Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 04-03-2021
Case Style:
State of Ohio v. Travon D. Evans
Case Number: WD-20-020
Judge: Gene A. Zmuda
Court: IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
Plaintiff's Attorney: Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Toledo, OH - Criminal defense attorney represented Travon D. Evans with aggravated trafficking in drugs; Count 2: trafficking in cocaine; Count 3: aggravated possession of drugs; and Count 4: possession of cocaine charges.
{¶ 2} On June 26, 2018, the Ohio State Highway Patrol initiated a traffic stop of a
vehicle in which appellant was a passenger. As a result of that stop, officers discovered a
large plastic bag containing 68 grams of suspected heroin, which appellant confirmed
was his, and which appellant identified as fentanyl. Appellant also admitted that he made
regular runs between West Virginia and Detroit, around 20 to 30 times, with 150 grams
the most he ever transported. At the time, appellant was facing federal charges for his
drug trafficking activities.
{¶ 3} On June 6, 2019, appellant was indicted and charged with Count 1:
aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(f), a felony
of the first degree; Count 2: trafficking in cocaine in violation of R.C. 2925.03(A)(2) and
(C)(4)(f), a felony of the first degree; Count 3: aggravated possession of drugs in
violation of R.C. 2925.11(A) and (C)(1)(e), a felony of the first degree; and Count 4:
possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(e), a felony of the first
degree. Appellant was arraigned on October 29, 2019, and entered pleas of not guilty on
all counts.
{¶ 4} On December 3, 2019, appellant changed his plea to guilty, pursuant to a
plea agreement, to an amended Count 1, aggravated trafficking in drugs in violation of
R.C. 2925.03(A)(2) and (C)(1)(c), a felony of the third degree. The state agreed to
dismiss Counts 2, 3, and 4 as part of the plea agreement. The trial court accepted the
plea, found appellant guilty, and referred the matter for a presentence investigation. 3.
{¶ 5} Appellant appeared for sentencing on January 28, 2020. At the hearing,
appellant’s trial counsel acknowledged that appellant’s offense was “part of an organized
criminal activity,” but noted that appellant cooperated and took responsibility
immediately upon his apprehension, requesting leniency in the form of a community
control sanction or concurrent time to his lengthy federal prison sentence. As mitigating
factors, trial counsel commented on appellant’s desire to change and his wish to parent
his newborn child, as well as the lack of an intent to cause harm. The state, however,
emphasized the fact that appellant committed the offense while facing federal prosecution
for similar offenses.
{¶ 6} The trial court commented on the federal litigation in imposing sentence,
stating:
Some concerns the Court has, number one, this being on the heels of
your, I don’t know, 146 paragraph indictment in federal court, which
should be enough to have awoken you from your drug trafficking existence.
And if you really wanted to have time with your family, then that should
have been the time when you figured it out. But, instead you continued and
were transporting these drugs through Wood County and through Ohio.
The one thing that your attorney indicated that I would take serious
issue with is that you did not cause or intent to cause physical harm to any
person. I’m sorry, but trafficking in 68 grams of heroin clearly has an
intent to cause harm to other people. I see it everyday in this room, the 4.
harm that it’s caused to other people. Whether they’re serving time in
prison, their family has harm caused to them; or, the worst, the people that
are using that 68 grams of heroin and stealing from other people. It is a
vicious circle and is doing everything it can to destroy our civilization.
You are part of that, and 68 grams is a big part of that, not to even mention
the other drugs that were involved. The numerous drugs that were involved
in the federal case, your firearms violations in the federal case, all paints a
picture of a very involved, in the criminal enterprise, individual – beside the
drug trafficking being organized criminal activity.
In looking at recidivism, you were previously adjudicated a
delinquent child, you’ve not been rehabilitated to a satisfactory degree,
you’ve demonstrated a pattern of drug use that’s related to this offense, and
there are no factors indicating that your recidivism is less likely.
The Ohio Risk Assessment Tool indicates that you are a high risk of
re-offending.
* * *
So, at this time, the Court would impose a sentence of 24 months in
the Ohio Department of Rehabilitation and Corrections. I will order that
those years, or 24 months be served consecutively to the time being served
in the federal institution. 5.
{¶ 7} After the trial court imposed sentence, the following exchange occurred
between the trial court and the prosecutor:
THE COURT: Mr. Hoppenjans, do you have an opinion on the
necessity of the Court making consecutive findings when it’s not – the first
one is not my charge, or is it only when I have the charges before me?
MR. HOPPENJANS: I believe it’s only for the charges that are
presently before the Court.
THE COURT: That was my thought, as well. Thank you. If not,
then you can defend that.
{¶ 8} Days later, on January 31, the trial court held a second sentencing hearing,
“to indicate the statutory language that is required in the State of Ohio because it was
consecutive to a federal sentence.”
{¶ 9} At the second hearing, appellant’s trial counsel sought to clarify some issues.
First, counsel noted that the federal charges were not pending at the time appellant was
arrested in the Wood County case. Second, trial counsel clarified the criminal record,
noting a receiving stolen property disposition was deferred for the Youthful Training Act,
and other charges were minimal: a 2010 marijuana possession; a 2011 larceny and home
invasion, resulting in probation; and the federal case. Therefore, trial counsel argued,
there was no lengthy criminal record. Finally, trial counsel noted that appellant was not
under a court sanction at the time of his offense, as the federal indictment had not issued
until after June 26, 2018. 6.
{¶ 10} In response, the prosecutor indicated appellant was arrested for the same
activity, drug trafficking, in the federal case on June 7, 2018, and in the present case on
June 26, 2018. Furthermore, in statements to police, appellant admitted to transporting
drugs on 20-30 other occasions, with amounts ranging from 25 to 150 grams of heroin.
{¶ 11} The trial court then proceeded to consider the factors under R.C.
2929.14(C)(4), noting appellant’s criminal history, including the 2018 federal conviction.
As to consecutive sentence, the trial court stated:
The Court does find that these sentences are necessary to protect the
public from future crime or to punish the offender and that these
consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.
The Court also finds that at least two offenses were committed as
part of one or more courses of conduct, and the harm caused was so great or
unusual that no single prison term adequately reflects the seriousness of the
defendant’s conduct – as indicated by a long ongoing pattern of criminal
organized crime activity in trafficking in drugs.
{¶ 12} After this second hearing, the trial court journalized its sentencing entry,
containing a recitation of the factors required for a consecutive sentence. Appellant filed
a timely appeal of this judgment.
7.
III. Assignments of Error
{¶ 13} Appellant challenges the imposition of a consecutive sentence, raising a
single assignment of error:
THE TRIAL COURT IMPOSED A CONSECUTIVE SENTENCE
WITHOUT MAKING JUDICIAL FINDINGS AT APPELLANT’S
SENTENCING HEARING IN VIOLATION OF APPELLANT’S RIGHTS
UNDER R.C. 2929.14(C).
IV. Analysis
{¶ 14} Appellant acknowledges that his 24 month sentence is within the statutory
range for his offense, but argues the trial court failed to make the required findings in the
January 28, 2020 hearing. Appellant ignores the continued hearing, held on January 31,
2020, and does not address the findings made at that hearing. Because the trial court had
not yet journalized the judgment entry, it retained discretion to amend its findings in the
second hearing. See State v. Knight, 6th Dist. Sandusky No. S-05-007, 2005-Ohio-4347,
¶ 7, citing State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 599, 589 N.E.2d 1324 (1992),
citing State v. Tripodo, 50 Ohio St.2d 124, 363 N.E.2d 718 (1977), paragraph one of the
syllabus (addition citations omitted.).
{¶ 15} We review felony sentences under R.C. 2953.08(G)(2)(a), which defines
the standard and scope of review. State v. Jones, Slip Opinion No. 2020-Ohio-6729,
¶ 27, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 21. “R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if 8.
they find by clear and convincing evidence that the record does not support any relevant
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.’” Marcum at
¶ 22, citing State v. Belew, 140 Ohio St.3d 221, 2014-Ohio-2964, 17 N.E.3d 515, ¶ 12.
Clear and convincing evidence is a measure falling between a mere preponderance and
the “beyond a reasonable doubt” standard of proof; it is that degree of proof producing “a
firm belief or conviction as to the facts sought to be established.” Marcum at ¶ 22, citing
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 16} Here, appellant mistakenly argues that the trial court made no oral findings
at hearing to coincide with the findings recited in the journalized judgment entry, citing
to only the first hearing in which the trial court pronounced the sentence and concluded
no findings were required. At the second hearing, however, convened for the purpose of
addressing the statutory findings under R.C. 2929.14(C)(4), the trial court made the
appropriate findings.
{¶ 17} Pursuant to R.C. 2929.14(C)(4):
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve
the prison terms consecutively if the court finds that the consecutive service
is necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the 9.
seriousness of the offender’s conduct and to the danger the offender poses
to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 18} The trial court stated on the record that “these sentences are necessary to
protect the public from future crime or to punish the offender and that these consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public.” The trial court also determined that “at least
two offenses were committed as part of one or more courses of conduct, and the harm
caused was so great or unusual that no single prison term adequately reflects the 10.
seriousness of the defendant’s conduct – as indicated by a long ongoing pattern of
criminal organized crime activity in trafficking in drugs.”
{¶ 19} Therefore, based on the record, we find the trial court’s findings sufficient
under R.C. 2929.14(C)(4), and supported by the record. The trial court’s judgment,
requiring the sentence to be served consecutively to appellant’s federal prison term, was
therefore proper,1
and appellant’s sole assignment of error is without merit.
Outcome: Having found substantial justice has been done, we affirm the January 31,
2020 judgment of the Wood County Court of Common Pleas. Appellant is ordered to
pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: