Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas. Case No. 2016 CR 00772.
Watkins, Trumbull County Prosecutor; Michael A. Burnett and
Ashleigh Musick, Assistant Prosecutors, Administration
Building, Fourth Floor, (For Plaintiff-Appellee).
Michael A. Partlow, (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Kenyel Otis Stewart, appeals from the June 7, 2017
sentencing entry of the Trumbull County Court of Common
Pleas. Appellant takes issue with the trial court's
imposition of consecutive sentences. For the following
reasons, the judgment of the trial court is affirmed and
On November 7, 2016, appellant was indicted by the Trumbull
County grand jury on one count of Possession of Heroin, a
fifth-degree felony, in violation of R.C. 2925.11(A) &
A jury trial was held May 15 through May 16, 2017. The
following are uncontested facts gathered from the record.
Appellant was incarcerated at the Trumbull Correctional
Institution at the time of the incident giving rise to the
charge. On December 20, 2015, Corrections Officer Travis
Patchin detected an odor of marijuana coming from
appellant's cell as he was making his rounds. Officers
searched appellant and found he was concealing a bag of
contraband in his mouth. Testing revealed the bag contained
0.143 grams of heroin.
Sergeant Seth Howard testified he investigated the incident
and interviewed appellant. Sergeant Howard testified that
during the interview "[appellant] stated that he likes
to get high. He did a line of heroin. He paid $30.00 for the
heroin. He would not give up the information as to where the
heroin came from[.]"
Appellant testified he had a difficult childhood and was
raised around drugs. Appellant stated he had numerous
"run-ins" with the law and was charged with his
first drug-related offense when he was 18 years old. He
admitted that a drug-related incident was the reason he was
incarcerated when he committed the instant offense. Appellant
further admitted he was using drugs on the morning
corrections officers found the bag of heroin in his mouth.
Appellant explained he was using the drugs during a moment of
weakness; his step-father, who was a father figure to
appellant, had recently passed away, and he had also recently
learned someone close to him had been shot in the head.
Appellant testified he wanted to get treatment after the
incident because he did not want to be part of the heroin
epidemic when he was released. Appellant explained the reason
he refused to disclose who had given him the heroin was
because sharing that information could have put him in
harm's way. Appellant testified he was not disputing he
was using drugs but wanted to explain his side of the story
and the background leading up to his actions.
Appellant was convicted, and the trial court ordered a
presentence investigation ("PSI"). Prior to
sentencing, the state submitted a sentencing memorandum, in
which it recommended the trial court sentence appellant to 12
months in prison to be served consecutive to the sentence
appellant was serving at the time of the incident. The state
noted appellant had a long criminal history, including
convictions for attempted robbery, drug possession, and two
counts of intimidation, and appellant was incarcerated at the
time of the instant offense.
A sentencing hearing was held June 5, 2017. The trial judge
addressed appellant, stating:
* * * I think your attorney, not that I didn't already
know from the record check in here, but your record is at
least the length that your counsel indicated. And in and of
itself, for somebody your age, that's a relatively
significant record. But the thing the Court is really
bothered by is, people commit crimes and for whatever reasons
go back and commit other crimes, that happens, background,
who they associate with, all of those things. But when you
were incarcerated the first time as an adult, you didn't
learn. And the second - - this time when you were
incarcerated, you chose to commit another felony while being