State v. King, L-21-1205

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtDUHART, J.
Citation2022 Ohio 3359
PartiesState of Ohio Appellee v. Marcus King Appellant
Docket NumberL-21-1205
Decision Date23 September 2022

2022-Ohio-3359

State of Ohio Appellee
v.

Marcus King Appellant

No. L-21-1205

Court of Appeals of Ohio, Sixth District, Lucas

September 23, 2022


Trial Court No. CR0202101687

Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

DECISION AND JUDGMENT

DUHART, J.

{¶ 1} This case is before the court on appeal by appellant, Marcus King, from a Lucas County Common Pleas Court judgment sentencing appellant to a 17-month prison term following his conviction on one count of aggravated assault, as well as 775 days for a violation of post-release control. For the reasons that follow, we affirm.

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Assignments of Error

1. The record in the trial court does not support the imposition of a seventeen month sentence in the ODRC.

2. The trial court abused its discretion by imposing seven hundred and seventy-five days in the ODRC for a violation of appellant's post-release control.

Background

{¶ 2} On September 15, 2021, appellant pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to aggravated assault, in violation of R.C. 2903.12(A)(1), a felony of the fourth degree. At his sentencing hearing on September 29, 2021, appellant was sentenced to 17 months in prison on the aggravated assault conviction. Further, because appellant was on post-release control in another case when he committed the aggravated assault, the trial court found appellant in violation of his post-release control and sentenced him to 775 days in prison, to be served consecutively to the prison term for the aggravated assault.

{¶ 3} Appellant appealed.

First Assignment of Error

{¶ 4} Appellant argues that the record does not support his sentence. We review felony sentences under R.C. 2953.08(G)(2). State v. Purley, 6th Dist. Lucas No. L-21-1216, 2022-Ohio-2524, ¶ 8. R.C. 2953.08(G)(2) allows an appellate court to increase, reduce, or otherwise modify a sentence, or vacate the sentence and remand for resentencing if the court finds by clear and convincing evidence that either of the

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following apply: (1) "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" or (b) "the sentence is otherwise contrary to law."

{¶ 5} Appellant does not argue that the record does not support his sentencing under any of the specified statutes. Instead, he contends that his 17-month sentence for the aggravated assault conviction is contrary to law and a violation of R.C. 2929.11(B) because his sentence is not proportional to his co-defendants' sentences, both of whom were sentenced to community control. Appellant maintains that the statements made by the prosecutor at the plea hearing did not distinguish the individual roles of the defendants, so there is no basis for appellant's more severe sentence.

{¶ 6} The state counters that this argument is precluded by the Ohio Supreme Court case of State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 and that the trial court's sentence is not contrary to law under R.C. 2953.08(G)(2)(b).

{¶ 7} Citing Jones, we have previously stated that "neither R.C. 2953.08(G)(2)(a) or (b) permits us to vacate or modify appellant's sentence if we find the record does not support the trial court's imposition of a prison term following its consideration of R.C. 2929.11 and 2929.12." State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13. Appellant has argued that his sentence is in violation of R.C. 2929.11(B), which requires, inter alia, that a sentence be "consistent with sentences imposed for similar crimes committed by similar offenders," and thus his argument is based upon the trial court's consideration of R.C. 2929.11. See also State v. Hayes, 10th

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Dist. Franklin No. 08AP-233, 2009-Ohio-1100, ¶ 10, citing State v. Holloman, 10th Dist. Franklin No. 07AP-875, 2008-Ohio-2650, at ¶ 19 (Decided prior to Jones, the court stated that "a defendant claiming inconsistent sentencing must show that the trial court failed to properly consider the statutory sentencing factors and guidelines found in R.C. 2929.11 and 2929.12.").

{¶ 8} Appellant acknowledges Jones, but attempts to differentiate it by asserting that "there is no indication...

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