State v. Pate

S
[Cite as State v. Pate, 2021-Ohio-1089.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                            No. 109758
                 v.                              :

DEMARKES T. PATE,                                :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 1, 2021


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-19-638012-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Frank Romeo Zeleznikar, Assistant
                 Prosecuting Attorney, for appellee.

                 Thomas Rein, for appellant.


KATHLEEN ANN KEOUGH, P.J.:

                Defendant-appellant, Demarkes T. Pate, pleaded guilty to receiving

stolen property (a motor vehicle) in violation of R.C. 2913.51, a fourth-degree felony.

The trial court sentenced him to 18 months in prison, the maximum sentence for a

fourth-degree felony. Pate now appeals his sentence, contending that “the record
clearly and convincingly fails to support the imposition of a maximum sentence” for

his offense.

               We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 

146 Ohio St. 3d 516

, 2016-ohio-1002, 

59 N.E.3d

1231

, ¶ 1, 21. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,

modify, or vacate and remand a challenged felony sentence if the court clearly and

convincingly finds either that the record does not support the sentencing court’s

findings as required by relevant sentencing statutes, or the sentence is otherwise

contrary to law.

               When sentencing a defendant, a court must consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,

2013-Ohio-5025, ¶ 7. A sentence is contrary to law if it falls outside the statutory

range for the offense or if the sentencing court fails to consider the purposes and

principles of sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C.

2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.

Conversely, if the sentence is within the statutory range for the offense and the trial

court considers both the purposes and principles of felony sentencing in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12, the court’s

imposition of any prison term — even a maximum term — for a felony conviction is

not contrary to law. State v. Woodard, 8th Dist. Cuyahoga No. 106300, 2018-Ohio-
2402, ¶ 35; see also State v. Clay, 8th Dist. Cuyahoga No. 108500, 2020-Ohio-1499,

¶ 26, citing Pawlak at ¶ 58.

             Under R.C. 2929.11(A), a felony sentence shall be “reasonably

calculated” to achieve three “overriding purposes”: to (1) protect the public from

future crime by the offender and others; (2) punish the offender; and (3) promote

the effective rehabilitation of the offender using the minimum sanctions the court

determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources. In addition, a sentence for a felony conviction

must be “commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).

            R.C. 2929.12 gives the sentencing court discretion to determine the best

way to comply with the purposes and principles of sentencing set forth in R.C.

2929.11 when imposing a sentence. State v. Bridges, 8th Dist. Cuyahoga No.

107281, 2019-Ohio-1769, ¶ 10; R.C. 2929.12(A). It sets forth a nonexhaustive list of

factors a trial court must consider in determining the seriousness of the offender’s

conduct and the likelihood of recidivism. Those factors include the offender’s

history of criminal convictions, whether the offender has responded favorably to

sanctions previously imposed for criminal convictions, whether the offender has

demonstrated remorse, and any other factors relevant to achieving the purposes and

principles of sentencing. R.C. 2929.12(A); (D)(2); (D)(3); and (D)(5).
             Nevertheless, R.C. 2929.11 and 2929.12 are not fact-finding statutes

and thus, although the trial court must “consider” the factors, it is not required to

make specific findings on the record regarding its consideration of those factors,

even when imposing a more-than-minimum sentence. Bridges at ¶ 11, citing State

v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 11, and

State v. Rouse, 8th Dist. Cuyahoga No. 107379, 2019-Ohio-708, ¶ 13. Indeed,

consideration of the factors is presumed unless the defendant affirmatively shows

otherwise. State v. Wright, 8th Dist. Cuyahoga No. 106175, 2018-Ohio-965, ¶ 16.

            Pate contends that the 18-month maximum sentence for his offense is

“unwarranted” because, although he had a criminal record, he had graduated from

high school, had a job at a movie theater, and was working on obtaining his

commercial driver’s license. He further contends that his 18-month sentence does

not serve the requirement of R.C. 2929.11 that the trial court use the minimum

sanctions it can to protect the public, punish the offender, and rehabilitate the

offender without imposing an unnecessary burden on state on local resources.

Finally, he asserts that a review of the R.C. 2929.12 factors does not support the

sentence, and that the record indicates the trial court did not even consider the R.C.

2929.12 seriousness and recidivism factors. Pate’s arguments are wholly without

merit.

             The record reflects that prior to sentencing Pate, the trial court

reviewed Pate’s extensive criminal history and periods of incarceration as set forth

in the presentence investigation report (“PSI”). The court noted that Pate’s criminal
history includes multiple convictions for menacing, attempted assault, disorderly

conduct, theft, underage alcohol possession, criminal trespass, resisting arrest,

receiving stolen property, and public intoxication that occurred over several years

and in various jurisdictions across the state of Ohio.

             The trial court also noted that there were active warrants for Pate’s

arrest pending in multiple jurisdictions at the time of sentencing. As set forth in the

PSI, Pate had active warrants for assault, criminal damaging, disorderly conduct,

underage consumption, and aggravated menacing in the New Philadelphia

Municipal Court; for aggravated trespass and aggravated menacing in the

Willoughby Municipal Court; criminal damaging, menacing, trespass, and grand

theft in the Mentor Municipal Court; criminal trespass in the Cleveland Municipal

Court; and receiving stolen property in the Painesville Municipal Court.

              The trial court also reviewed Pate’s “very negative” institutional

summary, which it found reflected numerous infractions, fighting, and extremely

disrespectful and vulgar language to the staff.

             When the trial judge gave Pate an opportunity to speak, Pate told her

the summary was “all lies,” and that staff “taunt the inmates.” Further, he told the

judge that this case was merely the result of a “big misunderstanding,” and that his

ex-girlfriend reported the car stolen merely because she was jealous that he had two

women in the car with him. Finally, he said that he had a concussion during the plea

hearing and was not in the “right state of mind” to plead guilty because he had been

“jumped” by other inmates the day before the hearing.
             The judge found Pate not credible. She said he had “a pattern of not

doing what he [was] supposed to do,” as well as “a long history of non-compliance,”

and that he had taken responsibility for “absolutely nothing.” The judge then stated

that after considering the factors sets forth in R.C. 2929.11 and 2929.12, she was

sentencing him to 18 months’ incarceration.

             The record clearly supports the maximum 18-month sentence. Pate’s

lengthy criminal history and outstanding arrest warrants were alone sufficient to

justify the maximum sentence.        In addition, Pate accepted no responsibility

whatsoever for any of his actions.

             It is apparent, despite Pate’s argument otherwise, that the maximum

sentence was necessary to protect the public from future crime, punish him, and

promote his rehabilitation. It is also apparent from the record, despite Pate’s

argument otherwise, that the trial judge considered the factors set forth in R.C.

2929.12 when she determined Pate’s sentence, and that these factors supported the

maximum sentence.      See R.C. 2929.12(D)(2); (D)(3), and (D)(5) regarding a

defendant’s criminal history, lack of remorse, and failure to respond to sanctions

previously imposed for criminal convictions. And although Pate asserts that the

judge gave no explanation for imposing the maximum sentence, he points us to

nothing that imposes such a requirement.

             Finally, the record refutes Pate’s assertion that the judge sentenced

him to the maximum sentence solely because she “did not care for his attitude.”

Although Pate’s attitude was clearly a factor in his sentence, it was not the only
factor. Pate’s attitude, coupled with his lengthy criminal record and his refusal to

take any responsibility for his actions, justified the imposition of a lengthy prison

sentence.

              Pate having failed to clearly and convincingly demonstrate that the

record does not support his 18-month sentence or that the sentence is contrary to

law, the assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR

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