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Date: 11-19-2020

Case Style:

STATE OF OHIO v. RAKEEM FORD

Case Number: 2019-CA-85

Judge: Jeffrey M. Welbaum

Court: IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

Plaintiff's Attorney: JOHN M. LINTZ, Assistant Prosecuting Attorney, Clark County
Prosecutorís Office

Defendant's Attorney:


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Description:

Springfield, OH - Criminal defense lawyer represented defendant Rakeem Ford with appealing from his conviction in the Clark County Court of Common Pleas after he pled guilty to one count of possession of heroin and one count of obstructing official business.




{∂ 2} On July 9, 2019, a Clark County grand jury returned an indictment charging
Ford with single counts of trafficking in heroin, possession of heroin, trafficking in
marijuana, improper handling of a firearm in a motor vehicle, receiving stolen property,
and obstructing official business. The charge for receiving stolen property and each of
the drug charges included a firearm specification. The charges for trafficking in heroin
and possession of heroin also included forfeiture specifications for $2,230.
{∂ 3} The charges stemmed from Fordís encounter with police while he was riding
as a front-seat passenger in a vehicle that was stopped for minor traffic violations during
the early morning hours of March 17, 2019. The officer who initiated the traffic stop
searched the driver and Ford after he noticed odors of brunt marijuana and an alcoholic
beverage coming from the interior of the vehicle. The officer also observed a baggie of
marijuana lying on Fordís seat in plain view. While searching Ford, the officer located
several baggies of marijuana, a large bundle of currency, and a small baggie of off-white
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powder in the pockets of Fordís pants. The off-white powder was later confirmed to be
0.714 grams of heroin.
{∂ 4} When the officer attempted to arrest and handcuff Ford, Ford forcefully pulled
away and began to flee from the officer on foot. As the officer was chasing Ford, a
vehicle driven by the mother of one of Fordís children, Kamila Portis, approached them
and drove directly at the officer in an aggressive manner. Portis then slammed on her
vehicleís brakes and Ford entered the vehicle. The officer then approached the vehicle
and ordered Portis to stop, but she instead sped away as the officer opened the driverísside door. For safety purposes, the officer did not pursue the vehicle containing Ford
and Portis. The officer, however, went back to search the vehicle that he had previously
stopped and found a backpack containing a firearm and a loaded magazine. Ford was
later placed in custody after a warrant was issued for his arrest.
{∂ 5} On November 5, 2019, Ford entered into a plea agreement with the State
whereby he pled guilty to possession of heroin in violation of R.C. 2925.11(A) and
obstructing official business in violation of R.C. 2921.31(A), both fifth-degree felonies.
Ford also agreed to the forfeiture of $2,230 that was found on his person during the
offenses in question. In exchange for Fordís guilty plea, the State agreed to dismiss the
remaining charges and firearm specifications, including the firearm specification attached
to the charge for possession of heroin. After conducting the necessary plea colloquy,
the trial court accepted Fordís guilty plea and ordered a presentence investigation report
(ďPSIĒ).
{∂ 6} At Fordís sentencing hearing, the trial court sentenced Ford to 12 months in
prison for each of his two offenses. The trial court then ordered the sentences to be
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served consecutively for a total prison term of two years. The trial court also ordered
Ford to forfeit the $2,230 found on his person. Ford now appeals, challenging his
sentence and raising a single assignment of error for review.
Assignment of Error
{∂ 7} Under his assignment of error, Ford raises several arguments concerning the
aggregate two-year prison sentence imposed by the trial court. Fordís primary argument
is that his sentence violates the constitutional prohibition against cruel and unusual
punishment under the Eighth Amendment. Ford also claims that the trial court erred by
imposing consecutive sentences and by failing to consider the purposes and principles of
felony sentencing in R.C. 2929.11. For the reasons outlined below, we find that Fordís
claims lack merit.
{∂ 8} When reviewing felony sentences, this court must apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ∂ 1 and 7. Under that statute, an appellate court may
increase, reduce, or modify a sentence, or it may vacate the sentence and remand for
resentencing, only if it clearly and convincingly finds either: (1) the record does not support
the sentencing courtís findings under certain statutes (including R.C. 2929.14(C)(4),
which concerns the imposition of consecutive sentences); or (2) the sentence is otherwise
contrary to law. Id. at ∂ 9, citing R.C. 2953.08(G)(2).
{∂ 9} As part of his argument, Ford is challenging the trial courtís imposition of
consecutive sentences. Pursuant to R.C. 2929.14(C)(4), a trial court may impose
consecutive sentences if it finds that: (1) consecutive service is necessary to protect the
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public from future crime or to punish the offender; (2) consecutive sentences are not
disproportionate to the seriousness of the offenderís conduct and to the danger the
offender poses to the public; and (3) one or more of the following three findings are
satisfied:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any
of the courses of conduct adequately reflects the seriousness of the
offenderís conduct.
(c) The offenderís history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{∂ 10} ď[A] trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.Ē State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. ď[W]here a trial court
properly makes the findings mandated by R.C. 2929.14(C)(4), an appellate court may not
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reverse the trial courtís imposition of consecutive sentences unless it first clearly and
convincingly finds that the record does not support the trial courtís findings.Ē State v.
Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ∂ 38 (2d Dist.). The consecutive nature of
the trial courtís sentencing decision should therefore stand ďunless the record
overwhelmingly supports a contrary result.Ē (Citation omitted.) Id. at ∂ 39.
{∂ 11} In this case, the record establishes that the trial court made all the required
consecutive-sentence findings at the sentencing hearing. The record also establishes
that the trial court included those findings in the sentencing entry. Specifically, the trial
court found that:
[C]onsecutive service is necessary to protect the public from future
crime by the defendant * * * and to punish the defendant. Consecutive
sentences are not disproportionate to the seriousness of his conduct and
the danger he poses to the public. The Court also finds the defendant
committed one or more multiple offenses while he was awaiting trial or
sentencing, and the defendantís history of criminal conduct demonstrates
consecutive sentences are necessary to protect the public from future crime
by the defendant[.]
Sentencing Tr. p. 12. See also Judgment Entry of Conviction p. 2.
{∂ 12} Upon review, we do not clearly and convincingly find that the record fails to
support the trial courtís consecutive-sentence findings. The PSI indicated that Ford had
a lengthy criminal history that included several juvenile adjudications and adult
convictions. For instance, as a juvenile, Ford was adjudicated for arson, disorderly
conduct, aggravated assault, criminal damaging, criminal trespass, and several probation
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violations. As an adult, Ford had been convicted of receiving stolen property,
aggravated robbery, vandalism, and several traffic violations, including driving under
suspension and driving without a valid license. More recently, in 2015, Ford was
convicted of fleeing and eluding and having a weapon while under disability. Then, in
2018, Ford was charged with driving under suspension in Madison County, where he
failed to appear at court. This resulted in Madison County issuing a warrant for Fordís
arrest in February 2019. Ford then committed the instant offenses while the Madison
County warrant was active.
{∂ 13} The PSI also established that when Ford committed the instant offenses,
he engaged in conduct that could have caused serious physical harm to a police officer.
As previously noted, Ford jumped into a vehicle that drove directly at the officer who was
chasing Ford. The vehicle then sped away as the officer attempted to open the driverísside door. The PSI also indicated that a firearm was discovered in the vehicle Ford was
initially traveling in. Although the State mentioned the firearm at the sentencing hearing,
the trial court stated that because the firearm specifications were dismissed, it did not
consider the firearm when sentencing Ford.
{∂ 14} The PSI further established that Ford scored high on the Ohio Risk
Assessment Survey, which indicates a high risk of recidivism. The PSI also indicated
that over the previous 12 years, Ford had served several jail terms, paid several fines,
and performed several hours of community service, and yet had not responded favorably
to these sanctions. Ford was also found to have shown no genuine remorse for his
conduct in this case. Based on all the foregoing information, we cannot say that the
record fails to support the trial courtís consecutive-sentence findings. Therefore, we find
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no error with regard to the trial courtís decision to impose consecutive sentences.
{∂ 15} We also do not clearly and convincingly find that Fordís sentence was
otherwise contrary to law. ďA sentence is contrary to law when it does not fall within the
statutory range for the offense or if the trial court fails to consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set
forth in R.C. 2929.12.Ē (Citation omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d
1135, ∂ 74 (2d Dist.). ď ĎThe trial court has full discretion to impose any sentence within
the authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than minimum sentences.í Ē State v. Fyffe,
2018-Ohio-112, 109 N.E.3d 51, ∂ 31 (2d Dist.), quoting State v. King, 2013-Ohio-2021,
992 N.E.2d 491, ∂ 45 (2d Dist.).
{∂ 16} Contrary to Fordís claim otherwise, the record of the sentencing hearing and
the sentencing entry indicate that the trial court considered the purposes and principles
of felony sentencing in R.C. 2929.11, as well as the sentencing factors in R.C. 2929.12.
See Sentencing Tr. p. 11; Judgment Entry of Conviction p. 1. In addition, the 12-month
prison sentence imposed for each of Fordís offenses was within the authorized statutory
range for fifth-degree felonies. See R.C. 2929.14(A)(5). Therefore, we do not clearly
and convincingly find that Fordís individual prison sentences were contrary to law.
{∂ 17} ď[A]n appellate court may vacate or modify any sentence that is not clearly
and convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.Ē Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, at ∂ 23. ďIf the record does not contain evidence from
which we can determine that the sentence was clearly and convincingly improper, then
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we are without authority to vacate it.Ē State v. Pack, 2d Dist. Clark No. 2018-CA-52,
2018-Ohio-4632, ∂ 12. Therefore, ďthe record must contain substantial affirmative
factual information in support of the defendant to conclude that the trial courtís sentencing
decision was in error.Ē Id., citing Withrow, 2016-Ohio-2884, 64 N.E.3d 553, at ∂ 40.
{∂ 18} After a thorough review of the record, we do not find by clear and convincing
evidence that the record fails to support the trial courtís decision to impose maximum,
consecutive sentences. As we previously discussed, Ford had a lengthy criminal
history, engaged in conduct that put a police officer in harmís way, had not responded
favorably to previously imposed sanctions, received a high risk-of-recidivism score, and
showed no genuine remorse for his conduct. Therefore, when considering all of the
above, we cannot say that Fordís aggregate two-year prison sentence was unsupported
by the record.
{∂ 19} We also find that Fordís allegation of cruel and unusual punishment is
unpersuasive. ďIn addition to protecting individuals from punishment such as torture, the
Eighth Amendment has been invoked to prohibit punishment that is disproportionate to
the crime committed.Ē State v. Harding, 2d Dist. Montgomery No. 20801, 2006-Ohio481, ∂ 77, citing State v. Weitbrecht, 86 Ohio St.3d 368, 370, 715 N.E.2d 167 (1999).
ďEighth Amendment violations are rare, and instances of cruel and unusual punishment
are limited to those punishments, which, under the circumstances, would be considered
shocking to any reasonable person.Ē Id., citing Weitbrecht at 370. (Other citation
omitted.) ďThe punishment must be so greatly disproportionate to the offense that it
shocks the sense of justice of the community.Ē Id. Because ďwe are bound to give
substantial deference to the General Assembly, which has established a specific range
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of punishment for every offense,Ē as a general rule, a sentence ď Ďthat falls within the terms
of a valid statute cannot amount to a cruel and unusual punishment.í Ē State v. Hairston,
118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ∂ 21 and 24, quoting McDougle
v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). Accord State v. Mayberry,
2014-Ohio-4706, 22 N.E.3d 222, ∂ 38 (2d Dist.).
{∂ 20} In this case, each of Fordís individual prison sentences fell within the
authorized statutory range for fifth-degree felonies. Consecutive service of those
sentences was also authorized under R.C. 2929.14(C)(4). Fordís aggregate two-year
prison sentence was also not so greatly disproportionate to his offenses that it would
shock a reasonable person or the communityís sense of justice. Therefore, because
Fordís sentence was statutorily sanctioned and would not shock a reasonable person or
the communityís sense of justice, we cannot say that Fordís sentence amounted to cruel
and unusual punishment under the Eighth Amendment. See Mayberry at ∂ 38.
{∂ 21} For all the foregoing reasons, Fordís sole assignment of error is overruled.
Conclusion

Outcome: Having overruled Fordís assignment of error, the judgment of the trial court
is affirmed.

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