[Cite as State v. Williams, 2020-Ohio-3682.]




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

                                                     :
 STATE OF OHIO                                       :
                                                     :   Appellate Case No. 28567
         Plaintiff-Appellee                          :
                                                     :   Trial Court Case No. 2019-CR-1400
 v.                                                  :
                                                     :   (Criminal Appeal from
 LASTAN’LE BERNARD WILLIAMS,                         :    Common Pleas Court)
 JR.                                                 :
                                                     :
         Defendant-Appellant


                                                ...........

                                               OPINION

                              Rendered on the 10th day of July, 2020.

                                                ...........

MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
     Attorney for Defendant-Appellant

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



FROELICH, J.
                                                                                        -2-




       {¶ 1} Lastan’le Bernard Williams Jr. pled no contest to felonious assault in the

Montgomery County Court of Common Pleas.            In exchange for the plea, the State

dismissed two other charges and firearm specifications. The trial court found him guilty

and imposed seven years in prison, to be served consecutively to a sentence previously

imposed in Warren County.

       {¶ 2} Williams appeals from his conviction, challenging the length of his sentence

and the imposition of consecutive sentences. For the following reasons, the trial court’s

judgment will be affirmed.

                             I. Factual and Procedural History

       {¶ 3} The presentence investigation report (PSI) and the complainant’s statements

at the sentencing hearing reveal the following facts.

       {¶ 4} In 2016, while students at Sinclair Community College, Dennis Boddie met

Williams, and the two became friends. Around 2018, Williams lost his housing when the

person with whom he was staying asked him to leave. For a time, Boddie allowed

Williams to stay with him, against Boddie’s roommate’s wishes. In June 2018, Williams’s

live-in girlfriend contacted Boddie and told him that Williams had been acting differently.

The girlfriend asked Boddie if he would speak with Williams.

       {¶ 5} On June 24, 2018, Boddie contacted Williams, and they agreed to meet and

smoke marijuana. In the afternoon, the two men met and started walking toward a store.

Approximately one block from the store, Boddie turned and saw Williams pointing a gun

at him. Williams fired two rounds, one of which struck Boddie’s leg around his right knee.

Boddie turned his body and closed his eyes. Williams continued to fire, but the gun
                                                                                        -3-


jammed. When Boddie opened his eyes, he saw Williams running down the street.

Williams yelled to Boddie, “Next time, I will kill your b*tch ass.”

       {¶ 6} At 3:34 p.m., Dayton police officers were dispatched to Boddie’s location on

the report of a shooting. They found Boddie with a single gunshot wound to his leg. At

that time, Boddie reported that he was shot by an unknown individual while walking home

from the store. Boddie stated that he had started running when he saw the gun. When

medics arrived, they transported Boddie to the hospital, where he was treated for his

injury. The police discovered three spent shell casings at the scene. Officers later

interviewed Boddie, who described the weapon that had been used.

       {¶ 7} On April 23, 2019, ten months later, Boddie went to the police department

and reported that he had not been honest about the June shooting. Boddie told an officer

what had actually occurred, described Williams, and produced a photograph of Williams

using the Ohio Department of Rehabilitation and Correction website.

       {¶ 8} In July 2019, Williams was indicted on three counts: (1) felonious assault, a

felony of the second degree, with a firearm specification, (2) discharging a firearm on or

near prohibited premises, a felony of the second degree, with a firearm specification, and

(3) having weapons while under disability, a felony of the third degree.          Williams

subsequently pled no contest to felonious assault. The State dismissed the remaining

two counts and all specifications.

       {¶ 9} After a presentence investigation, the trial court sentenced Williams to seven

years in prison. The court ordered the sentence to be served consecutively to the 18-

month sentence Williams had received in Warren C.P. No. 18CR34528. At the time of

Williams’s conviction in this case, he had approximately four months remaining on his
                                                                                         -4-


Warren County sentence.

       {¶ 10} Williams challenges his sentence on appeal.

                           II. Sentence for Felonious Assault

       {¶ 11} In his first assignment of error, Williams claims that his sentence was

“excessive” and unsupported by the record.

       {¶ 12} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. 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. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,

2017-Ohio-4097, ¶ 6.

       {¶ 13} “The trial court has full discretion to impose any sentence within the

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.

       {¶ 14} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the
                                                                                         -5-


offender and others, to punish the offender, and to promote the effective rehabilitation of

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 three 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.”

       {¶ 15} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

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

constituting the offense. 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, if any.

       {¶ 16} According to the PSI, Williams was 24 years old when the shooting occurred

and 25 years old at sentencing. He had completed high school and one year of college;

while in high school, he was suspended for fighting, but not expelled. Williams had work

experience, with his longest period of employment being one year. Williams reported no

current physical or mental health issues, but he indicated that he sustained a significant
                                                                                      -6-


head injury after a car accident in March 2017 and was diagnosed with ADHD as a child.

Williams reported that he last used alcohol in 2015 and last used marijuana in 2016;

Williams reported no other drug usage.

      {¶ 17} Williams’s criminal history consisted of two misdemeanor and three felony

adult convictions; Williams had no juvenile record. His two misdemeanor offenses were

reckless operation of a motor vehicle (age 21) and theft (age 23).

      {¶ 18} As for his felony record, in November 2013, Williams (age 19) was convicted

in North Carolina of “accessory after the fact common law robbery”; the court sentenced

him to 6 to 17 months in prison, with 151 days credit for time served, plus two years of

supervised probation.    In January 2017 (age 22), he was convicted in Montgomery

County, Ohio, of having weapons while under disability, for which he received community

control. Williams was arrested twice while on community control, and in May 2017,

Williams was ordered to participate in the Secure Transition Offender Program (STOP).

Williams was removed from STOP “after making threats and acting violent toward another

resident.” Williams’s supervision term was ultimately terminated in November 2018 as

“incomplete” due to his conviction in Warren County.

      {¶ 19} On November 16, 2018, Williams (age 24) was convicted in Warren County

for having weapons while under disability and improper handling of a firearm in a motor

vehicle; the court imposed 18 months in prison with 121 days of jail time credit. The

online docket in the Warren County case suggests that the Warren County offenses

occurred in July 2018, shortly after the June 24, 2018 shooting in this case.

      {¶ 20} Boddie spoke at the sentencing hearing.         He stated that he was “in

complete disbelief” that Williams, to whom Boddie had been a good friend, would shoot
                                                                                         -7-


him. Boddie indicated that he was shot in the leg, and “[t]he doctor said I was lucky that

my kneecap didn’t get blown off.” Boddie told the court that Williams “would’ve killed

me.” Boddie also had spoken to the PSI investigator, stating that the shooting had

caused him to be unable to work for three months, resulting in a loss of housing. He also

could not attend school for a semester, leaving him with certain educational expenses.

Boddie expressed that he did not trust people any more, and some family members

distanced themselves from Boddie because they were afraid of Williams.              Boddie

requested a maximum sentence for Williams.

       {¶ 21} At the sentencing hearing, the trial court indicated that it had reviewed the

PSI and had considered “the purposes and principles of sentencing, [and] the seriousness

and recidivism factors of the Ohio Revised Code including using the minimum sanctions

to accomplish those purposes without unnecessarily burdening governmental resources.”

The trial court noted that Williams had, “starting from 2013, accessory to robbery in North

Carolina, come to Montgomery County, weapons charge 2016; additional weapon charge

in 2018 in which [Williams was] serving 18 months CRC from Warren County Common

Pleas. And now we have a felonious assault with an intent to kill.” The court imposed

seven years in prison for the felonious assault.

       {¶ 22} Williams argues that the trial court “may not have fully considered all

relevant factors.” He asserts that Boddie was not hurt badly and that he (Williams) was

remorseful and willing to accept responsibility for his actions.

       {¶ 23} The imposed prison sentence was within the statutory range for a felony of

the second degree, and the record reflects that the trial court complied with its obligation

to consider R.C. 2929.11 and R.C. 2929.12, even though it did not orally discuss each
                                                                                        -8-


factor. The trial court’s seven-year sentence for felonious assault was not contrary to

law

      {¶ 24} Williams had prior felony offenses, including gun-related offenses, and had

previously been sentenced to prison. Williams had shown aggressive behavior in high

school and while on community control. In committing the felonious assault, Williams

shot Boddie in the leg, and there is nothing in the record to demonstrate remorse on

Williams’s part. Williams pled no contest to the offense, and he made no statement

about the offense to the PSI investigator or to the court at sentencing.        The gun’s

jamming appears to have been the only thing that prevented Williams from fatally shooting

Boddie on June 24, 2018, and Williams told Boddie immediately after the shooting that

he (Williams) would kill him (Boddie) the next time.      As part of his plea, the State

dismissed additional counts and firearm specifications.      With the record before us,

Williams’s sentence was not clearly and convincingly unsupported by the record.

      {¶ 25} Williams’s first assignment of error is overruled.

                             III. Consecutive Sentencings

      {¶ 26} In his second assignment of error, Williams claims that “[t]he record does

not support consecutive sentences.”

      {¶ 27} In general, it is presumed that prison terms will be served concurrently. R.C.

2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16,

23 (“judicial fact-finding is once again required to overcome the statutory presumption in

favor of concurrent sentences”). However, after determining the sentence for a particular

crime, a sentencing judge has discretion to order an offender to serve individual counts

of a sentence consecutively to each other or to sentences imposed by other courts. R.C.
                                                                                       -9-


2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that (1)

consecutive sentencing is necessary to protect the public from future crime or to punish

the offender, (2) consecutive sentences are not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public, and (3) any of the

following applies:

       (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.

       {¶ 28} In imposing consecutive sentences, the trial court made the required

statutory findings.   The court found, both orally and in its judgment entry, that

consecutive sentences were necessary to protect the public or to punish Williams and

that consecutive sentences were not disproportionate to the seriousness of his conduct

and to the danger that he posed to the public. Lastly, the court found that Williams’s

history of criminal conduct demonstrated that consecutive sentences were necessary to
                                                                                          -10-


protect the public from future crime by him.

       {¶ 29} On appeal, Williams argues that the trial court erred in relying on his criminal

history alone to support both the finding that consecutive sentences were necessary to

protect the public from future crime and the finding under R.C. 2929.14(C)(4)(c) that his

history of criminal conduct demonstrated that consecutive sentences were necessary.

He points to State v. Corti, 11th Dist. Lake No. 2016-L-129, 2018-Ohio-903, which

discussed the interplay of those two findings, stating:

              Finally, appellant argues that R.C. 2929.14(C) is redundant in that

       the need to protect the public from the defendant’s future crimes is

       mentioned twice in the statute, first, as one of the two required findings for

       consecutive sentences in R.C. 2929.14(C)(4), and, second, as one of the

       three alternative findings in R.C. 2929.14(C)(4)(c). While there is some

       overlap in the statute, these two findings are not identical. Pursuant to R.C.

       2929.14(C)(4), the court was required to find consecutive sentencing is

       necessary to protect the public from future crime.            In contrast, the

       alternative finding in R.C. 2929.14(C)(4)(c) requires the court to find that the

       offender’s criminal history shows that consecutive sentencing is necessary

       to protect the public.   The language concerning the offender’s criminal

       history is not included in R.C. 2929.14(C)(4), while it is included in R.C.

       2929.14(C)(4)(c). This distinction shows that R.C. 2929.14(C)(4) can be

       demonstrated by something other than the offender’s criminal history.

Corti at ¶ 33. Based on Corti, Williams claims that there must be some evidence other

than a defendant’s criminal history to support the imposition of consecutive sentences
                                                                                         -11-


when relying on R.C. 2929.14(C)(4)(c). He states that, because the trial court relied on

his criminal history alone to support its findings, the imposition of consecutive sentences

was contrary to law.

       {¶ 30} Here, the record does not indicate that the trial court considered only

Williams’s criminal history in imposing consecutive sentences. The trial court stated at

the sentencing hearing that it had reviewed the PSI, not just Williams’s criminal history,

and it did not detail the bases for its consecutive sentencing findings.

       {¶ 31} Moreover, the trial court’s findings were not clearly and convincingly

unsupported by the record. Beginning with the finding under R.C. 2929.14(C)(4)(c),

Williams’s criminal history began in late 2013 with a conviction for being an accessory to

a robbery, for which he received a prison sentence.           He completed his probation

supervision for that offense in December 2015. Later, Williams twice was convicted of

having weapons while under disability, including in Warren County where he faced

several gun charges. The record thus shows an ongoing history of gun-related offenses

and two prison sentences within a five-year period. Therefore, we cannot say that the

record clearly and convincingly fails to support the trial court's finding under R.C.

2929.14(C)(4)(c).

       {¶ 32} As for the trial court’s finding that consecutive sentences were necessary to

protect the public from future crime, the court reasonably could have considered

Williams’s criminal history, particularly the repeated gun-related offenses, in its analysis.

Assuming for sake of argument that additional information was required, the record also

reflects that Williams had a history of threats and aggression that appeared to be

escalating. Williams was suspended for fighting while in high school. When Williams
                                                                                      -12-


participated in the STOP program while on community control for a prior offense, he was

removed from the program due to threats and “acting violent” toward another resident of

the program. In committing the instant felonious assault, Williams assaulted a friend for

no apparent reason and threatened to kill Boddie “the next time.” When asked for his

version of the incident, Williams responded, “No comment,” and never expressed remorse

for his actions. We cannot conclude that the record clearly and convincingly fails to

support a finding that consecutive sentences were necessary to protect the public from

future crimes and punish the offender.

       {¶ 33} Williams does not challenge the trial court’s finding that consecutive

sentences were not disproportionate to the seriousness of the offender’s conduct and to

the danger the offender poses to the public. Regardless, there is support in the record

for this finding as well.

       {¶ 34} Williams’s second assignment of error is overruled.

                                     IV. Conclusion

       {¶ 35} The trial court’s judgment will be affirmed.

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



HALL, J. and WELBAUM, J., concur.


Copies sent to:

Mathias H. Heck, Jr.
Jamie J. Rizzo
Ben M. Swift
Hon. Gerald Parker
