State v. Robinson

Citation: 2021 Ohio 3095Docket: 2020 CA 0070

Court: Ohio Court of Appeals; September 8, 2021; Ohio; State Appellate Court

Original Court Document: View Document

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Cody Robinson, the defendant-appellant, appealed the September 1, 2020 Sentencing Entry from the Richland County Court of Common Pleas, which imposed consecutive sentences after he pled guilty to two fifth-degree drug possession charges. Initially indicted on November 9, 2018, for aggravated possession of drugs and possession of cocaine, Robinson entered not guilty pleas during his arraignment on April 4, 2019, and was set for trial on July 23, 2019. However, on July 15, 2019, he changed his pleas to guilty for both charges. 

Following a scheduled pre-sentence investigation, Robinson failed to appear for sentencing on September 5 and September 10, 2019, prompting the issuance of a bench warrant. After being arrested on March 11, 2020, and subsequently released, he again failed to appear for a May 4, 2020, sentencing hearing and absconded to Michigan. A Motion to Recall Warrant filed on May 7, 2020, was denied. 

Robinson was eventually arrested on August 30, 2020, and sentenced the following day to twelve months for each charge, to be served consecutively, along with a three-year discretionary term of post-release control. The trial court's decision was affirmed on appeal.

Appellant appeals the trial court's imposition of consecutive sentences, raising four assignments of error: 

1. The sentence contradicts the principles and purposes of sentencing outlined in R.C. 2929.11 and 2929.12, lacks support from the record, and violates Appellant’s due process rights under the Fifth and Fourteenth Amendments and Article I, Section 10 of the Ohio Constitution. 
2. The maximum consecutive sentence is inconsistent with R.C. 2929.14, as the trial court's findings are unsupported by the record, also violating due process rights.
3. Appellant's trial counsel was ineffective for not presenting a reasonable sentencing argument, infringing upon the right to counsel and due process.
4. The imposed sentence constitutes cruel and unusual punishment, violating the Eighth Amendment and Article I, Section 9 of the Ohio Constitution.

The first two assignments are interrelated and will be addressed together. The review of felony sentences follows the standards in R.C. 2953.08, which permits the court to modify or vacate a sentence if it finds the record does not support the trial court's findings or if the sentence is contrary to law. However, the court cannot substitute its judgment for that of the trial court regarding the appropriate sentence.

When sentencing, the trial court must consider the purposes and principles of felony sentencing, including protecting the public, punishing the offender, and promoting effective rehabilitation, as stated in R.C. 2929.11. The trial court must also ensure that the sentence is proportional to the seriousness of the conduct and its impact on the victim, in line with R.C. 2929.11(B). R.C. 2929.12 outlines factors for determining the sentence, which the trial court must consider but is not bound by. The appellate court cannot disturb the sentence unless there is clear and convincing evidence that it does not align with the findings under R.C. 2929.11 and R.C. 2929.12, and can only assess whether the sentence is contrary to law.

A sentence is not deemed clearly and convincingly contrary to law if the trial court properly considers the principles of R.C. 2929.11 and the factors in R.C. 2929.12, imposes post-release control correctly, and sentences the defendant within the statutory range. The Appellant does not dispute that his sentence falls within this range but argues that the factors in R.C. 2929.12(B) and (C) do not apply to him, claiming his conduct was typical for the offenses he committed. A presentence investigation revealed that the Appellant was on community control for a previous conviction at the time of the new offenses in July 2018 and had been incarcerated for violating community control in August 2018. His criminal history includes drug possession and trafficking since 2009, and he demonstrated a lack of remorse, requiring custody to ensure his appearance at sentencing. The trial court considered the relevant sentencing principles and factors, finding no legal basis to contest the sentence. 

The court imposed maximum, consecutive sentences for two fifth-degree felonies: 12 months for Aggravated Possession of Drugs and 12 months for Possession of Cocaine, to be served consecutively. This decision was based on findings that consecutive sentences were necessary to protect the public and punish the offender, that they were proportional to the seriousness of the conduct, and that multiple offenses were committed as part of a course of conduct resulting in significant harm. The offender's criminal history also indicated that consecutive sentences were essential to protect the public from future crimes.

The trial court conducted a sentencing hearing on August 31, 2020, where it made the necessary statutory findings under R.C. 2929.14(C)(4). It determined that consecutive prison terms were essential to protect the public and punish the Appellant, concluding that such terms were proportionate to his conduct and the danger he posed. The court noted the seriousness of the offenses, Appellant's criminal history, his Ohio Risk Assessment Score of 25, and his repeated failures to appear at prior hearings, which led to warrants being issued. These findings were incorporated into the sentencing judgment entry.

The court overruled Appellant's first and second assignments of error. In his third assignment of error, Appellant claimed ineffective assistance of counsel, which requires demonstrating that counsel's performance was below an objective standard of reasonableness and that this deficiency likely altered the trial's outcome. A strong presumption exists in favor of counsel's competence, and judicial scrutiny must be highly deferential. The Appellant alleged that defense counsel failed to advocate for a specific sentence during the hearing. However, the court disagreed with this assertion.

Defense counsel's decision not to speak at the sentencing hearing was deemed strategic and did not constitute ineffective assistance, as tactical choices, even if unsuccessful, are generally permissible. The appellant expressed a desire to move on from the situation during his own statement at the hearing. Even if counsel's performance was considered deficient, the appellant could not demonstrate prejudice since there was no indication that an argument would have resulted in a lesser sentence; the trial court likely would have imposed the same sentence regardless.

The appellant's claim that the sentence was cruel and unusual was rejected, as the Eighth Amendment does not necessitate strict proportionality between crime and punishment, only prohibiting extreme sentences that are grossly disproportionate. Instances of cruel and unusual punishment are rare and must shock the reasonable person's sense of justice; however, a sentence within statutory limits typically does not qualify as cruel and unusual. Since the appellant's sentence complied with statutory guidelines, it was not excessive, reinforcing that there was no constitutional violation. The trial court's judgment was affirmed.