[Cite as State v. Powers, 2019-Ohio-3321.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

STATE OF OHIO, 

 CASE NO. 5-19-01 

 PLAINTIFF-APPELLEE, 

 v. 

MARK A. POWERS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hancock County Common Pleas Court 

Trial Court No. 2017 CR 00394 

Judgment Affirmed 

Date of Decision: August 19, 2019 

 

APPEARANCES: 

W. Alex Smith for Appellant 

Steven M. Powell for Appellee 

 
Case No. 5-19-01 

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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Mark Powers (“Powers”) brings this appeal from 

the judgment of the Court of Common Pleas of Hancock County sentencing him to 

40 months in prison on two counts of aggravated trafficking in drugs. On appeal 

Powers claims that the prosecutor engaged in misconduct by making inflammatory 

statements at sentencing. For the reasons set forth below, the judgment is affirmed. 

Procedural History 

{¶2} On December 12, 2017, the Hancock County Grand Jury indicted 

Powers on two counts of Aggravated Trafficking in Drugs, one a felony of the third 

degree and one a felony of the fourth degree. Doc. 1. On October 19, 2018, Powers 

changed his plea from not guilty to guilty. Doc. 77. A hearing was held that same 

day and the trial court accepted the plea of guilty and set the matter for a sentencing 

hearing after the presentence investigation report (“PSI”) was completed. Doc. 83. 

{¶3} A sentencing hearing was held on December 17, 2018. Doc. 94. The 

trial court specifically noted that Powers was serving post-release control (“PRC”) 

at the time of the new offenses. Id. After reviewing the PSI, listening to the 

arguments of the State and Powers, and personally addressing Powers, the trial court 

ordered Powers to serve an aggregate prison term of 52 months – 24 months for 

Count One, 16 months for Count Two, and one year for violation of PRC. Powers 

filed his notice of appeal from this judgment on January 4, 2019. Doc. 99. On 

appeal, he raises the following assignment of error 
Case No. 5-19-01 

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The prosecutor engaged in prosecutorial misconduct. 

Prosecutorial Misconduct

{¶4} The sole assignment of error in this case is that the prosecutor allegedly 

engaged in misconduct at the sentencing hearing by making inflammatory 

statements. “[T]he standard for prosecutorial misconduct is whether the comments 

and/or questions were improper, and, if so, whether they prejudiced appellant's 

substantial rights.” State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739 

N.E.2d 749. Prosecutorial misconduct is only reversible error if it can be said that 

the misconduct deprived the appellant of a fair trial when the entire record is 

considered. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990). “[T]he 

touchstone of due process analysis in cases of alleged prosecutorial misconduct is 

the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 

U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Any effect of an improper 

argument made by the State at sentencing can by cured by the trial court’s 

independent assessment of the sentencing factors. State v. Lundgren, 73 Ohio St.3d 

474, 489, 1995-Ohio-227, 653 N.E.2d 304. 

{¶5} In this case, Powers argues that the allegedly inflammatory statements 

made by the prosecutor may have caused the trial court to impose a more severe 

sentence than otherwise would have been ordered. At the sentencing hearing the 

State requested the maximum sentence be imposed on each of the counts and that 

Powers be ordered to serve one year for the PRC violation, all consecutive for an 
Case No. 5-19-01 

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aggregate prison term of 66 months. Tr. 5. The prosecutor, in supporting his 

argument made the following statements. 

Now, what I want to do is address the issues with regard to – to 

the sentence, and that is that the Court’s had the opportunity to 

hear some of the evidence and some of the testimony of officers in 

this case, in suppression hearings, and I – I don’t think anybody 

can deny the fact that the Defendant here is somebody who has 

been a bane in the side of law enforcement, has been known to 

them for some time. He’s able, in the eyes of law enforcement, 

able to evade prosecution on many of the cases; however, he does 

have a history of -- of drug use, drug trafficking, and the Court 

has been able to pick up on that in the [PSI]. Almost all of his 

prior history relates directly to drug trafficking and drug use. 

There are some Municipal Court proceedings that dealt with 

thing like fleeing and eluding and other substance abuse, but with 

respect to his prior history, it’s well known that he has – has had 

issues here in this community. 

* * * 

I believe that – I just want to make a – a professional statement. 

This is not one that in the type of hearing we’re in today, I just 

want to say that referring back to earlier comments about being 

a – a bane in the side of law enforcement with respect to these 

hard drugs, that I just – it had been noted, professional statement, 

that the drop-off, there was a huge drop-off in the number of 

overdose deaths after Mr. Powers was incarcerated in this case. 

And as a result, that’s why we are taking the position here that 

this is serious, that it is – he is a threat to the community. I think 

that based on what I have seen and heard, that he’ll – [defense 

counsel] will be requesting community control sanctions, that he’s 

in Tree Line recovery, or something like that. I think that’s awful 

late in the ballgame here. For years, he had that opportunity. 

He’s chosen not to do it, but to continue selling and dealing the – 

the kind of drugs that are killing people here in the community. 

And so based upon that, I’m going to ask the Court to impose a 

maximum sentence on each, to run consecutive, and consecutive 
Case No. 5-19-01 

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to that, the PRC violation, or having committed a new violation 

under PRC. 

Tr. 5, 8-9. Counsel for Powers objected to the reference by the Prosecutor to the 

offenses not before the court. Tr. 10. There is no question that the prosecutor 

alleged that the incarceration of Powers reduced the number of overdoses in 

Hancock County, inferring that Powers was responsible for several deaths. These 

statements were not based upon any evidence in the record, but were just a statement 

by the prosecutor. However, there is also no evidence that it affected the decision 

of the trial court. Powers admits in his brief that the sentences imposed were within 

the statutory ranges and that the sentences imposed were not the maximum sentence. 

Appellant’s Brief at 5. Powers only alleges that the alleged misconduct may have 

affected the sentence, not that it did. Id. 

{¶6} A review of the record does not support Power’s contention that the 

sentence was affected. The record shows that the trial court reviewed the PSI. The 

trial court also clearly considered the statutory sentencing factors and addressed 

them on the record. Tr. 35-37. The trial court then addressed what considerations 

he was making in regards to the length of the sentence. 

But the balance of what do I do is the more difficult part. I would 

agree, [defense counsel], with your statement that based on – I 

understand what the concerns are from the State of Ohio. I 

understand what their belief is that your client has done, or not 

done, as the case may be. I’ve got the charges in front of me that 

I have. I have the information related to me that does have [sic]. 

I would agree that I think the State’s request to max Mr. Powers 

on both 36 and the 18 months, I don’t think, based on the 
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information contained in the PSI, having considered all of the 

relevant factors, I don’t think that’s appropriate. Okay? I 

understand the request, but I don’t think that’s appropriate 

under the sentencing guidelines. 

 Tr. 37-38. The trial court specifically indicated that it was only considering the 

charges before it and indicated that it did not concur with the recommendations of 

the State. This independent assessment of the evidence and the sentencing factors 

rebuts Powers’ speculation regarding the effect of the prosecutor’s statements upon 

the sentence imposed. As there is no showing of prejudice resulting from the 

statements, the assignment of error is overruled. 

{¶7} Having found no prejudicial error in the particulars assigned and 

argued, the judgment of the Court of Common Pleas of Hancock County is affirmed. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/hls