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Date: 03-29-2021
Case Style:
STATE OF OHIO v. BRANDON LAYNE
Case Number: 20CA1116
Judge: George C. Smith
Court: IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
Plaintiff's Attorney: David Kelley, Adams County Prosecutor, Kris D. Blanton, Assistant Adams
County Prosecutor
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Circleville, OH - Criminal defense attorney represented Brandon Layne with a burglary charge.
In its brief, Appellee State of Ohio acknowledges agreement
with the statement of the case and statement of facts as set forth in
Appellant’s brief. On October 28, 2019, Appellant entered Cox’s
Laundromat in Manchester, Ohio during normal business hours, climbed a
wall, and entered an office belonging to the owner of the laundromat.
Appellant located keys used to open a change dispenser and stole $550.00
from the dispenser. The offense was captured on video.
{¶3} Thereafter, Appellant was indicted on one count of burglary, R.C.
2911.12(A)(3), a felony of the third degree, and breaking and entering, R.C.
2911.13(A), a felony of the fifth degree. Appellant admitted his
involvement in the offense and on May 6, 2020, entered a plea of guilty to
the burglary count. The other count was dismissed.
{¶4} Pursuant to the plea agreement, Appellant agreed to pay
restitution of $550. During the trial court proceedings, Appellant twice
tested positive for illicit drugs, thus violating the terms of his bond.
Appellant also gave the bond supervisor a false name and was subsequently
convicted of a misdemeanor obstruction of justice. At sentencing, Appellant Adams App. No. 20CA1116 3
was sentenced to a stated prison term of two years. This timely appeal
followed.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED BY IMPOSING A
TWO YEAR PRISON SENTENCE THAT WAS
UNSUPPORTED BY THE RECORD.”
A. STANDARD OF REVIEW
{¶5} R.C. 2953.08(G)(2) defines appellate review of felony
sentences and provides, in relevant part, as follows:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the sentencing
court. The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing court
for resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly
and convincingly finds either of the following: (a) That the
record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of
the Revised Code, whichever, if any, is relevant; (b) That the
sentence is otherwise contrary to law.
{¶6} “ ‘ “[A]n appellate court may vacate or modify a felony sentence
on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court's findings under relevant statutes or Adams App. No. 20CA1116 4
that the sentence is otherwise contrary to law.” ’ ” State v. Barnes, 4thDist.
Ross No. 19CA3687, 2020-Ohio-3943, at ¶ 32, quoting State v. Pierce, 4th
Dist. Pickaway No. 18CA4, 2018-Ohio-4458 ¶ 7, quoting State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. This is a
deferential standard. Id. at 23. Furthermore, “appellate courts may not apply
the abuse-of-discretion standard in sentencing-term challenges.” Id. at ¶ 23.
Additionally, although R.C. 2953.08(G) does not mention R.C. 2929.11 or
2929.12, the Supreme Court of Ohio has determined that the same standard
of review applies to findings made under those statutes. Id. at ¶ 23 (stating
that “it is fully consistent for appellate courts to review those sentences that
are imposed solely after consideration of the factors in R.C. 2929.11 and
2929.12 under a standard that is equally deferential to the sentencing court,”
meaning that “an appellate court may vacate or modify any sentence that is
not clearly and convincingly contrary to law only if the appellate court finds
by clear and convincing evidence that the record does not support the
sentence”).
{¶7} “ ‘ “Clear and convincing evidence is that measure or degree of
proof which is more than a mere ‘preponderance of the evidence,’ but not to
the extent of such certainty as is required ‘beyond a reasonable doubt’ in
criminal cases, and which will produce in the mind of the trier of facts a firm Adams App. No. 20CA1116 5
belief or conviction as to the facts sought to be established.” ’ ” Barnes,
supra, at ¶ 33, quoting State v. Marcum at ¶ 22, quoting Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954).
{¶8} Further, as we observed in State v. Pierce, supra, the
Eighth District Court of Appeals has noted as follows:
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. Pierce, supra, at ¶ 8, quoting State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20-
21.
Barnes, supra, at ¶ 34.
{¶9} We are also mindful that an appellate court should not,
however, substitute its judgment for that of the trial court because the
trial court is in a better position to judge the defendant's chances of
recidivism and determine the effects of the crime on the victim. SeeAdams App. No. 20CA1116 6
State v. Hill, 3d Dist. Wyandot No. 16015006, 2015-Ohio-4724, at
¶ 11; State v. Noble, 3d Dist. Logan No. 8–14–06, 2014-Ohio-5485,
¶ 9, citing State v. Watkins, 3d Dist. Auglaize No. 2–04–08,
2004-Ohio-4809, ¶ 16, citing State v. Jones, 93 Ohio St. 3d 341, 400,
754 N.E.2d 1252 (20010) (abrogation recognized by State v. Mathis,
109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1.)
B. LEGAL ANALYSIS
{¶10} The maximum penalty Appellant was facing for
burglary, R.C. 2911.12(A)(3), was thirty-six months. R.C.
2929.14(A)(3)(b). Appellant concedes that the two-year prison sentence he
received is statutorily authorized by law. However, Appellant argues that
his prison sentence imposed by the trial court was not supported by the
record in his case. Appellant’s argument asserting his sentence is contrary
to law focuses on (1) the strictly monetary type of harm his burglary offense
caused; (2) the lesser sense of seriousness of his offense; and (3) Appellant’s
acceptance of responsibility and cooperation with law enforcement.
{¶11} Appellee responds that at sentencing, the trial court stated it
considered the principles and purposes of sentencing, pursuant to R.C.
2929.11, and that it also considered the seriousness and recidivism factors Adams App. No. 20CA1116 7
listed in R.C. 2929.12. Appellee also argues that there is nothing in the
record indicating that the trial court neglected to follow the dictates of R.C.
2929.11 and R.C. 2929.12 and nothing to suggest that the imposition of the
two-year sentence was clearly and convincingly contrary to law. We will
jointly consider Appellant’s arguments.
{¶12} “ ‘ “[T]rial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make
findings or give their reasons for imposing maximum, * * * or more than the
minimum sentences.” ’ ” State v. Campell, 4thDist. Ross No.
19CA3683, 2020-Ohio-3146, at ¶17, quoting State v. Davis, 4th Dist.
Highland No. 06CA21, 2007-Ohio-3944, at ¶ 41, quoting State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 100.
“However, in exercising their discretion, trial courts must still consider R.C.
2929.11 and R.C. 2929.12 before imposing a sentence within the authorized
statutory range.” (Emphasis added.) Id., citing Foster at ¶ 105. R.C.
2929.11 provides that a court “shall be guided by the overriding purposes of
felony sentencing, which are to protect the public from future crime and to
punish the offender using the minimum sanctions to accomplish those
purposes without unnecessary” burdening of government resources. State v.
Watson 4th Dist. Meigs Nos. 18CA20, 2019-Ohio-4385, at ¶ 12. “ ‘To Adams App. No. 20CA1116 8
achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of the
offense, the public, or both.’ ” Id., quoting R.C. 2929.11. “R.C. 2929.12
provides a non-exhaustive list of factors a trial court must consider when
determining the seriousness of the offense and the likelihood that the
offender will commit future offenses.” Id., citing State v. Sawyer, 4th Dist.
Meigs No. 16CA2, 2017-Ohio-1433, at ¶ 17.
{¶13} In support of his position that his sentence is contrary to law,
Appellant first argues that he entered a business that was opened to the
public and trespassed into a private area of the business to commit a theft
offense. He argues that these actions likely caused less serious emotional
harm to the victim as compared to the emotional harm caused a homeowner
in his or her private residence. Next, Appellant concedes that legally his
conduct constitutes burglary. However, he argues his conduct is not as
serious as conduct that would normally constitute an offense of burglary.
Finally, Appellant emphasizes that he accepted full responsibility by
entering a plea of guilty and was cooperative with law enforcement. Despite
the merits of these considerations, we are not persuaded that Appellant’s
sentence is contrary to law. Adams App. No. 20CA1116 9
{¶14} Appellant points to the evidence in the record which
demonstrates that at the time of sentencing he was 28 years of age and
married (but separated) with two children. He had been temporarily laid off
from his job at a car wash due to the coronavirus pandemic. Appellant
acknowledged his prior felony history dating back to 2011 and prior
misdemeanor convictions. Appellant also acknowledged having a severe
drug problem. He acknowledged he had twice failed to successfully
complete drug treatment at STAR when given that opportunity in
conjunction with the prior felony convictions.
{¶15} Our review of these proceedings demonstrates that in this
case, Appellant entered a plea of guilty to burglary on May 6, 2020.
The transcript of the change of plea hearing demonstrates that the trial
court began by confirming that Appellant had completed the 10th
grade, was able to read and write English, and was not under the
influence of alcohol, drugs, prescription medications or illegal
substances which would cause him to be confused. The prosecutor
explained the plea negotiations which Appellant’s counsel confirmed.
Appellant confirmed that he understood the plea agreement. The trial
court explained the maximum penalty and fine and other statutorily
required notifications. Adams App. No. 20CA1116 10
{¶16} The trial court also explained Appellant’s constitutional
rights. Appellant confirmed his understanding of those and his
satisfaction with his attorney. The trial court then gave the prosecutor
and Appellant’s attorney the opportunity to argue for Appellant’s
sentence. The court explained to Appellant that it was not bound by
the arguments and that the sentence was solely in the court’s
discretion. Appellant further acknowledged his understanding of the
above. The trial court accepted Appellant’s change of plea and
ordered a pre-sentence investigation report prior to sentencing.
{¶17} Appellant’s counsel requested a recognizance bond while
awaiting sentencing. Appellant indicated he would pursue job and
drug rehabilitation opportunities if released. Appellant was
completing a misdemeanor sentence. The trial court agreed to set a
recognizance bond and Appellant would be released from jail after
completing the misdemeanor sentence. Sentencing was scheduled for
July 1, 2020.
{¶18} Appellant instead found himself back in court for
sentencing on May 14, 2020, after violating the terms and conditions
of his bond by testing positive for methamphetamine, amphetamine,
and marijuana on May 12th. His attorney argued as follows: Adams App. No. 20CA1116 11
[O]bviously Mr. Layne is back in jail.* * * He had to finish a
sentence for Judge Gabbert * * *. He says he was out, uh, less
than 24 hours. While he was out he did try to contact FRD
about getting in there. Um, but obviously there’s the positive
drug test. Um, upon entering back into jail, he feels that, um,
the whole problem, uh in his life was, is an addiction to
methamphetamine. Um, he hasn’t been able to get into
treatment with [sic] 24 hours that he was out. Um, he did do
STAR previously, but it has been, I think he told me 10 years
ago. Um, so he’s just asking the Court to consider, you know,
letting them do STAR again, or, um placing him on probation
and letting him get into an inpatient facility. * * * [W]e’re
asking the Court to consider placing him on probation will [sic]
STAR as a condition of probation.
{¶19} Appellant also asked the court as follows:
I want to get myself into treatment or rehab, even if it’s
outpatient, I don’t care just something. And I honestly
think that I would be fine at that point because, uh, that’s
my only problem is it’s just a drug addiction. I honestly
believe that.
{¶20} The prosecutor declined to make a recommendation or
argument as to sentencing. The trial court began by stating it had
considered the record, the oral arguments, and the presentence investigation
report prepared, along with considering the principles and purposes of
sentencing of R.C. 2929.11 and balancing the seriousness and recidivism
factors of 2929.12. The trial court further discussed Appellant’s pre-sentence
investigation report (PSI). Adams App. No. 20CA1116 12
{¶21} According to the PSI, Appellant had a prior adult criminal
history, which included breaking and entering, grand theft, and grand theft
auto felony convictions from 2011. The court observed that he was placed
on community control and ordered to complete STAR. Sometime later,
Appellant violated community control and was sent back to STAR.
Subsequent to that, due to another community control violation, community
control was terminated and Appellant was given credit for time served. The
trial court also discussed Appellant’s record of misdemeanor convictions and
observed that Appellant had a charge pending in Clermont County
Municipal Court since 2018.
{¶22} In the underlying case, the trial court pointed out Appellant had
given a false name with his bond supervisor and was convicted of
obstructing official business. The court also pointed out Appellant admitted
prior use of marijuana, cocaine, opiates, Oxycontin, methamphetamines, and
alcohol. The court also noted during the underlying proceedings Appellant
had twice violated the terms and conditions of his bond by testing positive
for drugs including methamphetamine, marijuana, opiates, and fentanyl.
The trial court also found Appellant had no genuine remorse for his actions.
{¶23} In concluding sentencing, the trial court expressed frustration
and concern: Adams App. No. 20CA1116 13
I don’t know what to do to try and shake your conscience
* * *. I’m more in the mode of trying to save your life and
I don’t disagree with you that prison may not help you but
I’m just trying to protect the public and save your life at
this point. After due consideration, the Court finds that
the defendant is no longer amenable to available
community control options [sic] is therefore that the
defendant shall serve a stated prison term of two years in
the Ohio Department of Rehabilitation and Corrections.
{¶24} In light of the foregoing, we cannot conclude that Appellant
has met his burden of demonstrating by clear and convincing evidence that
the record does not support his two-year prison sentence for burglary of the
laundromat. Nor can we conclude that the prison sentence is contrary to
law. “ ‘ “The weight to be given to any one sentencing factor is purely
discretionary and rests with the trial court.” ’ ” State v. Franklin, 8thDist.
Cuyahoga No. 107482, 2019-Ohio-3760, at ¶ 46, quoting State v. Price, 8th
Dist. Cuyahoga No. 104341, 2017-Ohio533, ¶ 20, quoting State v. Ongert,
8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v.
Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A lawful
sentence “ ‘cannot be deemed contrary to law because a defendant disagrees
with the trial court's discretion to individually weigh the sentencing factors.
As long as the trial court considered all sentencing factors, the sentence is
not contrary to law and the appellate inquiry ends.’ ” Price, supra, quoting Adams App. No. 20CA1116 14
Ongert at ¶ 12. See also State v. Bailey, 8th Dist. Cuyahoga No. 107216,
2019-Ohio-1242, ¶ 15.
{¶25} In an effort to challenge the adequacy of the trial court's
statutory considerations, Appellant is merely asking this court to
substitute our judgment for that of the trial court, which, as stated,
appellate courts are not permitted to do. See Franklin, supra, at ¶ 47,
quoting State v. McCoy, 8th Dist. Cuyahoga No. 107029, 2019-Ohio868, at ¶ 19 (“We cannot substitute our judgment for that of the
sentencing judge.”). As in Franklin, by asking this court to view the
seriousness and scope of his conduct in light of the relevant mitigating
factors, Appellant is encouraging this court to independently weigh
the sentencing factors, which appellate courts are also not permitted to
do. See Franklin, supra; Ongert at ¶ 14; Price at ¶ 20; Bailey at ¶ 15;
State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10,
and State v. Anderson, 8th Dist. Cuyahoga No. 103490, 2016Ohio-3323, ¶ 9.
{¶26} Considering that the trial court considered the appropriate
statutes, made the appropriate findings, and there was evidence in the record
to support its findings, Appellant has failed to prove by clear and convincing
evidence that his sentence is unsupported by the record or otherwise contrary Adams App. No. 20CA1116 15
to law.
Outcome: We find no merit to Appellant’s sole assignment of error.
Accordingly, it is hereby overruled.
Plaintiff's Experts:
Defendant's Experts:
Comments: