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Date: 12-04-2020
Case Style:
STATE OF OHIO v. DOUGLAS THOMAS
Case Number: 9-19-89
Judge: William R. Zimmerman
Court: IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
Plaintiff's Attorney: Nathan R. Heiser
Defendant's Attorney:
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Description:
Lima, OH - Criminal defense lawyer represented defendant Douglas Thomas charged with a single count of aggravated robbery in violation of R.C. 2911.01(A)(1), a first degree felony.
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{¶2} On May 1, 2019, the Marion County Grand Jury indicted Thomas on
a single count of aggravated robbery in violation of R.C. 2911.01(A)(1), a firstdegree felony. (Doc. No 2). Thomas appeared for arraignment on May 6, 2019 and
entered a plea of not guilty. (Doc. No. 7).
{¶3} On November 18, 2019, Thomas withdrew his plea of not guilty and
entered a guilty plea, under a negotiated-plea agreement, to an amended count.
(Doc. No. 94). Specifically, in exchange for Thomas’s change of plea, the State
agreed to amend the aggravated-robbery charge to robbery in violation of R.C.
2911.02(A)(1), a second-degree felony. (Id.). The trial court accepted Thomas’s
guilty plea, found him guilty, and ordered a presentence investigation (“PSI”).
(Doc. Nos. 94, 97).
{¶4} On December 20, 2019, the trial court sentenced Thomas to a
minimum term of 8 years in prison to a maximum term of 12 years in prison. (Doc.
No. 97). The trial court further ordered that Thomas serve the prison term
consecutively to the prison sentence imposed in another case.1
(Id.).
1
The trial court filed its judgment entry of sentence on December 23, 2019. (Doc. No. 97).
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{¶5} On December 23, 2019, Thomas filed a notice of appeal. (Doc. No.
102). He raises two assignments of error, which we discuss together.
Assignment of Error No. I
The Trial Court Abused its Discretion in Sentencing Appellant to
the Maximum Prison Term as the Appellant’s Actions Were Not
the Worst Form of the Offense.
Assignment of Error No. II
The Trial Court Erred to the Prejudice of the Appellant by
Improperly Sentencing Him to Consecutive Terms of
Incarceration in Contravention of Ohio’s Sentencing Statutes.
{¶6} In his assignments of error, Thomas argues that the trial court erred
by imposing a maximum, consecutive sentence. Specifically, under his first
assignment of error, Thomas argues that the trial court erred by imposing a
maximum sentence without concluding that he committed the “worst form” of the
offense or that he posed “the greatest likelihood of committing future crimes.”
(Appellant’s Brief at 3). In his second assignment of error, Thomas specifically
argues that his consecutive sentence is not supported by the record.
Standard of Review
{¶7} 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,
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¶ 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.
Analysis
{¶8} First, we will address Thomas’s argument challenging the trial court’s
imposition of the maximum term of imprisonment for his robbery conviction. “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 (“Unlike consecutive
sentences, the trial court was not required to make any particular ‘findings’ to justify
maximum prison sentences.”) and State v. Hinton, 8th Dist. Cuyahoga No. 102710,
2015-Ohio-4907, ¶ 9 (“The law no longer requires the trial court to make certain
findings before imposing a maximum sentence.”). 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, ¶ 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.
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{¶9} In this case, as a second-degree felony, robbery carries an indefinite
sanction of two-years to eight-years of imprisonment. R.C. 2911.02(A)(1), (B),
2929.14(A)(2)(a). See also R.C. 2929.13(F). Because the trial court sentenced
Thomas to a minimum term of 8 years in prison to a maximum term of 12 years in
prison, the trial court’s sentence falls within the statutory range and was
appropriately calculated. “[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.
{¶10} “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., 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.
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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).
{¶11} “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, citing State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, ¶ 18.
{¶12} At Thomas’s sentencing hearing and in its sentencing entry, the trial
court considered the R.C. 2929.11 and 2929.12 factors. (Dec. 20, 2019 Tr. at 6-9);
(Doc. No. 97). In particular, in assessing the seriousness of Thomas’s conduct, the
trial court found “the victim suffered serious psychological harm as a result of the
offense.” (Dec. 20, 2019 Tr. at 8). See R.C. 2929.12(B)(2). The trial court did not
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indicate that it found applicable any factors under R.C. 2929.12(C) indicating that
Thomas’s conduct is less serious than conduct normally constituting the offense.
{¶13} In assessing whether Thomas is likely to commit future crimes, the
trial court found that: Thomas committed the offense while under post-release
control; that he was unfavorably terminated from previous “community-control
supervision”; and that he has not responded favorably to sanctions previously
imposed for criminal convictions. (Dec. 20, 2019 Tr. at 7). See R.C. 2929.12(D)(1),
(3). The trial court further weighed Thomas’s lengthy prior-criminal record. (Dec.
720 2019 Tr. at 7-8). See R.C. 2929.12(D)(2). Applying the factors under R.C.
2929.12(E)—indicating that Thomas is not likely to commit future crimes—the trial
court found that none of the factors applied. (Dec. 20, 2019 Tr. at 8).
{¶14} On appeal, Thomas argues that the trial court abused its discretion by
sentencing him to a maximum term of imprisonment without finding that he
committed “the worst form of the offense” or that he posed “the greatest likelihood
of committing future crimes” as the trial court was required to do under R.C.
2929.14(C)(4). Thomas’s argument is misplaced. “R.C. 2929.14(C) previously
provided that a maximum sentence could be imposed only upon offenders who
committed the worst form of the offense, offenders who pose the greatest likelihood
of committing future crimes, and certain repeat violent offenders.” State v. Cole,
6th Dist. Erie No. E-18-061, 2019-Ohio-5425, ¶ 34. “This language was deleted
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from the statute in 2011. Sentencing courts are no longer required to explain its
reasons for imposing a maximum sentence.” Id., citing State v. Pippin, 6th Dist.
Lucas No. L-18-1023, 2019-Ohio-1387, ¶ 17.
{¶15} Because the trial court considered the applicable sentencing criteria
under R.C. 2929.12, the trial court did not err by imposing a maximum-prison
sentence. Importantly, after weighing the seriousness and recidivism factors, the
trial court concluded that Thomas failed to overcome the presumption in favor of
prison and concluded that he is likely to commit future crimes. Importantly, in
concluding that Thomas is likely to commit future crimes, the trial court found that
Thomas has a significant history of criminal convictions; that he committed the
offense while under post-release control; that he was unfavorably terminated from
previous “community-control supervision”; and that he has not responded favorably
to sanctions previously imposed for criminal convictions. Those findings are clearly
and convincingly supported by the record. Importantly, the PSI details Thomas’s
prior record. In particular, the PSI reflects that Thomas has several prior felony
convictions that date from 1978 and include offenses of violence—i.e., involuntary
manslaughter, robbery, assault with a deadly weapon, and kidnapping. (PSI). The
PSI also reflects that Thomas committed the offense at issue in this case while under
post-release control. (Id.).
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{¶16} For these reasons, we conclude the trial court did not abuse its
discretion by concluding that Thomas did not overcome the presumption in favor of
prison. Accordingly, we will not reverse Thomas’s sentence because it is within the
permissible statutory range, the trial court properly considered the criteria found in
R.C. 2929.11 and 2929.12, and the record clearly and convincingly supports the trial
court’s findings under R.C. 2929.11 and 2929.12. See Maggette, 2016-Ohio-5554,
at ¶ 36.
{¶17} Thomas further argues that the trial court erred by imposing
consecutive sentences. “Except as provided in * * * division (C) of section 2929.14,
* * * a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of imprisonment
imposed by a court of this state, another state, or the United States.” R.C.
2929.41(A). R.C. 2929.14(C) provides:
(4) * * * [T]he court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(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.
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(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
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶18} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id. Further, the trial
court must state the required findings at the sentencing hearing prior to imposing
consecutive sentences and incorporate those findings into its sentencing entry. State
v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A trial court “has no obligation
to state reasons to support its findings” and is not “required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be
found in the record and are incorporated into the sentencing entry.” Bonnell at ¶ 37.
{¶19} On appeal, Thomas concedes
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that the trial court’s sentencing entry includes the statement that
consecutive sentences were necessary to protect the public from future
crime and to punish [him]; the consecutive terms were not be [sic]
disproportionate to the seriousness of [his] conduct and to the danger
that he posed to the public; and consecutive sentences were necessary
to public from future crimes by [him].
(Appellant’s Brief at 5). Instead, Thomas argues that the trial court’s findings are
based on “improper facts and statutory bases.” (Id.). Specifically, Thomas contends
that “the record in this case does not justify the trial court’s sentence.” (Id.).
{¶20} Thomas’s argument is without merit. Rather, the trial court’s
imposition of consecutive sentences is supported by the record. Specifically, the
record supports the trial court’s conclusion under R.C. 2929.14(C)(4)(a) that
Thomas committed the offense while under post-release control for a prior offense.
See State v. Robinson, 3d Dist. Hancock No. 5-16-13, 2017-Ohio-2703, ¶ 14. (See
also Dec. 20, 2019 Tr. at 7); (PSI). Because only one R.C. 2929.14(C)(4)(a)-(c)
factor needs to be supported by the record, we need not address any argument
Thomas raises regarding the trial court’s findings under R.C. 2929.14(C)(4)(b) or
(c). See id., citing State v. Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145,
¶ 8 and State v. Bray, 2d Dist. Clark No. 2016-CA-22, 2017-Ohio-118, ¶ 32-33.
Therefore, we conclude that the record supports the trial court’s findings under R.C.
2929.14(C)(4).
Outcome: For these reasons, Thomas’s assignments of error are overruled.
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