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Date: 01-27-2021
Case Style:
STATE OF OHIO v. DONOVAN R. CLINCHSCALES
Case Number: 8-20-15
Judge: William R. Zimmerman
Court: IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
Plaintiff's Attorney: Sarah J. Warren
Defendant's Attorney:
OR
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Description:
Lima, OH - Criminal defense attorney represented Donovan R. Clinchscales with three criminal charges Count One of Attempted Rape; Count Two of Gross Sexual Imposition and Count Three of Kidnapping.
} On April 1, 2020, Clinchscales entered his guilty plea in the trial court
under a negotiated plea agreement, which included a joint sentencing
recommendation.1
(Doc. Nos. 98, 131); (Apr. 27, 2020 Tr. at 3-4). Specifically, in
exchange for his guilty plea to a bill of information charging Clinchscales with one
count of Attempted Felonious Assault in violation of R.C. 2923.02 and R.C.
2903.11(A)(1), a third-degree felony, the State agreed to dismiss the three-count
1
The State and Clinchscales jointly recommended community control sanctions with a condition being
treatment at River City Correctional Center, a community based correctional facility where Clinchscales
could receive sex-offender programming. (Doc. Nos. 100, 131); (Apr. 27, 2020 Tr. at 3-4).
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indictment. (Doc. Nos. 100, 130); (Apr. 1, 2020 Tr. at 5). The trial court accepted
Clinchscales’s guilty plea, found him guilty, dismissed the indictment, and ordered
a presentence investigation (“PSI”). (Id.); (Id. at 22-26).
{¶4} On April 27, 2020, the trial court sentenced Clinchscales to 30 months
in prison.2
(Doc. No. 107). On May 11, 2020, Clinchscales filed his notice of appeal
and raises one assignment of error for our review. (Doc. No. 118).
Assignment of Error
By clear and convincing evidence, the record does not support the
trial court’s decision to reject a joint recommendation of
community control in favor of a prison term.
{¶5} In his assignment of error, Clinchscales argues that the trial court erred
by imposing a prison term, rather than, the joint sentencing recommendation. In
particular, he argues that the record does not support the trial court’s sentence.
Standard of Review
{¶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
2
The trial court ordered that Clinchscales receive 201 days’ jail-time credit, pay $367 in restitution, and that
the costs of prosecution under R.C. 2929.18(A) and 2947.23 and court costs be waived. (Doc. No. 107);
(Apr. 27, 2020 Tr. at 8).
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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.
Analysis
{¶7} “‘[T]rial 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,
¶ 10, 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 third-degree felony, Attempted Felonious Assault, carries a nonmandatory sanction of 9-months to 36-months imprisonment. R.C. 2923.02; R.C.
2903.11(A)(1); 2929.13(C); 2929.14(A)(3)(b). Because the trial court sentenced
Clinchscales to 30 months in prison, the trial court’s sentence falls within the
statutory range. “[A] sentence imposed within the statutory range is ‘presumptively
valid’ if the [trial] court considered applicable sentencing factors.” State v.
Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 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,
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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., quoting
R.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, 6th Dist. Lucas No. L-10-1179,
2011-Ohio-5032, ¶ 18, 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.
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Cuyahoga No. 103786, 2016-Ohio-4570, ¶ 14, citing State v. Payne, 114 Ohio St.3d
502, 2007-Ohio-4642, ¶ 18.
{¶10} At Clinchscales’s sentencing hearing and in its sentencing entry, the
trial court considered the R.C. 2929.11 and 2929.12 factors. (Apr. 27 Tr. at 5-7);
(Doc. Nos. 107, 131). Specifically, the trial court considered “the purposes and
principles of sentencing set forth in R.C. 2929.11,” and in exercising its discretion,
the trial court considered those factors “relating to the likelihood of the offender’s
recidivism” provided in division (D) as required by R.C. 2929.12(A) when the court
considered the need to deter or incapacitate Clinchscales. R.C. 2929.12(A). (See
Apr. 27, 2020 Tr. at 5-7); (Doc. Nos. 107, 131). In assessing whether Clinchscales
was likely to commit future crimes, the trial court considered Clinchscales’s prior
juvenile delinquency record and determined that he had “a history of criminal
conduct that includes a prior violent sexual offense”. (Apr. 27, 2020 Tr. at 7); (Doc.
No. 131). See R.C. 2929.12(D)(2). Moreover, the trial court in its consideration of
the PSI, determined that Clinchscales “does not show any remorse” as a result of
his claim that “he was set up by the victim”. (Id.); (Id.). See R.C. 2929.12(D)(5).
{¶11} Further, the trial court also considered that Clinchscales had a bond
violation during the pendency of his case, and that the victim in this case suffered
serious physical harm as a result of the offense, “including burns and disfigurement
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to her person.” (Apr. 27, 2020 Tr. at 6-7); (Doc. No. 131). See R.C. 2929.12(A),
(B)(2).
{¶12} The trial court did not find any of R.C. 2929.12(C) factors applied
indicating that Clinchscale’s conduct was less serious. (Apr. 27, 2020 Tr. at 6);
(Doc. No. 131). Moreover, the trial court did not find any factors in R.C. 2929.12(E)
indicating that Clinchscales is not likely to commit future crimes applied.
{¶13} After weighing the seriousness and recidivism factors, considering the
victim impact statement, and the PSI, the trial court ultimately determined that
Clinchscales’s joint sentencing recommendation was contrary to the overriding
purposes of felony sentencing, and that a 30-month prison term was appropriate
under the facts presented. (See Apr. 27, 2020 Tr. at 7); (Doc. No. 131). See also
R.C. 2929.11(B).
{¶14} In our review of the record, we conclude that the trial court’s findings
are clearly and convincingly supported by the record. Thus, it was within the trial
court’s discretion to impose a prison sentence as “the most effective way to comply
with the purposes and principles of sentencing set forth in section 2929.11 of the
Revised Code.” R.C. 2929.12(A). Accordingly, based on the foregoing,
Clinchscales’s sentence is not clearly and convincingly contrary to law because it is
within the permissible statutory range, and the trial court properly considered the
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criteria set forth in R.C. 2929.11 and 2929.12. See Maggette, 2016-Ohio-5554, at ¶
36
Outcome: Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: