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State v. Powers

Court of Appeals of Ohio, Third District, Hancock

August 19, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MARK A. POWERS, DEFENDANT-APPELLANT.

          Appeal from Hancock County Common Pleas Court Trial Court No. 2017 CR 00394

         Judgment Affirmed

          W. Alex Smith for Appellant.

          Steven M. Powell for Appellee

          OPINION

          WILLAMOWSKI, JUDGE.

         {¶1} Defendant-appellant Mark Powers ("Powers") brings this appeal from the judgment of the Court of Common Pleas of Hancock County sentencing him to 40 months in prison on two counts of aggravated trafficking in drugs. On appeal Powers claims that the prosecutor engaged in misconduct by making inflammatory statements at sentencing. For the reasons set forth below, the judgment is affirmed.

         Procedural History

         {¶2} On December 12, 2017, the Hancock County Grand Jury indicted Powers on two counts of Aggravated Trafficking in Drugs, one a felony of the third degree and one a felony of the fourth degree. Doc. 1. On October 19, 2018, Powers changed his plea from not guilty to guilty. Doc. 77. A hearing was held that same day and the trial court accepted the plea of guilty and set the matter for a sentencing hearing after the presentence investigation report ("PSI") was completed. Doc. 83.

         {¶3} A sentencing hearing was held on December 17, 2018. Doc. 94. The trial court specifically noted that Powers was serving post-release control ("PRC") at the time of the new offenses. Id. After reviewing the PSI, listening to the arguments of the State and Powers, and personally addressing Powers, the trial court ordered Powers to serve an aggregate prison term of 52 months - 24 months for Count One, 16 months for Count Two, and one year for violation of PRC. Powers filed his notice of appeal from this judgment on January 4, 2019. Doc. 99. On appeal, he raises the following assignment of error

         The prosecutor engaged in prosecutorial misconduct.

         Prosecutorial Misconduct

         {¶4} The sole assignment of error in this case is that the prosecutor allegedly engaged in misconduct at the sentencing hearing by making inflammatory statements. "[T]he standard for prosecutorial misconduct is whether the comments and/or questions were improper, and, if so, whether they prejudiced appellant's substantial rights." State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749. Prosecutorial misconduct is only reversible error if it can be said that the misconduct deprived the appellant of a fair trial when the entire record is considered. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Any effect of an improper argument made by the State at sentencing can by cured by the trial court's independent assessment of the sentencing factors. State v. Lundgren, 73 Ohio St.3d 474, 489, 1995-Ohio-227, 653 N.E.2d 304.

         {¶5} In this case, Powers argues that the allegedly inflammatory statements made by the prosecutor may have caused the trial court to impose a more severe sentence than otherwise would have been ordered. At the sentencing hearing the State requested the maximum sentence be imposed on each of the counts and that Powers be ordered to serve one year for the PRC violation, all consecutive for an aggregate prison term of 66 months. Tr. 5. The prosecutor, in supporting his argument made the following statements.

Now, what I want to do is address the issues with regard to - to the sentence, and that is that the Court's had the opportunity to hear some of the evidence and some of the testimony of officers in this case, in suppression hearings, and I - I don't think anybody can deny the fact that the Defendant here is somebody who has been a bane in the side of law enforcement, has been known to them for some time. He's able, in the eyes of law enforcement, able to evade prosecution on many of the cases; however, he does have a history of -- of drug use, drug trafficking, and the Court has been able to pick up on that in the [PSI]. Almost all of his prior history relates directly to drug trafficking and drug use. There are some Municipal Court ...

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