State v. Thompson
| Decision Date | 02 March 2020 |
| Docket Number | CASE NO. 1-19-30 |
| Citation | 2020 Ohio 723 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. DAVID A. THOMPSON, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Appeal from Allen County Common Pleas Court
Judgment Affirmed
APPEARANCES:
Marley C. Nelson for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant, David A. Thompson ("Thompson"), appeals the January 23, 2019 judgment entry of sentence of the Allen County Court of Common Pleas. We affirm.
{¶2} On July 12, 2018, the Allen County Grand Jury indicted Thompson on one count of possession of cocaine in an amount equal to or exceeding 20 grams but less than 27 grams of cocaine in violation of R.C. 2925.11(C)(4)(D), a second-degree felony. (Doc. No. 4). Thompson appeared for arraignment on July 23, 2018 and entered a plea of not guilty. (Doc. No. 11). The initial jury-trial date was assigned for October 2, 2018, but continued twice. (Doc. Nos. 18, 34, 35, 47, 50, 51, 65, 66, 106). In anticipation of the trial, five law-enforcement officers from the Lima Police Department were each served a subpoena by a deputy sheriff from the Allen County Sheriff's Office on September 21, 2018, then again on September 30, 2018 (for the rescheduled jury trial on October 16, 2018), once more on December 18, 2018 (for the rescheduled jury trial on January 8, 2019), and finally, on January 3, 2019 (for the rescheduled jury trial on January 22, 2019).1 (Doc. Nos. 17, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 50, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 62, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 106).
{¶3} The case proceeded to a jury trial on January 22 and 23, 2019 where the jury found Thompson guilty of possession of cocaine. (Doc. No. 83, 84, 107); (Jan. 22 and 23, 2019 Tr. at 1-202). Immediately thereafter, the trial court sentenced Thompson to a six-year-mandatory-prison term. (Doc. No. 83, 84). Thompson was also ordered to pay a $10,000 fine and court costs. (Doc. No. 84).
{¶4} On May 17, 2019, Thompson filed a notice of appeal and a pro-se motion for leave to file delayed appeal which we granted on June 14, 2019. (Case No. 01-19-30, Doc. Nos. 1, 2, 3).2 He raises two assignments of error for our review. We will address his first assignment of error followed by his second assignment of error.
David Thompson's sentence is contrary to law because the trial court determined that his offense was committed "for hire or as part of an organized criminal activity" when there was no evidence in the record to support that conclusion. R.C. 2953.08(G)(2)(a)-(b); R.C. 2929.12(B); Fifth and Fourteenth Amendments, United States Constitution; Sections 10 and 16, Article I, Ohio Constitution; Trial Tr. 198.
{¶5} In his first assignment of error, Thompson argues that the trial court erred by imposing the six-year-mandatory-prison term. In particular, he argues thatthe record does not support the trial court's sentence because the trial court improperly considered that Thompson's offense was "for hire" or "as a part of an organized criminal activity."
{¶6} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence "only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. 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.'" Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶7} "It is well-established that the statutes governing felony sentencing no longer require the trial court to make certain findings before imposing a maximum sentence." State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 29, citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14 () and State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 9 (). Rather, "'trial courts have full discretion to impose any sentence within the statutory range.'" State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. In this case, as a second-degree felony, possession of cocaine in an amount equal to or exceeding 20 grams, but less than 27 grams of cocaine, carries a mandatory sanction of 2-year to 8-years imprisonment. R.C. 2925.11(C)(4)(D); 2929.13(F)(5); 2929.14(A)(2)(b). Because the trial court sentenced Thompson to 6 years in prison, the trial court's sentence falls within the statutory range. (Jan. 22 and 23, 2019 Tr. at 200); (Doc. Nos. 84, 107). "[A] sentence imposed within the statutory range is 'presumptively valid' if the [trial] court considered applicable sentencing factors." Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.
{¶8} "R.C. 2929.11 provides, in pertinent part, that the 'overriding purposes of felony sentencing are to protect the public from future crime and to punish the offender.'" Smith at ¶ 10, quoting R.C. 2929.11(A). "In advancing these purposes, sentencing courts are instructed to '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., quotingR.C. 2929.11(A). "Meanwhile, R.C. 2929.11(B) states that felony sentences must be 'commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim' and also be consistent with sentences imposed in similar cases." Id., quoting R.C. 2929.11(B). "In accordance with these principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender's conduct and the likelihood of the offender's recidivism." Id., citing R.C. 2929.12(A). "'A sentencing court has broad discretion to determine the relative weight to assign the sentencing factors in R.C. 2929.12." Id. at ¶ 15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).
{¶9} "Although the trial court must consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C. 2929.12, the sentencing court is not required to 'state on the record that it considered the statutory criteria or discuss[ed] them.'" Maggette at ¶ 32, quoting State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995). "A trial court's statement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes." Id., citing State v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, ¶ 14, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. At Thompson's sentencing hearing and in itssentencing entry, the trial court considered the R.C. 2929.11 and 2929.12 factors. (Jan. 22 and 23, 2019 Tr. at 198-201); (Doc. Nos. 84, 107).
{¶10} Thompson argues that because he was sentenced on a possession-of-cocaine conviction and not a trafficking conviction, the trial court was precluded from finding that his conduct more serious as being "for hire" or "as a part of an organized criminal activity" under R.C. 2929.12(B)(7). Indeed, the terms "for hire" and "as a part of an organized criminal activity" are not defined in R.C. Chapter 2929 and trial courts must determine on a case-by-case basis if an offense is "for hire" or "as a part of an organized criminal activity". See State v. Woodruff, 3d Dist. Union No. 14-04-07, 2004-Ohio-3547, ¶ 9. See also State v. Sawyer, 3d Dist. Allen No. 1-03-82, 2004-Ohio-1719, at ¶ 8, citing State v. Martinez, 6th Dist. Wood No. WD-01-027, 2002-Ohio-735, *6 (Feb. 22, 2002), citing State v. Obregon, 6th Dist. Sandusky No. S-99-042 (Aug. 25, 2000) and State v. Shryock, 1st Dist. Hamilton No. C-961111, 1997 WL 1008672 (Aug. 1, 1997).
{¶11} At issue are the following statements made by the trial court at Thompson's sentencing hearing:
[The Trial Court] In this case I'm going to make a finding, and I don't give it a whole lot of weight under the facts of this case, but I will find that the offense was committed as part of an organized criminalactivity. That's not to say that Mr. Thompson was a member of a gang or anything like. That's not what I'm saying. But, organized criminal activity in terms of being a part of the drug culture in this community. I don't give that a whole lot weight. As far as for hire, there was really no other explanation of the nine hundred dollars that was seized from him with the drugs. But, I'll just make that note. He's part of the drug problem in the county. For that purpose, it's part of an organized criminal activity. Again, not a whole lot of make it more serious. Its serious enough because of the amount involved. But, I just note that for the record.
(Jan. 22 and 23, 2019 Tr. at 198); (See Doc. Nos. 84, 107). Notwithstanding these comments and finding, the presentence investigation report ("PSI") details that Thompson has previously been convicted on two counts of trafficking in cocaineand several convictions for possession of drugs.3 Nevertheless, assuming without deciding that the trial court may have over-reached in finding that Thompson committed the offense of possession of cocaine "for hire" or "as a part of an...
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