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State v. Stewart

Court of Appeals of Ohio, Eleventh District, Trumbull

April 30, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
KENYEL OTIS STEWART, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2016 CR 00772.

          Dennis 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).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} 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 remanded.

         {¶2} 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) & (C)(6)(a).

         {¶3} A jury trial was held May 15 through May 16, 2017. The following are uncontested facts gathered from the record.

         {¶4} 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.

         {¶5} 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[.]"

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 ...

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