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State v. Frazier

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 12, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
WILLIAM N. FRAZIER DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-600584-B

          ATTORNEY FOR APPELLANT Christopher R. Fortunato

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Christine M. Vacha Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., Kilbane, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} 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.

         I. Factual and Procedural History

         {¶2} 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 indictment.

         {¶3} 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. [1] The trial court ordered a presentence investigation report and set the matter for sentencing.

         {¶4} 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 prison sentence.

         {¶5} Appellant, acting pro se, filed an appeal on March 21, 2016. This court appointed appellate counsel to represent appellant.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.[2] On February 16, 2017, the trial court issued a nunc pro tunc sentencing entry.

         {¶9} 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, 2017.

         {¶10} 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.

         II. Law and Analysis

         A. Trial Court's Statements

         {¶11} 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.

         {¶12} 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 sentence[.]"

         {¶13} 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, ¶ 7.

         {¶14} 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, ...


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