[Cite as State v. Smith, 2014-Ohio-5553.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101387

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

MARIO D. SMITH

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-582143-A 

BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: December 18, 2014 
ATTORNEY FOR APPELLANT

Michael Webster 

800 Standard Building 

1370 Ontario Street 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Edward R. Fadel 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN T. GALLAGHER, J.: 

{¶1} After entering guilty pleas to one count of heroin possession and one count of 

possession of criminal tools, defendant-appellant Mario D. Smith appeals from the sentences 

imposed. 

{¶2} Smith presents one assignment of error. He claims that the trial court considered an 

offense for which he was not convicted in determining that he deserved a total prison term of 

twelve months for committing fifth-degree felony offenses. After a careful review of the record, 

this court disagrees. Consequently, Smith’s sentences are affirmed. 

{¶3} Smith was indicted in this case on three counts, charged with trafficking in and 

possession of heroin in an amount less than one gram, and possession of criminal tools. Each of 

the counts contained forfeiture specifications. 

{¶4} The parties eventually notified the trial court that a plea agreement had been 

reached, whereby, in exchange for the state’s dismissal of the trafficking charge, Smith would 

plead guilty to the other two counts. The trial court conducted a careful and thorough Crim.R. 

11(C) hearing before accepting Smith’s pleas. The court then dismissed the trafficking count 

and ordered the preparation of a presentence report. 

{¶5} When the trial court called Smith’s case for sentencing, the court stated that Smith 

entered guilty pleas “in Count 2 to drug possession,” and in “Count 3, possession of criminal 

tools,” both fifth-degree felonies. The court further stated that it had reviewed the presentence 

report. 

{¶6} The trial court then asked Smith’s attorney if he, too, had reviewed the report. 

Defense counsel answered affirmatively and informed the court that he had “no substitutions or 
deletions to add” to the report. Defense counsel argued that Smith had not been “using” drugs 

since his arrest, and that Smith had “enrolled in Recovery Resources in intensive outpatient 

treatment trying to get help for his problem”; therefore, “community control sanctions would be 

appropriate” for his client. 

{¶7} In response, the prosecutor pointed out that Smith had been on postrelease control at 

the time of his arrest on the charges in this case. The prosecutor also noted that, according to the 

presentence report, Smith had been at the location where he was arrested “to sell heroin.” 

{¶8} The trial court proceeded to read aloud that portion of the presentence report for 

purposes of the record. Defense counsel requested that the trial court note that drug trafficking 

“was not something that [Smith] was convicted of.” 

{¶9} The trial court at that point conversed with Smith at length about the circumstances 

surrounding his presence at the scene of his arrest. Smith’s account of his activity was less than 

credible. The trial court also asked if Smith could provide the drug assessment done by 

Recovery Resources, but Smith could not. 

{¶10} In pronouncing sentence, the trial court stated that it had considered the 

information provided, the principles and purposes of felony sentencing, and the recidivism and 

seriousness factors. The court commented that Smith did not “sound like” an addict, that this 

case had “all the markings * * * that [Smith was] there to sell heroin,” and that the court “just 

[didn’t] believe” Smith’s account. The court sentenced Smith to concurrent prison terms of 

twelve months on each count. 

{¶11} Smith presents the following assignment of error for this court’s review. 

I. The trial court erred by imposing sentence based on its belief that 

Appellant was guilty of a charge for which he was not convicted. 
{¶12} Smith argues that his sentences are infirm because the trial court’s comments 

demonstrate that the court based the sentences solely on the charge that had been dismissed. 

This court disagrees with Smith’s characterization of the trial court’s comments. State v. Peal, 

8th Dist. Cuyahoga No. 97644, 2012-Ohio-6007, ¶ 15. 

{¶13} It is generally held that a trial court may not impose a sentence based upon a 

“‘crime neither charged nor proven.’” State v. Dari, 8th Dist. Cuyahoga No. 99367, 

2013-Ohio-4189, ¶ 15, quoting State v. Henley, 8th Dist. Cuyahoga No. 74305, 1998 Ohio App. 

LEXIS 5080 (Oct. 29, 1998). In addition, it has been held that a trial court may not impose a 

greater sentence upon a defendant based upon the court’s belief that the defendant committed a 

more serious crime than the charges for which he was convicted. Peal, at ¶ 11, citing State v. 

Smith, 8th Dist. Cuyahoga No. 76919, 2000 Ohio App. LEXIS 3512, (Aug. 3, 2000); see also 

Cleveland Hts. v. Seastead, 8th Dist. Cuyahoga No. 68875, 1995 Ohio App. LEXIS 4513 (Oct. 

12, 1995). 

{¶14} The trial court is, however, required to consider the purposes and principles of 

felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12 

when fashioning a sentence. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, 

¶ 7. In so doing, the court may review “any factors that are relevant.” State v. Lewis, 8th Dist. 

Cuyahoga No. 99395, 2013-Ohio-4593, ¶ 21. R.C. 2929.19 further requires the trial court to 

consider relevant information presented by the prosecutor, defense counsel, and the defendant, 

along with the record and the presentence report. As long as the trial court considered the 

applicable statutes, factors, and information, the court has full discretion to impose any term of 

imprisonment within the statutory range. Hodges. 
{¶15} When the defendant’s convictions result from a plea agreement, therefore, that 

agreement does not preclude the trial court’s consideration of the underlying facts of the case in 

determining the appropriate sentence to impose. State v. Frankos, 8th Dist. Cuyahoga No. 

78072, 2001 Ohio App. LEXIS 3712 (Aug. 23, 2001); State v. Clayton, 8th Dist. Cuyahoga No. 

99700, 2014-Ohio-112, ¶ 18. Thus, the trial court is permitted to consider the original charge 

when sentencing. Peal at ¶ 18. 

“[T]he seriousness of the offense will generally be based upon the judge’s 

perception of the real facts of what occurred, and the plea bargained offense will 

simply set a ceiling on what the judge can impose.” 

Frankos, quoting Griffin & Katz, Ohio Felony Sentencing Law, at 450-451 (2000 Ed.). 

(Emphasis added; footnotes and citations omitted.) 

{¶16} Additionally, the trial court may consider the defendant’s criminal history; this 

includes prior “arrests.” State v. Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, ¶ 

32. In State v. Hinton, 8th Dist. Cuyahoga No. 84582, 2005-Ohio-3427, ¶ 12, this court 

observed that 

the function of the sentencing court is to acquire a thorough grasp of the 

character and history of the defendant before it. The court’s consideration ought

to encompass negative as well as favorable data. 

(Emphasis added.) 

{¶17} At Smith’s sentencing hearing, the record reflects the trial court relied on required 

statutory considerations, relevant information, and the circumstances underlying Smith’s case. 

The trial court’s statements do not reflect that the dismissed charge was “the sole basis for the 

sentence.” State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 19. Rather, the 
statements indicate only that the court believed Smith was lying to it. Reeves, at ¶ 35. 

Moreover, concurrent terms of twelve months were within the statutory parameters. Id.

{¶18} Under the circumstances presented in this case, therefore, this court cannot find 

that Smith’s sentences are either unsupported by the record or contrary to law. State v. Dari, 8th 

Dist. Cuyahoga No. 99367, 2013-Ohio-4189, ¶ 19; R.C. 2953.08(G)(2). Smith’s assignment of 

error, accordingly, is overruled. 

{¶19} Smith’s sentences are 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 convictions having been affirmed, 

any bail pending appeal 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. 

__________________________________________ 

EILEEN T. GALLAGHER, JUDGE 

MARY EILEEN KILBANE, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR