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State v. Ball

Court of Appeals of Ohio, Fifth District, Licking

July 19, 2018

STATE OF OHIO Plaintiff-Appellee
v.
ZACHARIAH R. BALL Defendant-Appellant

          Criminal appeal from the Licking County Court of Common Pleas, Case No. 16-CR- 709

          For Plaintiff-Appellee HAWKEN FLANAGAN Assistant Prosecutor

          For Defendant-Appellant JOSHUA BEDTELYON AARON JONES ROGER SOROKA

          Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.

          OPINION

          Gwin, J.

         {¶1} Defendant-appellant Zachariah Ball ["Ball"] appeals his conviction and sentence after a negotiated guilty plea in the Licking County Court of Common Pleas.

         Facts and Procedural History

         {¶2} On February 1, 2017, the Licking County Grand Jury returned a two-count Indictment against Ball charging him with Operating a Vehicle with a Hidden Compartment Used to Transport a Controlled Substance, a felony of the 2nd degree in violation of Ohio Revised Code section 2923.241 (C)(F); and Possession of Marihuana, a felony of the 3rd degree in violation of Ohio Revised Code section 2925.11(A)(C)(3)(d).

         {¶3} Ball and the state agreed to a jointly recommended aggregate sentence of four years in prison. On December 12, 2017, a plea and sentencing hearing was conducted. Ball tendered pleas of guilty to Counts One and Two of the Indictment, as charged.

         {¶4} The trial court imposed a sentence of four years in prison on Count One and two years in prison on Count Two. The trial court ordered the sentences in Counts One and Two to be served consecutively, for an aggregate term of six years.

         Assignments of Error

         {¶5} Ball raises two assignments of error, {¶6} "I. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES AS THE RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES, AND THE SENTENCE IS CONTRARY TO LAW.

         {¶7} "II. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES AS COUNTS ONE AND TWO OF THE INDICTMENT SHOULD HAVE MERGED FOR SENTENCING PURPOSES."

         I.

         {¶8} In his First Assignment of Error Ball challenges the imposition of the consecutive terms on the ground that the trial court failed to make the findings required by R.C. 2929.14(C)(4).

         Standard of Appellate Review.

         {¶9} We review felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.

         {¶10} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court's findings under relevant statutes, or (2) the sentence is otherwise contrary to law.

         {¶11} Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross, 161 Ohio St. at 477 120 N.E.2d 118.

         {¶12} In addition, as has been noted,

If the court has properly made the required findings in order to impose consecutive sentences, we must affirm those sentences unless we "clearly and convincingly" find "[t]hat the record does not support the court's findings [.]"
It is important to understand that the "clear and convincing" standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it clear that "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion." As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.
It is also important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.

State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶19- 21. Accord, State v. Creech, 4th Dist., Scioto No. 16CA3730, 2017-Ohio-6951, ¶11; State v. Withrow, 2nd Dist. Clark No. 2015-CA-24, 2016-Ohio-24, ¶22; State v. Mason, 12th Dist. Butler No. CA2014-10-217, 2015-Ohio-1931, ¶8; State v. Taylor, 5th Dist. Holmes No. 12 CA 18, 2013-Ohio-5751, ¶69; State v. Higginbotham, 10th Dist. Franklin Nos. 17AP-147, 17AP-150, 2017-Ohio-7618, ¶11; State v. Moss, 11th Dist. Ashtabula No. 2016-A-0046, 2017-Ohio-0046, ¶22.

         ISSUE FOR APPEAL.

         Whether the record does not support the trial court's findings under relevant statutes, or the sentence is otherwise contrary to law.

         R.C. 2929.13(B).

         {¶13} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony. Ball pled guilty to a felony of the third degree and a felony of the second degree. Accordingly, this section does not apply to Ball's case.

         R.C. 2929.13(D).

         {¶14} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or second degree, for a felony drug offense that is a violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, and for a violation of division (A)(4) or (B) of section 2907.05 of ...


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