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Date: 05-24-2019

Case Style:

STATE OF OHIO v. BRETT MORRIS

Case Number: 107641

Judge: PATRICIA ANN BLACKMON

Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin E. Bringman, Assistant Prosecuting Attorney

Defendant's Attorney: Mary Catherine Corrigan

Description:






Brett Morris (“Morris”) appeals his 30-month prison sentence after
pleading guilty to attempted felonious assault and assigns the following error for our
review:
I. The trial court’s sentence was contrary to law.
Having reviewed the record and pertinent law, we affirm the trial
court’s judgment. The apposite facts follow.
On July 24, 2018, Morris pled guilty to one count of attempted
felonious assault in violation of R.C. 2903.11(A)(1) and 2923.02, a third-degree
felony. On August 20, 2018, the court sentenced Morris to 30 months in prison. It
is from this order that Morris appeals.
Felony sentencing standard of review
R.C. 2953.08(G)(2) provides, in part, that when reviewing felony
sentences, the appellate court’s standard is not whether the sentencing court abused
its discretion; rather, if this court “clearly and convincingly” finds that (1) “the record
does not support the sentencing court’s findings under” R.C. Chapter 2929 or (2) “the
sentence is otherwise contrary to law,” then we may conclude that the court erred in
sentencing. See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231.
A sentence is not clearly and convincingly contrary to law “where the
trial court considers the purposes and principles of sentencing under R.C. 2929.11
as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly
applies postrelease control, and sentences a defendant within the permissible
statutory range.” State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio
2525, & 10.


Pursuant to R.C. 2929.11(A), the two overriding purposes of felony
sentencing are “to protect the public from future crime by the offender and others”
and “to punish the offender using the minimum sanctions that the court determines
accomplish those purposes * * *.” Additionally, the sentence imposed shall be
“commensurate with and not demeaning to the seriousness of the offender’s conduct
and its impact on the victim, and consistent with sentences imposed for similar
crimes committed by similar offenders.” R.C. 2929.11(B).
Furthermore, in imposing a felony sentence, “the court shall consider
the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the
conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the
likelihood of the offender=s recidivism * * *.” R.C. 2929.12. However, this court has
held that “[a]lthough the trial court must consider the principles and purposes of
sentencing as well as the mitigating factors, the court is not required to use
particular language or make specific findings on the record regarding its
consideration of those factors.” State v. Carter, 8th Dist. Cuyahoga No. 103279,
2016-Ohio-2725, & 15.
It is undisputed that Morris’s 30-month prison sentence is within the
permissible statutory range of between 9 and 36 months in prison for a third-degree
felony conviction. R.C. 2929.14(A)(3)(b). On appeal, Morris argues that his
sentence is contrary to law “because the record, including the Trial Court’s journal
entry, is devoid of any evidence that the Trial Court considered the factors in ORC


2929.12, and the oral record does not support the journal entry in demonstrating
that the Trial Court considered the factors in ORC 2929.11.”
At Morris’s sentencing hearing, the court stated on the record that it
reviewed Morris’s presentence investigation report. The state offered a summary of
the incident associated with Morris’s conviction, which occurred on March 12, 2018,
when Morris held his girlfriend against her will in her apartment and pushed her
resulting in a broken arm. Evidence in the record shows that Morris has a criminal
history, including two prior domestic violence protection orders in the state of New
Jersey. Furthermore, on the day of this incident, Morris fled back to New Jersey on
a Greyhound bus and had to be extradited to Ohio for this case.
The victim testified, in part, as follows:
I wish I could stand before you and tell you this has been an easy journey; however, that’s not the case. Today though I am able to finally allow my voice to be heard.
Unfortunately, Mr. Morris has deep anger issues and a lack of respect for women as he openly admitted in the letter he wrote me. As a result of Mr. Morris not knowing how to handle himself correctly, he chose to use me as his release mechanism. I endured many times of his choice to use physical force against me. Two specific times are when he busted out my two front teeth and when he broke my left arm. As a result, I have lifelong damage.
* * *
I now have a plate and ten screws in my left arm which extends from my shoulder to my elbow, and I wake in pain every day and attend therapy twice weekly.
I had to spend two nights in the hospital. I had 54 staples in my arm, which has now left me with a large scar.
* * *


This has also affected me mentally and emotionally. Trying to rebuild myself as well as relationships with others has been difficult. I don’t trust others. I have been attending and will continue to attend counseling once weekly. I also participate in trauma, depression and anxiety peer support groups weekly, as well as see my psychiatrist monthly.
I have tried to remain in my current home, however, due to the constant vivid, visual replaying of everything that happened, I am moving.
Your Honor, I don’t hate Mr. Morris. And moving forward I would like to one day forgive him. I feel he needs help to deal with some of the things in his life so he can be a safe, productive member of society. I don’t think that’s right now though. And I hate the feeling of knowing that someone else can go through this.
Defense counsel argued at the sentencing hearing that Morris was
very remorseful for his actions, the victim has a history of medical issues including
frequent dislocation of her left shoulder, and Morris did not “flee” on the day of the
incident; rather, his plan was to return to New Jersey, which lead to an argument
between Morris and the victim. According to defense counsel, Morris remained at
the victim’s apartment when EMS arrived to take her to the hospital. Morris spoke
with the police that day, and he was neither charged nor arrested at the time.
Defense counsel requested that the court sentence Morris to community control
sanctions.
Morris also spoke at his sentencing hearing, expressing remorse and
regret for his actions. “A push turned into something that I regret it went any further
than just a push. There was no malice and no intent for me to intentionally break
her arm. That was something that happened by accident. As she fell onto the bed,
she braced for impact and her arm popped out of place.” According to Morris, he


felt it was best to have no contact with the victim after the incident, so he went back
to New Jersey as planned. Morris also told the court that he recently became
reconnected with his two sons, and he has “been in anger management and mental
health classes prior to even coming to Cleveland. * * * As I was incarcerated and
while I was free, I was going to those classes on my own so I could better myself.”
Morris further stated that “I know I have some things that I have to work on, but
those things did not come into play this day.” Morris stated that if he were sentenced
to community control sanctions, he “would utilize it to my advantage so that I can
make a positive reintegration into society and finish doing what I was doing for my
community back in New Jersey and possibly out here.”
In sentencing Morris, the court stated that it considered “the
relationship or the situation” to determine whether this offense was more or less
serious “than what I might otherwise expect * * *.” The court also considered
Morris’s “criminal background” to “make an assessment as to whether * * * he would
likely reoffend in the future.” The court found that, in the case at hand, “the
probation department has provided some view in that regard, and they have
suggested that Mr. Morris is a high risk.” The court also found that Morris “had
some understanding” that the victim “may be more fragile than others” in relation
to the potential for injury to her left arm. The court noted that “you have to take the
victim as you find them,” and Morris “has to be responsible” for the victim’s injury
“under our view of the law * * *.”


The court found that Morris had previously served prison time in New
Jersey for “an assault-related matter * * *.” The court also found that the victim’s
broken arm in this case was a “serious physical injury.” The court accepted Morris’s
“acknowledgment of his conduct,” but found that this did not diminish the
“seriousness of the circumstances.” The court found that community control
sanctions would not be appropriate in this case, and sentenced Morris to 30 months
in prison. The court noted that this was less than the maximum of 36 months in
prison.
The August 21, 2018 sentencing journal entry states that “[t]he court
considered all required factors of the law. The court finds that prison is consistent
with the purpose of R.C. 2929.11.”
Upon review, we find that the record supports the court’s findings in
the instant case. The court discussed on the record the seriousness and recidivism
factors, and although the court did not use the “magic words” associated with the
principles and purposes of felony sentencing, evidence in the record shows that the
court considered these factors. See State v. Roberts, 8th Dist. Cuyahoga No. 89236,
2008-Ohio-1942, ¶ 10 (“it is not necessary for the trial court to articulate its
consideration of each individual factor as long as it is evident from the record that
the principles of sentencing were considered”).

Outcome: Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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