known to
      them for some time. He’s able, in the eyes of law enforcement,
      able to evade prosecution on many of the cases; however, he does
      have a history of -- of drug use, drug trafficking, and the Court
      has been able to pick up on that in the [PSI]. Almost all of his
      prior history relates directly to drug trafficking and drug use.
      There are some Municipal Court proceedings that dealt with
      thing like fleeing and eluding and other substance abuse, but with
      respect to his prior history, it’s well known that he has – has had
      issues here in this community.

      ***

      I believe that – I just want to make a – a professional statement.
      This is not one that in the type of hearing we’re in today, I just
      want to say that referring back to earlier comments about being
      a – a bane in the side of law enforcement with respect to these
      hard drugs, that I just – it had been noted, professional statement,
      that the drop-off, there was a huge drop-off in the number of
      overdose deaths after Mr. Powers was incarcerated in this case.
      And as a result, that’s why we are taking the position here that
      this is serious, that it is – he is a threat to the community. I think
      that based on what I have seen and heard, that he’ll – [defense
      counsel] will be requesting community control sanctions, that he’s
      in Tree Line recovery, or something like that. I think that’s awful
      late in the ballgame here. For years, he had that opportunity.
      He’s chosen not to do it, but to continue selling and dealing the –
      the kind of drugs that are killing people here in the community.

      And so based upon that, I’m going to ask the Court to impose a
      maximum sentence on each, to run consecutive, and consecutive


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Case No. 5-19-01


       to that, the PRC violation, or having committed a new violation
       under PRC.

Tr. 5, 8-9. Counsel for Powers objected to the reference by the Prosecutor to the

offenses not before the court. Tr. 10. There is no question that the prosecutor

alleged that the incarceration of Powers reduced the number of overdoses in

Hancock County, inferring that Powers was responsible for several deaths. These

statements were not based upon any evidence in the record, but were just a statement

by the prosecutor. However, there is also no evidence that it affected the decision

of the trial court. Powers admits in his brief that the sentences imposed were within

the statutory ranges and that the sentences imposed were not the maximum sentence.

Appellant’s Brief at 5. Powers only alleges that the alleged misconduct may have

affected the sentence, not that it did. Id.

       {¶6} A review of the record does not support Power’s contention that the

sentence was affected. The record shows that the trial court reviewed the PSI. The

trial court also clearly considered the statutory sentencing factors and addressed

them on the record. Tr. 35-37. The trial court then addressed what considerations

he was making in regards to the length of the sentence.

       But the balance of what do I do is the more difficult part. I would
       agree, [defense counsel], with your statement that based on – I
       understand what the concerns are from the State of Ohio. I
       understand what their belief is that your client has done, or not
       done, as the case may be. I’ve got the charges in front of me that
       I have. I have the information related to me that does have [sic].
       I would agree that I think the State’s request to max Mr. Powers
       on both 36 and the 18 months, I don’t think, based on the

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Case No. 5-19-01


       information contained in the PSI, having considered all of the
       relevant factors, I don’t think that’s appropriate. Okay? I
       understand the request, but I don’t think that’s appropriate
       under the sentencing guidelines.

Tr. 37-38. The trial court specifically indicated that it was only considering the

charges before it and indicated that it did not concur with the recommendations of

the State. This independent assessment of the evidence and the sentencing factors

rebuts Powers’ speculation regarding the effect of the prosecutor’s statements upon

the sentence imposed. As there is no showing of prejudice resulting from the

statements, the assignment of error is overruled.

       {¶7} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Hancock County is affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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