[Cite as State v. Tubbs , 2020-Ohio-730.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,
Plaintiff-Appellee,

v. JERMAINE TUBBS,
Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 18 MA 0094

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 17CR439

BEFORE: Gene Donofrio, Cher y l L. Waite, Carol Ann Robb, Jud g es.

JUDGMENT: Affirmed.

Atty. Paul Gains , Prosecuting Attorney and Atty. Ralph Rivera, Assistant Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6 th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and
Atty. John Juhasz , 7081 West Boulevard, Suite 4, Youngstown, Ohio 44512, for Defendant-Appellant.– 2 –

Case No. 18 MA 0094 Dated: Februar y

24, 2020
DONOFRIO, J.
{¶1} Defendant-appellant, Jermaine Tubbs, appeals from a Mahoning C ounty Common Pleas Court judgment convicting him of murder with a fir earm specification and having weapons under disability and sentencing him to 21 years to life in prison, following a jury trial on the murder charge and a bench trial on the havi ng weapons under disability charge. {¶2} Around midnight on April 10, 2017, Shawnee Jones texted her mo ther, Sophia Brooks, telling her of a fight between her and her boyfr iend, appellant. At the time, Sophia was in the car with her estranged husband Michael Brooks, Michael’s adult son Mikhail Brooks, and Shawnee’s young son. After Sophia rece ived the text, Michael drove them to Shawnee’s apartment in Youngstown. {¶3} When they arriv ed at Shawnee’s apartment, Michael retrieved hi s cane from the car and walked up to the front door. Shawnee and her young daughter came out of the apartment to talk with Michael. Next, appellant exi ted the apartment. Michael and appellant got into a verbal argument. The argument turned physical when appellant pushed Michael in an attempt to get him to move away from the d oor. Michael then began hitting appellant on the legs and ankles with his cane. Appell ant pulled a gun from his
waistband and shot Michael twice in the head. Michael died fro m the gunshot wounds. {¶4} A Mahoning County Grand Jury indicted appellant on one count o f murder in violation of R.C. 2903.02(A)(D) with a firearm specification and one count of having weapons under disability, a third-degree felony in violation of R.C. 2923.13(A)(2)(B). {¶5} Appellant elected to have the murder count tried to a jury and the having weapons under disability count tri ed to the court. The case pr oceeded to a jury trial on the murder count. Appellant testified that he shot Michael in self-defense. The jury found appellant guilty of murder and of the firearm specification. A t the bench trial, the court found appellant guilty of having weapons under disability {¶6} The trial court subsequently sentenced appellant to 15 years t o life on the murder count and three mandatory years on the firearm specifica tion to be served prior– 3 –

Case No. 18 MA 0094 to and consecutive to the murder sentence. The court also sent enced appellant to three years on the having weapons under disability count to be served consecutive to his other sentences for a total sentence of 21 years to life. {¶7} Appellant filed a timely notice of appeal on September 5, 2018 . He now raises three assignments of error. {¶8} We will address appellant’s third assignment of error out of o rder for ease of discussion. Appellant’s third assignment of error states:

APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND THEREFORE IS AN AFFRONT TO
DUE PROCESS.

{¶9} Appellant asserts that his conviction was against the manifest weight of
the evidence. He claims the evidence demonstrated that Michael was the aggressor, that Michael would not be deterred, and that Michael was looking to harm him. Additionally, he points out that Sophia told Detective Rodway that she did no t see the shooting. Yet she described the shooting in detail at trial. {¶10} In determining whether a verdict is against the manifest weigh t of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences and determine whether, in resolving confl icts in the evidence, the jury clearly lost its way and created such a manifest miscarria ge of justice that the
conviction must be reversed and a new trial ordered. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “Weight of the evidence conce rns ‘the inclination of
the greater amount of credible evidence , offered in a trial, to support one side of the issue
rather than the other.’” Id . (Emphasis sic.) In making its determination, a reviewing co urt is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. Id. at 390. {¶11} Yet granting a new trial is only appropriate in extraordinary cases where the evidence weighs heavily against the conviction. State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determina tions of witness credibility, conflicting testimony , and evidence weight are pri marily for the trier of the facts who sits in the best position to judge the weight of the eviden ce and the witnesses'– 4 –

Case No. 18 MA 0094 credibility by observing their gestures, voice inflections, and demeanor. State v. Rouse
, 7th Dist. Belmont No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill , 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exis t two fairly reasonable views of the evidence or two conflicting versions of events, ne ither of which is unbelievable, it is not our province to choose which one we bel ieve.” State v. Dyke , 7th Dist. Mahoning No. 99-CA-149, 2002-Ohio-1152. {¶12} In order to reverse a jury verdict as against the manifest weig ht of the evidence, all three judges must concur. Thompkins , 78 Ohio St.3d at 389. {¶13} We must examine the evidence presented at trial in order to det ermine if the jury’s verdict was against the manifest weight of the evide nce. {¶14} Sophia testified that on April 9, 2017, she, Michael, Shawnee, and Shawnee’s children were at her house eating and drinking. (Tr. 341-342). Shawnee left Sophia’s house between 11:15 and 11:30 p.m. (Tr. 343). Michae l and Sophia then left to pick up Mikhail and his girlfriend. (Tr. 344). They droppe d Mikhail’s girlfriend off around midnight. (Tr. 344). While they were driving, S ophia received a text from Shawnee. (Tr. 345-346). The text prompted her to call 911. (Tr. 346). Soph ia stated this was “not the first time we had to call the police with these two [appellant and Shawnee].” (Tr. 345). They then drove to Shawnee’s apartment to see what was happenin g. (Tr. 347). {¶15} Sophia stated that when they arrived, she remained in the car and Michael walked up to Shawnee’s door with his cane. (Tr. 356). She saw Shawnee and her daughter come out. (Tr. 356). Then she saw appellant come out . (Tr. 356). Sophia watched appellant and Michael talking and it appeared to be a h eated conversation. (Tr. 357). She then saw appellant do something to Michael. (Tr. 35 8). Next, Michael hit appellant’s ankles with his cane. (Tr. 358-359). Sophia state d that appellant then reached into his waistband and shot Michael twice. (Tr. 359-36 0). Appellant then ran off. (Tr. 361). {¶16} Sophia also testified as to Michael’s health. She stated that over the years he had suffered a brain aneurysm, a massive stroke, and a heart attack. (Tr. 338). Consequently, Sophia stated, Michael was not an “able-bodied” m an. (Tr. 339). He was weak on his left side and used a cane to walk when they went ou t. (Tr. 339).– 5 –

Case No. 18 MA 0094 {¶17} Shawnee testified that after she left Sophia’s house on the ni ght in question, she picked up appellant and they went to her apartmen t. (Tr. 386-387). She stated that she and appellant got into an argument because she would not let him take her car. (Tr. 390-391). Shawnee then went into the bathroom w ith her daughter and locked the door. (Tr. 391). From the bathroom, she contacted Sophia and asked her to come over. (Tr. 391). Soon thereafter, Shawnee heard a car ho rn beep so she and her daughter went outside. (Tr. 392-393). {¶18} Once outside, Shawnee tried to stop Michael from approaching h er apartment because she did not want him to get into a fight with appellant. (Tr. 393). She stated that Michael pushed her out of his way and continued up to her apartment. (Tr. 393). Shawnee stated that appellant came outside and he and Mi chael argued. (Tr. 396). Appellant tried to go back inside, but Michael was holding the door. (Tr. 396). Shawnee heard appellant tell Mikhail to get Michael “out of his face” b efore he killed him. (Tr. 396). Next, she saw appellant push Michael’s head and then saw Michae l hit appellant on the leg with his cane. (Tr. 397-399). Shawnee then saw appellant reach for the gun in his waistband. (Tr. 400). She saw appellant hold the gun above hi s head and shoot Michael twice. (Tr. 400). Shawnee testified that appellant was never on the ground during the altercation and that he was standing when he shot Michael. (Tr . 401-402). Shawnee testified that appellant later told her he shot Michael in self -defense. (Tr. 407). {¶19} Mikhail testified that after they arrived at Shawnee’s apartmen t, Michael and appellant were arguing outside. (Tr. 444). When appellant tri ed to go back into the apartment, Michael blocked his way. (Tr. 444-445). Appellant shoved Michael. (Tr. 447). Mikhail stated that Michael and appellant then started physical ly fighting. (Tr. 447). He saw Michael hitting appellant with his cane and appellant hitti ng Michael. (Tr. 448). Mikhail heard appellant tell him to get Michael “out of my face before I shoot him.” (Tr. 471). Then he saw appellant shoot Michael. (Tr. 448). {¶20} Youngstown Police Officer Mark Crissman photographed appellant later during the day on April 10, 2017. He testified that he did not observe any injuries to appellant’s face. (Tr. 545). Officer Crissman stated that app ellant had a number of small
cuts and abrasions on both his right and left shins. (Tr. 545- 546).– 6 –

Case No. 18 MA 0094 {¶21} Dr. Thomas Gilson is the medical examiner who performed the aut opsy in this case. Dr. Gilson testified that one gunshot was to the si de of Michael’s head and the other was to his nose. (Tr. 615, 623). Neither was to the top of his head. (Tr. 634). Dr. Gilson also testified that, at the time of his death, Michael h ad a blood alcohol
concentration of .171 and also had an antidepressant in his sys tem. (Tr. 635). {¶22} Youngstown Detective-Sergeant Ronald Rodway testified that app ellant turned himself in approximately nine hours after the shooting. (Tr. 650). DetectiveSergeant Rodway also testified that when he interviewed Sophia she indicated that she “heard” two gunshots and then saw Michael fall to the ground, n ot that she “saw” the shooting. (Tr. 663). He also stated that when he interviewed Shawnee she described Michael as being “drunk and belligerent” that night. (Tr. 667)

. {¶23} Finally, appellant testified in his defense. He stated that o n the night in question, he and Shawnee got into an argument about her car. ( Tr. 694-695). She locked herself in the bathroom and he went downstairs. (Tr. 695). Sh ortly thereafter, Shawnee came down and went outside. (Tr. 695). He got up to see what was going on and found Michael, drunk, standing on the porch by the front door. (Tr. 695-697). Shawnee tried to push Michael away. (Tr. 697). {¶24} Appellant stated that he tried to go back in the apartment but Michael pushed him. (Tr. 698). Appellant pushed him back. (Tr. 698). Michael then hit appellant with his cane. (Tr. 698). Appellant testified that he fell to the ground and Michael continued beating him with his cane. (Tr. 698, 701). Appellan t stated that he “balled up” on the ground while Michael was beating him. (Tr. 701). Appel lant stated that he “feared for his life” and “had to defend himself.” (Tr. 704). He stat ed he could not get up and shot twice from the ground. (Tr. 704). Appellant claimed he only “ glanced” at where he was shooting. (Tr. 706). He stated he then stood up and was shock ed so he ran. (Tr. 706). Appellant testified he never intended to kill Michael. (Tr. 70 8). His intent was to defend himself. (Tr. 709). {¶25} On cross examination, appellant admitted that he knew Michael h ad some health problems and used a cane. (Tr. 712-713). {¶26} The jury convicted appellant of murder in violation of R.C. 29 03.02(A), which provides that no person shall purposely cause the death o f another. The evidence– 7 –

Case No. 18 MA 0094 here clearly proved that appellant caused Michael’s death. The only questions were whether he acted “purposely” and whether he acted in self-defen se. {¶27} A defendant acts purposely when it is his specific intention t o cause a certain result. R.C. 2901.22(A). In this case, the jury did n ot lose its way in finding that appellant acted purposely. {¶28} Mikhail testified that appellant told him to get Michael “out o f my face before I shoot him.” (Tr. 471). Then he saw appellant shoot Michael. (Tr. 448). And Shawnee testified that she too heard appellant tell Mikhail to get Mich ael “out of his face” before he killed him. (Tr. 396). These statements indicated that appell ant’s specific intention was to shoot Michael. Moreover, appellant deliberately removed a g un from his waistband and fired two shots while he was involved in a fight with Micha el. Appellant’s actions were those of a man acting to purposely shoot someone. {¶29} Appellant claimed he acted in self-defense. The defense of se lf-defense through the use of deadly force has three elements: (1) the de fendant was not at fault in creating the violent situation; (2) the defendant had a bona fi de belief that he was in imminent danger of death or great bodily harm and that the only means of escape was the use of such force; and (3) the defendant did not violate an y duty to retreat or avoid the danger. State v. Thomas , 77 Ohio St.3d 323, 326, 1997-Ohio-269, 673 N.E.2d 1339 (1997). In order to support a claim of self-defense, the defen dant must demonstrate that
he acted out of fear or he felt that his life was threatened. State v. Herron , 2d Dist. Montgomery No. 28146, 2019-Ohio-3292, ¶ 42. {¶30} The evidence indicated that both appellant and Michael were at fault for creating the situation. The evidence demonstrated that both me n were arguing, both men pushed one another, Michael hit appellant with his cane, and ap pellant hit Michael. But the evidence does not support the idea that appellant had a bon a fide belief that his only means to escape death or great bodily harm was the use of deadl y force. {¶31} Appellant testified that he “balled up” on the ground while Mi chael was beating him with his cane. (Tr. 701). Appellant further testi fied that he “feared for his life” and “had to defend himself.” (Tr. 704). He claimed that he ne ver intended to kill Michael but only meant to defend himself. (Tr. 708-709).– 8 –

Case No. 18 MA 0094 {¶32} But there was a significant amount of evidence to contradict a ppellant’s testimony. Firstly, appellant knew that Michael was in poor he alth and required a cane to walk. Second, the other eyewitnesses testified that appellant was standing when he shot Michael as opposed to be being “balled up” on the ground. And third, police observed appellant just nine hours after the shooting. The only injurie s observed on appellant were some minor scrapes and abrasions on his shins. Thus, the evide nce did not demonstrate that appellant feared for his life such that his only means of escape was the use of deadly
force. {¶33} Moreover, there is a duty to retreat before using deadly force unless the person using such force is in his own home. State v. Morris , 7th Dist. Monroe No. 03 MO 12, 2014-Ohio-6810, ¶ 12; City of Parma v. Treanor , 8th Dist. Cuyahoga No. 106275, 2018-Ohio-3166, ¶ 29. Here, the evidence demonstrated that app ellant could have retreated from Michael instead of shooting him. Michael was di sabled and required a cane to walk. Appellant could have easily retreated from the a ffray but instead chose to fire his gun at Michael. Thus, appellant could have retreated to avoid being struck by
Michael’s cane. {¶34} Appellant also argues that Sophia told Detective Rodway that s he did not see the shooting; however, she described it in detail at trial. This matter would go to Sophia’s credibility. And as stated above, witness credibility is a matter left to the jury. {¶35} Based on the above evidence, we cannot conclude that the jury clearly lost its way in finding appellant guilty of murder. {¶36} Accordingly, appellant’s third assignment of error is without merit and is
overruled. {¶37} Appellant’s first assignment of error states:

DEFICIENCIES IN THE TRIAL COURT’S INSTRUCTIONS TO THE
JURY DEPRIVED APPELLANT OF DUE PROCESS AND FREEDOMS
GUARANTEED UNDER THE OHIO CONSTITUTION AND CONSTITUTE
PLAIN ERROR.

{¶38} Appellant asserts that in this case, voluntary manslaughter wa s an inferiordegree offense of murder, as opposed to a lesser included offen se. Voluntary– 9 –

Case No. 18 MA 0094 manslaughter is an inferior degree of murder because its elemen ts are identical to those of murder except for the additional mitigating element of serio us provocation. In this case, appellant argues, the trial court erred by instructing the jury that it should consider the greater charge first and only consider the inferior-degree char ge if it found appellant not guilty of the greater offense. {¶39} The trial court instructed the jury as follows:

If all of you are unable to agree on a verdict of either guil ty or not guilty of the offense of murder, then you will continue your de liberations to decide whether the state has proved beyond a reasonable doubt a ll the essential elements of the inferior degree offense of voluntary manslaughter.

* * *

The defendant claims that at the time of the offense, the defe ndant acted knowingly while under the influence of sudden passion or a sudden fit of rage, either of which was brought on by serious provocat ion occasioned by Michael Brooks that was reasonably sufficient to incite the defendant into using deadly force, this is known as voluntary m anslaughter.
Before you can find the defendant guilty of voluntary manslaug hter, you must find that the state has proved beyond a reasonable dou bt that on or about April 20, 2017, in Mahoning County, Ohio, the defendan t, while under the influence of sudden passion or in a sudden fit of rag e, either of which is brought on by serious provocation, occasioned by the v ictim that it is reasonably sufficient to incite the person into using deadly force, knowingly causing the death of Michael Brooks.

(Tr. 819-820). {¶40} Appellant contends these instructions were confusing to the ju rors. He notes the court told the jurors that if they were unable to agr ee on a verdict for murder, they should then continue deliberations to decide whether the s tate proved all of the elements of voluntary manslaught er. But then, the court instru cted the jurors:– 10 –

Case No. 18 MA 0094 If you find that the state proved beyond a reasonable doubt all of the essential elements of murder, you must separately decide whethe r the defendant proved by a greater weight of the evidence that he kn owingly acted while under the influence of sudden passion or a sudden f it of rage, either of which was brought on by serious provocation occasione d by Michael Brooks that was reasonably sufficient to incite the def endant into using deadly force. However, if you find that the state failed to prove beyond a reasonable doubt all the essential elements of murder, then y our verdict must be not guilty of that offens e and you will not make that d etermination.

(Tr. 823). {¶41} Thus, appellant argues the court first told the jurors only to consider voluntary manslaughter if they could not agree on a verdict for murder. Then it told them to consider voluntary manslaughter only if they all agreed that the state met all of the elements of murder. The two instructions, one correct and one incorrect, were
inconsistent. {¶42} Moreover, appellant points out, the jurors were confused as ev idenced by their question to the court. The jury asked the court, “If we can’t come to a verdict of 12 for murder, do we then debate voluntary manslaughter charge or do we debate until we are in agreement of one or the other? Please clarify.” (Tr. 8 35). {¶43} Appellant did not object to the jury instructions at trial. T he failure to object to jury instructions waives all but plain error. State v. Palmer , 7th Dist. Jefferson No. 04- JE-41, 2006-Ohio-749, ¶ 58. Plain error is one in which but fo r the error, the outcome of
the trial would have been different. State v. Long , 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). {¶44} A defendant is entitled to have the trial court give complete and accurate jury instructions on all the issues raised by the evidence. State v. Sneed , 63 Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992). In examining the jury instructio ns we must review the court's charge as a whole, not in isolation, in determining whe ther the jury was properly
instructed. State v. Burchfield , 66 Ohio St.3d 261, 262, 611 N.E.2d 819 (1993). {¶45} In this case, while the court did give a conflicting instructi on regarding when the jury was to consider a charge of voluntary manslaughter, no plain error resulted– 11 –

Case No. 18 MA 0094 because the jury could not have found appellant guilty of volun tary manslaughter under
the facts of this case. {¶46} The Eighth District has specifically held that instructions on both voluntary manslaughter and self-defense are erroneous because the two leg al theories are incompatible. State v. Jefferson , 8th Dist. Cuyahoga No. 97331, 2012-Ohio-2387, 971 N.E.2d 469, ¶ 26. In support, the court noted that “[v]oluntar y manslaughter requires that the defendant be under the influence of sudden passion or a fit of rage, while self-defense requires the defendant to be in fear for his own personal safet y.” Id

. {¶47} This court has refused to accept a steadfast rule to that effe ct but has stated that while “an instruction on voluntary manslaughter is general ly incompatible with and contradictory to self-defense, there is no blanket rule holding the two theories inconsistent or contradictory.” State v. Stanley , 7th Dist. Mahoning No. 14 MA 0106, 2016-Ohio-7284, ¶ 22. In Stanley , we went on to examine whether the defendant presented suffici ent evidence at trial to support the elements of voluntary manslaug hter. {¶48} In analyzing the issue, we examined State v. Platt , 9th Dist. Wayne No. 18835, 1998 WL 887220 (Dec. 16, 1998). Id . at ¶ 29. We noted that in Platt , the victim allegedly threatened the defendant with a baseball bat. Id . At trial, the defendant testified
that he shot the victim because he feared for his life. Id . The trial court refused to give an instruction on voluntary manslaughter based on the defendant ’s testimony that he shot the victim out of fear rather than anger or passion. Id . We pointed out that the Ninth District affirmed the trial court's ruling and held that the te stimony produced at trial was only relevant to self-defense. Id

. {¶49} We then went on to find:
This Court has previously acknowledged that “[f]ear is insuffic ient to demonstrate the emotional states of sudden passion or a fit of rage, and
these latter emotional states are essential elements of the def inition of voluntary manslaughter.” State v. Williams , 7th Dist. No. 11 JE 7, 2012- Ohio-5256, ¶ 24.

Appellant testified that he shot the victim because he feared t hat the
victim would shoot and kill him. Consistent with the above-cite d caselaw– 12 –

Case No. 18 MA 0094 and based on Appellant's testimony, he failed to establish that the evidence showed he acted pursuant to an emotional state of sudden passio n or fit of rage. Instead, his testimony reflects self-defense.

Id . at ¶ 31-32. {¶50} In this case too, appellant’s testimony reflects self-defense as opposed to an emotional state of a sudden fit of rage. {¶51} In describing the events leading up to the shooting, appellant testified that he fell to the ground as Michael beat him with his cane. (Tr. 698, 701). Appellant stated that he “balled up” on the ground while Michael was beating him . (Tr. 701). Appellant told the jury that he “feared for his life” and “had to defend himself.” (Tr. 704). He stated he could not get up and shot twice from the ground. (Tr. 704). Noticeably absent from appellant’s testimony is any indication that he acted in a sudd en fit of rage. {¶52} Thus, even if the trial court gave an erroneous instruction re garding voluntary manslaughter, no plain error exists because appellant ’s testimony described acting in self-defense as opposed to acting in a sudden fit of rage or passion. {¶53} Appellant additionally, argues that trial court’s instruction on self-defense was deficient. He claims the instruction should have, but fail ed to, instruct the jurors that evidence of self-defense, even if not established by a preponde rance of the evidence, may be sufficient to create reasonable doubt about the defendan t’s guilt. {¶54} While the trial court did not specifically state that evidence of self-defense may be sufficient to create reasonable doubt regarding defendan t’s guilt, the court specifically instructed the jurors several times to consider al l of the evidence in reaching
their verdict:
Reasonable doubt is present when, after you have carefully cons idered all
of the evidence , you cannot say that you are firmly convinced of the truth of the charge.

* * *– 13 –

Case No. 18 MA 0094 Evidence is all of the testimony received from the witnesses, the exhibits admitted during trial, facts stipulated to or agreed to by coun sel, and any facts which the court requires you to accept as true.

* * *

It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to yo ur findings, and to render your verdict accordingly. * * * Consider all the evidence [.]”

(Emphasis added; Tr. 803-804; 830). {¶55} Given the court’s repeated instructions to consider all of the evidence, the jury would have considered appellant’s testimony regarding his claim of self-defense when determining his guilt. The trial court did not commit pla in error by failing to separately instruct the jury to consider appellant’s evidence o f self-defense. {¶56} Accordingly, appellant’s first assignment of error is without merit and is
overruled. {¶57} Appellant’s second assignment of error states:

A MAXIMUM SENTENCE FOR HAVING WEAPONS UNDER A DISABILITY, IMPOSED CONSECUTIVELY TO A LIFE SENTENCE,
DENIES DUE PROCESS AND THE RIGHT TO REMAIN FREE FROM
CRUEL AND UNUSUAL PUNISHMENTS.

{¶58} Here appellant contends the trial court erred by sentencing hi m to the maximum sentence for having weapons under disability and by ord ering him to serve that sentence consecutive to his life sentence. Appellant acknowled ges that the trial court made the statutorily-required findings for sentencing him to co nsecutive sentences. But he urges this court to require more from sentencing courts when it comes to maximum and consecutive sentences. He asks us to require sentencing co urts to give reasons supporting those findings. He then asserts that we are to revi ew his sentence for abuse
of discretion. {¶59} First, it must be noted that we no longer apply an abuse of di scretion standard when reviewing felony sentences. When reviewing a fel ony sentence, an– 14 –

Case No. 18 MA 0094 appellate court must uphold the sentence unless the evidence cl early and convincingly does not support the trial court's findings under the applicabl e sentencing statutes or the sentence is otherwise contrary to law. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231 ¶ 1. Thus, “appellate courts may not appl y the abuse-of-discretion standard in sentencing-term challenges.” Id. at ¶ 10. {¶60} In this case, the trial court sentenced appellant to 15 years to life for murder, three years for the firearm specification, and three years for having weapons under disability. {¶61} The 15-years-to-life sentence on the murder conviction was man datory. R.C. 2929.02(B)(1). Likewise, the three-year sentence on the f irearm specification was mandatory. R.C. 2929.14(B)(1)(a)(ii). The possible sentences for the having weapons under disability were nine, twelve, eighteen, twenty-four, thir ty, or thirty-six months. R.C. 2929.14(A)(3)(b). The trial court selected the maximum 36-mont h term. Thus, each of appellant’s sentences was consistent with the applicable senten cing statute. {¶62} In sentencing a felony offender, the court must consider the o verriding principles and purposes set out in R.C. 2929.11, which are to p rotect the public from future crime by the offender and others and to punish the offen der. The trial court shall
also consider various seriousness and recidivism factors as set out in R.C. 2929.12(B)(C)(D)(E). The trial court indicated both at the hea ring and again in its judgment entry that it considered both the principles and purpo ses of sentencing and the seriousness and recidivism factors. (Sentencing Tr. 13-14). T he court did not elaborate on its findings regarding these factors, but it was not require d to do so. “[N]either R.C. 2929.11 nor R.C. 2929.12 requires the sentencing court to make specific findings regarding the purposes and principles of sentencing, or serious ness and recidivism factors at the sentencing hearing or in the sentencing judgment entry.” State v. Taylor
, 7th Dist. Mahoning No. 15 MA 0078, 2016-Ohio-1065, ¶ 14, citing State v. Henry , 7th Dist. Belmont No. 14 BE 40, 2015-Ohio-4145, ¶ 22, State v. Wilson , 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State v. Arnett , 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). {¶63} The trial court sentenced appellant to a maximum sentence for having weapons under disability. But although the General Assembly ha s reenacted the judicial– 15 –

Case No. 18 MA 0094 fact-finding requirement for consecutive sentences, it has not revived the requirement for
maximum sentences. State v. Riley , 7th Dist. Mahoning No. 13 MA 180, 2015-Ohio-94, ¶ 34. Therefore, the trial court was not required to make any s pecial findings before sentencing appellant to a maximum sentence. {¶64} Appellant acknowledges that the trial court made the findings required to sentence him to consecutive sentences. (Sentencing Tr. 15-16). But he now asks us to require sentencing courts to give reasons supporting those find ings. This is not something this court can do. {¶65} R.C. 2929.14(C)(4) requires a trial court to make specific find ings when imposing consecutive sentences:
(4) If multiple prison terms are imposed on an offender for con victions of multiple offenses, the court may require the offender to ser ve the prison terms consecutively if the court finds that the consecutive ser vice is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the 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 par t of one or more courses of conduct, and the harm caused by two or m ore 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 tha t
consecutive sentences are necessa ry to protect the public from future crime by the offender.– 16 –

Case No. 18 MA 0094 Nothing in the statute requires the trial court to give reasons for its findings.

{¶66} In discussing the legislature’s requirements in the consecutiv e-sentencingfindings statute, the Ohio Supreme Court has stated:

Notably, however, rather than also reviving the language of for mer R.C. 2929.19(B)(2), which we severed in Foster , the General Assembly repealed that language and eliminated the substantive requirement for a court to give reasons for imposing consecutive sentences. We recognize that s ome statutes require a trial court to give reasons in support of it s findings, e.g., R.C. 2929.03(F) and 2929.19(D), but no statute directs a senten cing court to give or state reasons supporting imposition of consecutive s entences. Thus, a trial court is not required by Crim.R. 32(A)(4) to give reasons supporting its decision to impose consecutive sentences.

State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27. {¶67} Neither the statute itself nor the Ohio Supreme Court require a sentencing court to give reasons in suppor t of its consecutive-sentence fi ndings. Thus, this court is not in a position to require the trial court to give such reaso ns. {¶68} In sum, there is no indication that the evidence clearly and c onvincingly does not support the trial court's findings under the applicabl e sentencing statutes. Moreover, the sentence is not contrary to law. Therefore, we must uphold appellant’s
sentence. {¶69} Accordingly, appellant’s second assignment of error is without merit and
is overruled. {¶70} For the reasons stated above, the trial court’s judgment is he reby affirmed.

Waite, P. J., concurs.
Robb, J., concurs.[Cite as State v. Tubbs , 2020-Ohio-730.]

For the reasons stated in the Opinion rendered herein, the assi gnments of error are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.

A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.