Criminal Appeal From: Hamilton County Court of Common Pleas, TRIAL NO. B-1205509
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
(¶1} Kendall White was convicted of felonious assault and sentenced to six years in prison. He argues on appeal that his sentence should be reversed because it was excessive and constituted an abuse of the trial court's discretion. We disagree both about the standard of review and about the ultimate issue. The appropriate standard to review a felony sentence is the one set forth by the legislature in R.C. 2953.08(G)(2): in this case, whether "we clearly and convincing find * * * that the sentence is * * * contrary to law." We do not so find, and, therefore, affirm the judgment of the trial court.
(¶2} Kendall White approached Brandy Moore at a McDonald's restaurant and demanded a ride. When Ms. Moore refused, Mr. White punched her in the face. The punch broke her nose, fractured the bone of her left eye socket and caused bumps under her eyelid. She underwent surgery to repair her nose, but she still has difficulty breathing and may need another surgery.
(¶3} Mr. White pleaded guilty to a charge of felonious assault, a second-degree felony. Several weeks later, the trial court held a sentencing hearing. In mitigation, Mr. White and his attorney emphasized his history of psychological problems. The trial court engaged in a lengthy discussion with Mr. White, during which it noted Mr. White's long criminal history dating back over 30 years, including numerous violent offenses. At the conclusion of the hearing, the trial court imposed a prison sentence of six years. This appeal followed.
(¶4} Although Mr. White acknowledges that his sentence is within the statutory range, he argues that the trial court abused its discretion by failing to properly consider mitigating factors indicating that he showed genuine remorse, took full responsibility for his conduct by entering a plea, did not possess a weapon during the assault, and acknowledged a need to address his underlying mental health issues.
(¶5} We disagree with Mr. White's assertion that we should review his sentence for an abuse of discretion. The legislature has been explicit that "[t]he appellate court's standard for review [of a felony sentence] is not whether the sentencing court abused its discretion." R.C. 2953.08(G)(2). Rather, the standard is the one set forth by statute:
The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action ...