Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Christopher R. Fortunato
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Christine M. Vacha Assistant
BEFORE: Celebrezze, J., Kilbane, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
Defendant-appellant, William Frazier ("appellant"),
brings this appeal challenging the trial court's sentence
for drug possession, possessing criminal tools, and violating
postrelease control. Specifically, appellant argues that the
trial court made improper and prejudicial remarks during
sentencing, erred by imposing a maximum sentence on the drug
possession count, and erred by ordering him to serve the
remainder of his postrelease control term consecutively.
After a thorough review of the record and law, this court
affirms in part, vacates in part, and remands for further
proceedings consistent with this opinion.
Factual and Procedural History
In Cuyahoga C.P. No. CR-15-600584-B, the Cuyahoga County
Grand Jury returned an eight-count indictment on November 13,
2015, against appellant and his codefendant, Aaron Pittmon.
Counts 3 through 8 in the indictment pertained to appellant.
Appellant was charged with: Count 3 - drug possession, a
fifth-degree felony in violation of R.C. 2925.11(A), with a
one-year firearm specification and forfeiture specifications;
Count 4 - possessing criminal tools, a fifth-degree felony in
violation of R.C. 2923.24(A), with forfeiture specifications;
Count 5 - drug possession, a fifth-degree felony in violation
of R.C. 2925.11(A), with forfeiture specifications; Count 6 -
possessing criminal tools, a fifth-degree felony in violation
of R.C. 2923.24(A), with forfeiture specifications; Count 7 -
drug possession, a fifth-degree felony in violation of R.C.
2925.11(A), with forfeiture specifications; and Count 8 -drug
possession, a minor misdemeanor in violation of R.C.
2925.11(A), with forfeiture specifications. Appellant was
arraigned on November 18, 2015. He pled not guilty to the
The parties reached a plea agreement. On January 7, 2016,
appellant pled guilty to an amended Count 3, drug possession,
without the one-year firearm specification. Further,
appellant pled guilty to possessing criminal tools as charged
in Counts 4 and 6 of the indictment. Pursuant to the plea
agreement, appellant agreed to forfeit $40 in U.S. currency,
a digital scale, three cell phones, a 2005 Buick LaCrosse,
and a firearm. The remaining counts and specifications were
nolled. During the change of plea hearing, appellant's
counsel advised the trial court that appellant was on
postrelease control when he committed these offenses.
trial court ordered a presentence investigation report and
set the matter for sentencing.
The trial court held a sentencing hearing on January 28,
2016. Appellant's counsel, appellant, and the prosecutor
addressed the court. The trial court imposed a prison term of
one year: one year on the drug possession count and six
months on each count of possessing criminal tools. The trial
court ordered the counts to run concurrently. Regarding the
postrelease control violation, the trial court ordered
appellant to serve the remainder of his sentence,
approximately three years, consecutively to the one-year
Appellant, acting pro se, filed an appeal on March 21, 2016.
This court appointed appellate counsel to represent
On August 1, 2016, this court, sua sponte, dismissed the
appeal based on appellant's failure to file a brief
However, on August 12, 2016, this court granted
appellant's motion for reconsideration and vacated the
prior sua sponte dismissal of the appeal.
On November 9, 2016, this court concluded that the trial
court's January 28, 2016 sentencing entry did not
accurately reflect the sentence imposed in open court. As a
result, this court remanded the matter to the trial court for
a nunc pro tunc sentencing entry. The trial court issued a
nunc pro tunc sentencing entry on December 30, 2016.
On February 8, 2017, this court remanded the matter to the
trial court for a correction of the judgment of conviction so
that it contained, in a single document, both the fact of
conviction and sentence for each count. On February 16,
2017, the trial court issued a nunc pro tunc sentencing
On March 29, 2017, this court again remanded the matter to
the trial court with instructions to enter a sentencing entry
that complied with Baker and Lester. The
trial court issued a nunc pro tunc journal entry on March 29,
Appellant assigns three errors for review:
I. The trial court abused its discretion when it interjected
personal views of her own life in comparison to the
appellant's [allocution] under Crim.R. 32 at sentencing.
II. The trial court erred when it sentenced the appellant to
the maximum sentence on a felony of the fifth degree.
III. The trial court erred when it invoked R.C. 2929.141 and
imposed an additional three year sentence to be served
consecutively to the one year sentence in Case No. 600584.
Law and Analysis
Trial Court's Statements
Appellant's first assignment of error pertains to certain
statements that the trial court made before imposing its
sentence. During the sentencing hearing, the trial court
inquired as to why appellant decided to use heroin for the
first time. Appellant explained that he was going through a
lot of stress, but acknowledged that it did not excuse his
actions. Thereafter, the trial court engaged in a colloquy
with appellant during which the trial court examined the
specific stressors that appellant had encountered in his
life. Furthermore, the trial court explained that everyone
experiences stress and suggested that many people encounter
more stress than appellant without resorting to drug use. For
instance, the trial court emphasized that appellant has yet
to encounter common stressors such as marital problems or
divorce, financial difficulties, raising children, and
supporting children financially.
Appellant takes issue with the trial court's statements
regarding stress, and challenges the statements on two
grounds. First, he argues that the trial court abused its
discretion by improperly interjecting personal views during
the sentencing hearing. Furthermore, he appears to argue that
the trial court abused its discretion by "turn[ing] what
was at maximum, a one year sentence that was amenable to a
community control sanction * * * into a four year
This court does not review a trial court's sentence for
an abuse of discretion. As set forth in further detail below,
we review felony sentences under the standard 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, ¶ 16. R.C.
2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may increase, reduce, or modify a sentence,
or it may vacate and remand the matter for resentencing, only
if we clearly and convincingly find that either the record
does not support the sentencing court's statutory
findings or the sentence is contrary to law. State v.
Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99,
Second, appellant appears to raise a judicial bias argument.
Specifically, he argues that the trial court's statements
regarding stress were prejudicial, indicated that the court
was biased against him, and denied him a fair sentencing
hearing. As such, ...