[Cite as State v. Jones, 2019-Ohio-4938.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SHELBY COUNTY 

 

STATE OF OHIO, 

 CASE NO. 17-19-08 

 PLAINTIFF-APPELLEE, 

 v. 

JAVONTE E. JONES, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Shelby County Common Pleas Court 

Trial Court No. 19CR000052 

Judgment Affirmed 

Date of Decision: December 2, 2019 

 

APPEARANCES: 

Jim R. Gudgel for Appellant 

Timothy S. Sell for Appellee 

 
Case No. 17-19-08 

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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Javonte E. Jones (“Jones”) appeals the judgment 

of the Shelby County Court of Common Pleas, alleging (1) that the trial court abused 

its discretion in sentencing him; (2) that his trial counsel was ineffective; and (3) 

that the trial court’s order as to restitution was not based upon competent, credible 

evidence. For the reasons set forth below, the judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶2} On February 18, 2019, Jones and Amonte Clayton (“Clayton”) were

inside a Wal-Mart. Doc. 10. Clayton used a crowbar to force open a metal cage 

that stored a number of iPads. Doc. 10. In this process, the metal cage was 

damaged. Jones and Clayton removed nine iPads, left the store, and got in a vehicle. 

At roughly 5:30 A.M., Jones drove out of the Wal-Mart parking lot. Doc. 10. 

However, Officer Anderson Bradley (“Officer Bradley”) noticed that Jones did not 

have his headlights activated. Doc. 10. At this point, Officer Bradley activated his 

lights to initiate a traffic stop, but Jones did not stop his vehicle and drove onto the 

interstate. Doc. 10. Officer Bradley continued to pursue Jones at speeds that ranged 

from eighty to ninety-five miles per hour. Doc. 10. The police deployed spike strips 

in Jones’s path of travel. Doc. 10. Jones’s vehicle came to a stop only after the 

spike strips disabled his vehicle. Doc. 10. In the vehicle, the police found nine 

iPads, two shirts, and a tote bag that had been stolen from Wal-Mart. Doc. 10. 
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{¶3} On February 21, 2019, Jones was indicted on one count of failure to 

comply with the order or signal of an officer in violation of R.C. 2921.331(B); one 

count of theft in violation of R.C. 2913.02(A)(1); and one count of vandalism in 

violation of R.C. 2909.05(B)(1)(b). Doc. 1. On March 26, 2019, Jones filed a 

petition to enter a plea of guilty. Doc. 44. This petition was based upon an 

underlying plea agreement. Doc. 44. Pursuant to this agreement, Jones pled guilty 

to failure to comply with the order or signal of an officer, and the State dismissed 

the charges of theft and vandalism. Doc. 44, 54. On May 13, 2019, the trial court 

entered its judgment entry of sentencing. Doc. 54. The trial court sentenced Jones 

to twenty-four (24) months in prison. Doc. 54. The trial court also ordered Jones 

to pay Wal-Mart restitution in the amount of $7,152.22. Doc. 54. 

{¶4} The appellant filed his notice of appeal on May 31, 2019. Doc. 65. On 

appeal, Jones raises the following assignments of error: 

First Assignment of Error 

The Court abused its discretion by imposing a prison sentence of 

24 months. 

Second Assignment of Error 

Defense Counsel was ineffective for not requesting a separate 

restitution hearing. 

Third Assignment of Error 

The trial court committed reversible error under Section 2929.18 

when it sentenced the Defendant-Appellant to pay restitution in
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the amount of $7,152.55 without a reasonable degree of certainty 

based on competent and credible evidence. 

First Assignment of Error 

{¶5} Jones argues that the trial court did not properly balance the seriousness 

and recidivism factors in imposing his sentence. 

Legal Standard 

{¶6} Trial courts are to sentence convicted felons in accordance with the 

overriding purposes of felony sentencing, which 

are to protect the public from future crime by the offender and

others and to punish the offender using the minimum sanctions 

that the court determines accomplish those purposes without 

imposing an unnecessary burden on state or local government 

resources. 

R.C. 2929.11. “To effectuate compliance with these overriding purposes, the Ohio 

Revised Code requires the trial court to consider a number of factors listed in R.C. 

2929.12.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The 

R.C. 2929.12 factors direct the trial court to evaluate the seriousness of the offense 

and the likelihood of recidivism. R.C. 2929.12. 

Although the trial court must consider the purposes and 

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

sentencing factors listed in R.C. 2929.12, the sentencing court is 

not required to ‘state on the record that it considered the 

statutory criteria or discuss[ed] them.’ State v. Polick, 101 Ohio 

App.3d 428, 431 [655 N.E.2d 820] (4th Dist. 1995). A trial court’s 

statement that it considered the required statutory factors, 

without more, is sufficient to fulfill its obligations under the 

sentencing statutes. 
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State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31. 

{¶7} Appellate courts defer to the broad discretion of the trial court in matters 

of sentencing.1

 State v. Witt, 3d Dist. Auglaize No. 2-17-09, 2017-Ohio-7441, ¶ 12. 

If the defendant establishes by clear and convincing evidence that his or her sentence 

is “(1) contrary to law and/or (2) unsupported by the record,” an appellate court has 

the authority, pursuant to R.C. 2953.08(G)(2), “to increase, reduce, or otherwise 

modify a sentence * * *.” State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971, 

62 N.E.3d 178, ¶ 1. 

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 belief or conviction as to the facts 

sought to be established. 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, 

quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three 

of the syllabus. 

Legal Analysis 

{¶8} The trial court, at the sentencing hearing and in its judgment entry, 

stated that it considered the purposes and principles of sentencing in R.C. 2929.11 

 

1

 We note that the trial court is given discretion in applying the statutory factors in the process of determining 

an appropriate sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of 

discretion is clearly and convincingly contrary to law. Thus, we examine the record to determine whether the 

trial court clearly and convincingly failed to act in accordance with the laws governing the imposition of 

sentences. 
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and the seriousness and recidivism factors listed in R.C. 2929.12. Doc. 54. Tr. 10. 

See Magette, supra, at ¶ 31. Further, at the sentencing hearing, the trial court noted 

that Jones had a past criminal record; that Jones has “had difficulty accepting 

responsibility for * * * [his] conduct in this”; and that Jones had two other offenses 

that were dismissed pursuant to the plea agreement. Tr. 10-11. The trial court also 

mentioned that Jones fled the scene of the crime at speeds that neared one hundred 

miles per hour and had to be stopped using spike strips. Tr. 11. 

{¶9} Further, when Jones pled guilty, he was informed that he could be 

sentenced up to thirty-six months in prison. Doc. 44. Thus, not only is this sentence 

within the range permitted by statute, but the imposed sentence falls short of what 

Jones was aware that he could receive by pleading guilty. After reviewing the 

evidence in the record, we conclude that some competent, credible evidence 

supports Jones’s sentence. Jones has not demonstrated, by clear and convincing 

evidence, that his sentence is contrary to law. Thus, Jones’s first assignment of error 

is overruled. 

Second Assignment of Error 

{¶10} Jones argues that he was denied his right to the effective assistance of 

counsel because his attorney did not request a separate restitution hearing. 

Legal Standard 

{¶11} “Under Ohio law, ‘a properly licensed attorney is presumed to carry 

out his duties in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-
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37, 2018-Ohio-2438, ¶ 26, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993 

WL 270995 (July 22, 1993). In order to prove an ineffective assistance of counsel 

claim, the appellant must carry the burden of establishing (1) that his or her 

counsel’s performance was deficient and (2) that this deficient performance 

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984). 

{¶12} The first prong “requires showing that counsel made errors so serious 

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 

N.E.2d 77, ¶ 61. “Tactical or strategic trial decisions, even if unsuccessful, do not 

generally constitute ineffective assistance.” State v. Pellegrini, 3d Dist. Allen No. 

1-12-30, 2013-Ohio-141, ¶ 40. In order to establish prejudice, “the defendant must 

show a reasonable probability that, but for counsel’s errors, the result of the 

proceeding would have been different.” State v. Davis, 3d Dist. Seneca No. 13-16-

30, 2017-Ohio-2916, ¶ 36, quoting State v. Bibbs, 3d Dist. Hancock No. 5-16-11, 

2016-Ohio-8396, ¶ 13. 

{¶13} “If the appellant does not establish one of these two prongs, the 

appellate court does not need to consider the facts of the case under the other prong 

of the test.” State v. Smalley, 3d Dist. Henry No. 7-18-30, 2019-Ohio-1572, ¶ 5, 

citing State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). “Appellate 

courts are to examine the record to determine whether the defendant had a fair 
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proceeding under the circumstances and whether substantial justice was done.” 

State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, citing State v. 

Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus. 

Legal Analysis 

{¶14} In this case, Jones expressly agreed to pay restitution as part of a plea 

agreement in which two charges against him were dismissed. Doc. 44. At the 

beginning of Jones’s sentencing hearing, the State clearly stated that the amount of 

restitution requested by Wal-Mart was $7,152.55. Tr. 7. The State obtained this 

figure from the presentence investigation. Tr. 7. This apparently included the costs 

of the electronics and the damage to the interior of the cage that contained the iPads. 

Tr. 9. At this point, Jones’s counsel, in reference to the amount of restitution that 

Wal-Mart requested, said: “I believe that they [Wal-Mart] would have at least 

received back the lost or the—the electronics equipment. So I’m not sure why they 

couldn’t have sold that. It wasn’t damaged as far as I know.” Tr. 9. 

{¶15} In response to this statement, the trial court stated that it was obligated 

to order restitution in this case but asked Jones if he wanted to present any 

information to contest the amount of restitution that had been presented by WalMart. Tr. 8. After a brief, off-the-record colloquy between Jones and his trial 

counsel, the Defense indicated that it would not contest the amount of the damages 

that Wal-Mart reported. Tr. 9. The trial court stated that it was going to impose the 
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amount of restitution as a “joint and several obligation * * * of the co-defendants in 

the case.” Tr. 9. 

{¶16} The trial court then gave Jones another opportunity to contest the 

amount of restitution at a separate hearing. Tr. 10. Again, defense counsel engaged 

in another off-the-record colloquy with Jones. Tr. 11. Jones, who was aware that 

the amount of restitution that Wal-Mart requested was $7,152.55, indicated to his 

trial counsel that he “believe[d] that he[ was] capable of * * * paying restitution and 

[was] willing to pay restitution in this matter.” Tr. 10. 

{¶17} Thus, the record indicates that defense counsel effectuated the wishes 

of Jones in declining the opportunity to have a restitution hearing. Tr. 10. Jones 

has not carried the burden of establishing that his trial counsel was ineffective. See 

State v. Banks, 2d Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶ 11. After 

reviewing the record, we do not find any indication that defense counsel’s 

performance in this matter fell below the objective standard of reasonableness that 

is held to attorneys. 

{¶18} We also note that Jones has not met the burden of proving that he was 

prejudiced. Jones asserts that the failure of his attorney to request a restitution 

hearing operated to his prejudice because he was ordered to pay $7,251.55 in 

restitution. However, the fact that the defense counsel was effectuating Jones’s 

wishes also defeats his argument as to prejudice. In this case, Jones was aware of 

the amount of restitution that Wal-Mart was requesting. Jones also knew, from his 
Case No. 17-19-08 

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defense counsel’s statements at the sentencing hearing, that there were some 

arguments against the amount of the restitution. The trial court gave Jones two 

opportunities to contest the amount of restitution. 

{¶19} However, Jones twice chose not to contest the amount of restitution 

and instead indicated to his counsel that he was willing and capable of paying for 

this amount. Tr. 10. Thus, Jones has not, on appeal, alleged prejudice that resulted 

from his counsel’s performance. Rather, he has alleged prejudice that resulted from 

his own choices. For these reasons, Jones’s second assignment of error is overruled. 

Third Assignment of Error 

{¶20} Jones argues that the trial court’s order for him to pay $7,152.22 in 

restitution is not based upon competent, credible evidence. 

Legal Standard 

{¶21} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part 

of a sentence in order to compensate the victim for economic loss. State v. Lalain, 

136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20. R.C. 2929.18(A) 

reads, in its relevant part, as follows: 

If the court imposes restitution, at sentencing, the court shall 

determine the amount of restitution to be made by the offender.

If the court imposes restitution, the court may base the amount of 

restitution it orders on an amount recommended by the victim, 

the offender, a presentence investigation report, estimates or 

receipts indicating the cost of repairing or replacing property, 

and other information, provided that the amount the court orders 

as restitution shall not exceed the amount of the economic loss
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suffered by the victim as a direct and proximate result of the 

commission of the offense. 

R.C. 2929.18(A)(1). “There must be competent and credible evidence in the record 

from which the court may ascertain the amount of restitution to a reasonable degree 

of certainty.” State v. Estes, 3d Dist. Seneca No. 13-11-14, 2011-Ohio-5740, ¶ 20. 

{¶22} R.C. 2929.18(A)(1) also provides that “[i]f the court decides to impose 

restitution, the court shall hold a hearing on restitution if the offender, victim, or 

survivor disputes the amount.” R.C. 2929.18(A)(1). However, “[a] defendant who 

does not dispute an amount of restitution, request a hearing, or otherwise object 

waives all but plain error in regards to the order of restitution.” State v. Snowden, 

2019-Ohio-3006, --- N.E.3d ---, ¶ 88 (2d Dist.). See State v. Dunham, 5th Dist. 

Richland No. 13CA26, 2014-Ohio-1042, ¶ 84; State v. Downie, 183 Ohio App.3d 

665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 32 (7th Dist.); State v. Ford, 9th Dist. 

Summit No. 26073, 2012-Ohio-1327, ¶ 6. 

{¶23} Under Crim.R. 52(A), “[p]lain errors or defects affecting substantial 

rights may be noticed although they were not brought to the attention of the court.” 

Crim.R. 52(B). 

“In order to find plain error under Crim.R. 52(B), there must be 

an error, the error must be an ‘obvious’ defect in the trial 

proceedings, and the error must have affected ‘substantial 

rights.’” State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-

Ohio-6524, ¶ 12, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 

N.E.2d 1240 (2002). ‘The standard for plain error is whether, but 

for the error, the outcome of the proceeding clearly would have

been otherwise.’ State v. Hornbeck, 155 Ohio App.3d 571, 2003-
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Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist.), citing State v. Long, 53 

Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error is

taken “only to ‘prevent a manifest miscarriage of justice.’” State 

v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 23, 

quoting Long, supra, at paragraph three of the syllabus. 

State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 17. Under 

Crim.R. 52(B), “the defendant bears the burden of demonstrating that a plain error 

affected his substantial rights.” (Emphasis sic.) State v. Perry, 101 Ohio St.3d 118, 

2004-Ohio-297, 802 N.E.2d 643, ¶ 14. 

Legal Analysis 

{¶24} Jones, on appeal, seeks to contest the amount of restitution that the 

trial court imposed. R.C. 2929.18(A)(1) provides an avenue for a defendant to 

contest the amount of restitution. R.C. 2929.18(A)(1). However, Jones chose not 

to contest the amount of restitution and did not raise these arguments before the trial 

court. Tr. 9-10. In fact, Jones indicated to the trial court that he was “capable” and 

“willing” to pay the amount of restitution submitted by Wal-Mart. Tr. 10. Since 

Jones did not contest the amount of restitution before the trial court, Jones has 

waived all but plain error. 

{¶25} On appeal, Jones has not carried the burden of demonstrating that the 

trial court committed plain error in imposing $7,152.22 in restitution. In this case, 

the trial court based the amount of restitution on the economic losses reported by 

the victim, Wal-Mart. Doc. 54. Tr. 9. The trial court had the authority, under R.C. 

2929.18(A)(1), to base the amount of the restitution “on an amount recommended 
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by the victim, the offender, a presentence investigation report, estimates or receipts 

* * *.” (Emphasis added.) R.C. 2929.18(A)(1). 

{¶26} The evidence in the record indicates that the trial court acted in 

accordance with the dictates of R.C. 2929.18(A)(1). After reviewing the evidence 

in the record, we find no indication of an obvious defect in the process of imposing 

restitution. For this reason, Jones’s third assignment of error is overruled. 

Conclusion 

{¶27} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Shelby County Court of Common Pleas is 

affirmed. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/hls