State v. Hull
| Decision Date | 17 January 2017 |
| Docket Number | No. 2016–L–035.,2016–L–035. |
| Citation | 77 N.E.3d 484,2017 Ohio 157 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Floyd J. HULL, Sr., Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Painesville, OH, for plaintiff-appellee.
G. Michael Goins, Gates Mills, OH, for defendant-appellant.
{¶ 1} Appellant, Floyd J. Hull, Sr., appeals his sentence following his guilty plea to trafficking heroin and marihuana. For the following reasons, we affirm.
{¶ 2} Hull was indicted on ten counts following a traffic stop during which police found varying types of illegal drugs in his vehicle. He was charged with: (1) possession of 27.67 grams of heroin, a second-degree felony in violation of R.C. 2925.11 ; (2) trafficking 27.67 grams of heroin, a second-degree felony in violation of 2925.03(A)(2); (3) possession of 5.27 grams of cocaine, a fourth-degree felony in violation of 2925.11; (4) trafficking 5.27 grams of cocaine, a fourth-degree felony in violation of R.C. 2925.03(A)(2) ; (5) possession of 21 doses of ketamine, a first-degree misdemeanor in violation of 2925.11; (6) aggravated trafficking of drugs, i.e., ketamine, a fifth-degree felony in violation of 2925.03(A)(2); (7) aggravated possession of five unit doses of bk-MDEA (ethylone) a fifth-degree felony in violation of R.C. 2925.11 ; (8) aggravated trafficking in bk-MDEA (ethylone), a fourth-degree felony in violation of R.C. 2925.11 ; (9) trafficking 125.10 grams of marihuana, a fifth-degree felony in violation of R.C. 2925.03(A)(2) ; and (10) possession of criminal tools, a fifth-degree felony in violation of R.C. 2923.24. Each of the ten offenses had attendant forfeiture specifications.
{¶ 3} Hull's case was set for jury trial on October 13, 2015. On October 9, 2015, Hull's counsel filed a motion to suppress all evidence seized from his vehicle and all statements made by Hull. Hull alleged that his stop was illegal and that he was improperly induced into confessing by investigating officers in exchange for leniency. His counsel did not file a motion to continue the trial.
{¶ 4} On the morning of the scheduled trial, the court overruled his suppression motion as untimely, and Hull pleaded guilty to counts two and nine and the attendant forfeiture specifications. The eight remaining charges were dismissed. His plea agreement points out that Hull was facing up to a total of nine years in prison. The court ordered a presentence investigation report and set Hull's sentencing hearing for November 23, 2015. Hull did not appear at sentencing. The trial court revoked his bond and issued a warrant for his arrest.
{¶ 5} Pursuant to Hull's surety agent's affidavit, "with the assistance of a Recovery Agent, the Defendant, Floyd Hull was apprehended and surrendered to the Lake County Sheriff's Office on February 25, 2016[,]" three months after his originally scheduled sentencing hearing.
{¶ 6} Hull was subsequently sentenced to a mandatory term of five years in prison on count two, and nine months in prison on count nine to be served concurrently.
{¶ 7} Hull asserts two assigned errors on appeal:
{¶ 8} "Trial court erred by using factual inaccuracies and/or inappropriate information as factors pursuant to R.C. 2929.12, seriousness and recidivism factors to determine defendant's length of sentence which resulted in a disproportionate sentence in violation of R.C. 2929.11(B) [sic] therefore making defendant's sentence contrary to law.
{¶ 9} "Trial court committed reversible error and plain error when it failed to sentence the defendant-appellant to the minimum term of incarceration of two (2) years to correct the manifest injustice and constitutional violations that occurred within the present case."
{¶ 10} Hull first alleges that his sentence is contrary to law since the trial court's findings made at the sentencing hearing are not supported by the record.
{¶ 11} R.C. 2953.08(G)(2) sets forth our standard of review upon considering a challenge to a trial court's criminal sentencing decision. It states:
{¶ 12} "(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶ 13} "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶ 14} "(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶ 15} "(b) That the sentence is otherwise contrary to law."
{¶ 16} " ‘Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.' " State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.
{¶ 17} Thus, we are authorized to "increase, reduce, or otherwise modify a sentence only when [we] clearly and convincingly find * * * that the sentence is (1) contrary to law and/or (2) unsupported by the record."
State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1.
{¶ 18} In sentencing an offender for a felony, a trial court is required to consider the purposes of felony sentencing in R.C. 2929.11(A) and consider the statutory seriousness and recidivism factors in R.C. 2929.12(A). State v. Morefield, 2014-Ohio-5170, 24 N.E.3d 633, ¶ 35 (2d Dist.). A sentencing court does not have to use specific language and render precise findings to satisfactorily "consider" the relevant seriousness and recidivism factors. State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶ 79. Instead, the defendant has the burden to affirmatively show that the court did not consider the applicable sentencing criteria or that the sentence imposed is "strikingly inconsistent" with the applicable sentencing factors. Id.
{¶ 19} Hull's prison term of five years for trafficking 27.67 grams of heroin, a second-degree felony in violation of 2925.03(A)(2) was within the permissible range under R.C. 2929.14(2). His concurrent nine-month term for trafficking 125.10 grams of marihuana, a fifth-degree felony in violation of R.C. 2925.03(A)(2), was also in the authorized range. Neither sentence is the maximum.
{¶ 20} Hull's first assigned error takes issue with four findings made by the court at his sentencing hearing in support of its decision finding Hull's offense more serious than the type of offense normally constituting the offense.
{¶ 21} First, Hull argues the trial court erred in finding that he had previously served a thirteen-year sentence for his prior rape conviction. Instead, Hull contends that he only served nine years and six months in prison as a result of his 1986 rape conviction. The trial court's findings include:
{¶ 22}
{¶ 23} Contrary to Hull's argument, the presentence investigation supports the trial court's finding. It indicates that he was admitted to prison on April 10, 1986 and released May 17, 1999, which is more than 13 years. Further, the trial court judge states at sentencing that both sides had an opportunity to review the presentence report and yet Hull's counsel made no objection to his prison admission or release date. Moreover, upon sentencing Hull, the judge asked him if there was anything he wanted to add to the record. Neither Hull nor his counsel alerted the court to the allegedly inaccurate prison term. Finally, there is nothing in the record evidencing that Hull served nine years, and not 13, and regardless of the length of the sentence associated with Hull's rape conviction, the trial court relies more on the fact that he was convicted and served prison time, and not the actual length of his term. Thus, we find no error.
{¶ 24} Second, Hull takes issue with the trial court's statement that he missed his original sentencing hearing because he admitted himself into the hospital that same date. Instead, Hull asserts that he actually went to the hospital the day before his originally scheduled sentencing hearing, and not on the day of his sentencing, and that the hospital staff did not actually admit him until the date of sentencing. Nonetheless, the trial court's reference to this fact is merely incidental to its finding that Hull's whereabouts were unknown for three months thereafter, and as such, recidivism is more likely in his case. The court states:
{¶ 25} "Other relevant factors the Court finds indicating recidivism is more likely is the fact that Defendant absconded from the jurisdiction here and he failed to appear at the time of sentencing. It's been represented today that he admitted...
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