[Cite as State v. O'Neill, 2009-Ohio-6156.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-09-27

        v.

EDWARD R. O'NEILL,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2008 0467

                                       Judgment Affirmed

                          Date of Decision:    November 23, 2009




APPEARANCES:

        James C. King for Appellant

        Jana E. Emerick for Appellee
Case No. 1-09-27


PRESTON, P.J.

       {¶1} Defendant-appellant, Edward R. O’Neill (hereinafter “O’Neill”),

appeals the Allen County Court of Common Pleas’ judgment of sentence. For the

reasons that follow, we affirm.

       {¶2} On January 15, 2009, the Allen County Grand Jury indicted O’Neill

on count one (1) of felonious assault in violation of R.C. 2903.11(A)(1), a second

degree felony; and count two (2) of felonious assault by means of a deadly weapon

in violation of R.C. 2903.11(A)(2), a second degree felony. (Doc. No. 3). On

January 23, 2009, O’Neill was arraigned and entered not guilty pleas to both

counts in the indictment. (Doc. Nos. 3, 8).

       {¶3} On February 17, 2009, following a pre-trial negotiation, O’Neill

withdrew his previously tendered pleas of not guilty and tendered a plea of guilty

to an amended indictment charging him with one (1) count of felonious assault in

violation of R.C. 2903.11(A)(1) and a second degree felony. (Doc. No. 14). The

trial court accepted O’Neill’s guilty plea, ordered that a pre-sentence investigation

(PSI) be completed, and set the matter for a sentencing hearing to be held on

March 25, 2009. (Id.).

       {¶4} On March 25, 2009, the trial court sentenced O’Neill to five (5)

years incarceration. (Doc. No. 16).




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       {¶5} On May 8, 2009, O’Neill filed a motion for leave to file a delayed

appeal with this Court, which we granted on June 18, 2009.

       {¶6} O’Neill now appeals raising one assignment of error for our review.

                           ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN IMPOSING A NON-
       MINIMUM SENTENCE OF IMPRISONMENT AND BY NOT
       IMPOSING COMMUNITY CONTROL WITH THE
       REQUIREMENT OF TREATMENT.

       {¶7} In his sole assignment of error, O’Neill argues that the trial court

erred by not imposing a minimum sentence or community control with alcohol

treatment. In support of this argument, O’Neill points out that most of his prior

offenses are alcohol or drug related; that he had been sober for seven (7) years

prior to the incident; and that he recently began drinking after his mother’s death.

O’Neill also argues that the trial court did not fully consider the applicable statutes

and that its statement that it did so is mere “boiler plate” language. (Appellant’s

Brief at 4).

       {¶8} The State, on the other hand, argues that the trial court considered

the applicable statutes, the PSI, and the victim-impact statement before rendering

its sentence. The State also argues that the trial court’s 5-year sentence is not

contrary to law since O’Neill has been previously incarcerated in Maryland, North

Carolina, and Ohio.       We find no abuse of discretion with the trial court’s

sentence.


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Case No. 1-09-27


        {¶9} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing1 by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law.2 State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,

¶23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶4; State v. Tyson, 3d Dist. Nos.

1-04-38, 1-04-39, 2005-Ohio-1082, ¶19, citing R.C. 2953.08(G).                                Clear and

convincing evidence is 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.” Cross v. Ledford

(1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus; State v.

Boshko (2000), 139 Ohio App.3d 827, 835, 745 N.E.2d 1111. An appellate court

should not, however, substitute its judgment for that of the trial court because the


1
  O’Neill has mistakenly stated that this Court “must find, clearly and convincingly, that the record
supports the sentence and is not contrary to law.” (Appellant’s Brief at 4). That standard is incorrect. The
defendant bears the burden to demonstrate, by clear and convincing evidence, that the sentence is not
supported by the record, that the sentencing statutes’ procedure was not followed, or there was not a
sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. Ramos, 2007-
Ohio-767, at ¶23; Rhodes, 2006-Ohio-2401, at ¶4; Tyson, 2005-Ohio-1082, at ¶19, citing R.C. 2953.08(G).
2
  This Court notes that the Ohio Supreme Court has recently released a plurality opinion on the issue of
whether a clear and convincing standard or an abuse of discretion standard is proper for reviewing felony
sentences under R.C. 2953.08(G). State v. Kalish (2008), 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124. Although this Court utilized our precedential clear and convincing standard, affirmed and adopted by
Kalish’s three dissenting Justices, we would have concluded that O’Neill’s sentence was proper under the
Kalish plurality’s two-step approach as well.


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Case No. 1-09-27


trial court is ‘“clearly in the better position to judge the defendant’s likelihood of

recidivism and to ascertain the effect of the crimes on the victims.”’ State v.

Watkins, 3d Dist. No. 2-04-08, 2004-Ohio-4809, ¶16, quoting State v. Jones

(2001), 93 Ohio St.3d 391, 400, 754 N.E.2d 1252.

       {¶10} O’Neill has failed to clearly and convincingly demonstrate that his

sentence was contrary to law. O’Neill pled guilty to one (1) count of felonious

assault in violation of R.C. 2903.11(A)(1), a second degree felony. (Doc. No. 14).

R.C. 2929.14(A)(2) provides: “[f]or a felony of the second degree, the prison term

shall be two, three, four, five, six, seven, or eight years.” The trial court sentenced

O’Neill to five (5) years incarceration, within the range provided by statute; and

therefore, the trial court’s sentence was not contrary to law. (Doc. No. 16).

       {¶11} O’Neill has also failed to clearly and convincingly demonstrate that

the trial court failed to follow the statutory guidelines when sentencing him. In its

judgment entry of sentence, as well as at the sentencing hearing, the trial court

specifically stated that it considered “the purposes and principles of sentencing

under R.C. 2929.11, the seriousness and recidivism factors relevant to the offense

and the offender pursuant to R.C. 2929.12, and the need for deterrence,

incapacitation, rehabilitation, and restitution.” (Mar. 25, 2009 JE, Doc. No. 16);

(Mar. 29, 2009 Tr. at 1). O’Neill asserts that “it is clear that this is simply ‘boiler

plate’ language.” We take issue with this bald assertion for two reasons. First, as



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an Appellate Court, we presume that the trial court did exactly what it said it did.

Betz v. Timken Mercy Med. Ctr. (1994), 96 Ohio App.3d 211, 216, 644 N.E.2d

1058. Second, a simple reading of the judgment entry of sentence contradicts

O’Neill’s assertions.          Therefore, we reject these arguments without further

consideration.

        {¶12} Finally, O’Neill has failed to clearly and convincingly demonstrate

that the trial court’s sentence was not supported by the record. O’Neill has had

several convictions, from 1974 to the present offense, including: possession of a

controlled substance; possession with intent to distribute methamphetamine;

possession of methaquatone; handgun violation; conspiracy to distribute a

controlled substance, methamphetamine; two charges for obtaining a controlled

substance by fraud; two offenses for driving while impaired; driving while license

revoked; breaking and entering; larceny; damage to personal property; possession

of stolen goods; disorderly conduct; robbery; possession of criminal tools; and

fleeing. (PSI); (Mar. 29, 2009 Tr. at 14). These offenses and charges occurred in

Pennsylvania, Maryland, Kentucky, North Carolina, and Ohio, and O’Neill has

been incarcerated in all of those states, except Kentucky.3 (PSI); (See, also, Mar.

29, 2009 Tr. at 14). O’Neill asserts that the majority of his offenses were drug and



3
  We note that the PSI indicates that O’Neill was incarcerated for a short period of time in Pennsylvania
following his conviction for disorderly conduct, though he denied that at the sentencing hearing. (PSI);
(Mar. 29, 2009 Tr. at 14).


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alcohol offenses, not crimes of violence; robbery, however, is a serious crime of

violence. R.C. 2901.01(A)(9)(a). Based upon the PSI, we agree with the trial

court’s findings under R.C. 2929.12(D) that O’Neill had a previous history of

criminal convictions, had not been satisfactorily rehabilitated, and had

demonstrated a pattern of drug and alcohol abuse related to the offenses. (Mar. 29,

2009 JE, Doc. No. 16).

        {¶13} Furthermore, we also agree with the trial court’s finding under R.C.

2929.12(B) that the victim had suffered serious physical harm as a result of

O’Neill’s offense. The record demonstrates that, after drinking to the point of

extreme intoxication,4 O’Neill stumbled out of a bar and collided with a trash can,

knocking it over. (PSI); (See, also, Mar. 29, 2009 Tr. at 4-5). O’Neill then

stumbled up to the victim, leaned on his shoulder, and asked the victim to carry

him to his car. (PSI). The victim, a complete stranger to O’Neill, told O’Neill not

to touch him and to step away from him. (Id.). Apparently, the victim—who was

a 22-year-old man out drinking with his buddies—told O’Neill “you can carry my

di*k,” to which O’Neill responded by pulling a 3” switchblade knife, holding it to

the victim’s throat, and stating that he would “fu*king kill him.” (Id.); (Doc. No.

10). Instead of dismissing the victim’s comment as a smart remark made by a

young intoxicated man impressing his buddies like a reasonable person would do,


4
 O’Neill estimated that he drank ten mixed drinks of vodka and orange juice over the course of 3-4 hours.
(PSI).


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Case No. 1-09-27


O’Neill swung his knife at the victim cutting his throat 10 cm. (PSI); (Doc. No.

10). According to the medical professionals that took care of the victim, if the cut

had been ¼” deeper, the victim would not have survived the injury. (PSI). The

victim also stated that he had suffered from sleepless nights and migraines since

the incident and was sick eight weeks following the incident. (Id.).          After

reviewing the circumstances surrounding the incident and severity of the victim’s

injury, which was nearly fatal, we cannot conclude that the trial court’s sentence

of five (5) years was unsupported by the record.

       {¶14} For all these reasons, we cannot conclude that the trial court’s

sentence was clearly and convincingly unsupported by the record; that the

sentencing statutes’ procedure was not followed or there was not a sufficient basis

for the imposition of a prison term; or that the sentence is contrary to law. Ramos,

2007-Ohio-767, at ¶23; Rhodes, 2006-Ohio-2401, at ¶4; Tyson, 2005-Ohio-1082,

at ¶19, citing R.C. 2953.08(G). Therefore, we affirm the trial court’s judgment

entry of sentence.

       {¶15} O’Neill’s assignment of error is, therefore, overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, J., concurs.



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WILLAMOWSKI, J., concurring separately.

          {¶17} I concur fully with the majority opinion, however write separately to

emphasize that the appropriate standard of review was applied. In his assignment

of error, O’Neil alleges that the trial court abused its discretion in imposing a

sentence above the minimum and not imposing community control sanctions.

O’Neil’s appeal of his felony sentence was not pursuant to R.C. 2929.12, which, in

my opinion would require an abuse of discretion standard.        See State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Thus, the standard used to

review this case, as set forth in R.C. 2953.08(G) is the proper standard of review

herein.

/jlr




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