Court of Appeals of Ohio, Third District, Hancock
from Hancock County Common Pleas Court Trial Court No. 2017
Alex Smith for Appellant.
M. Powell for Appellee
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.
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.
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
prosecutor engaged in prosecutorial misconduct.
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.
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 ...