[Cite as State v. Smith, 2019-Ohio-5199.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 18AP-525 

v. : (C.P.C. No. 17CR-6231)

Rafael A. Smith, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 17, 2019 

 

On brief: Ron O'Brien, Prosecuting Attorney, and 

Barbara A. Farnbacher, for appellee. Argued: Barbara A. 

Farnbacher. 

On brief: Dennis C. Belli, for appellant. Argued: Dennis C. 

Belli.

 

APPEAL from the Franklin County Court of Common Pleas 

BRUNNER, J. 

{¶ 1} Defendant-appellant, Rafael A. Smith, appeals a judgment of the Franklin 

County Court of Common Pleas entered on May 30, 2018, sentencing him to serve 16 years 

for two consecutively sentenced counts of felonious assault perpetrated against his 

girlfriend. Because we find that none of Smith's four assignments of error are well-taken, 

we overrule each of them and affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On November 16, 2017, a Franklin County Grand Jury indicted Smith for 

attempted murder, three counts of felonious assault, kidnapping, domestic violence, and 

violation of a protective order. (Nov. 16, 2017 Indictment.) Most of the charges stemmed 

from a single evening in which Smith administered a savage beating to his girlfriend, D.M. 

Id.; see also State's Exs. A-C. Smith initially pled not guilty, but on April 16, 2018, he 
No. 18AP-525 2 

changed his plea to guilty of two counts of felonious assault in exchange for dismissal of the 

remaining counts. (Nov. 20, 2017 Plea Form; Apr. 16, 2018 Plea Form.) 

{¶ 3} Following Smith's guilty plea, the trial court ordered a presentence 

investigation. (Apr. 16, 2018 Plea Tr. at 13, filed July 2, 2018.) In addition, the prosecution 

filed a sentencing memorandum requesting maximum consecutive sentences and 

submitted exhibits directly to the trial court's chambers. (May 18, 2018 Sentencing Memo. 

at 2.) The exhibits include a police report of two interviews with Smith's girlfriend, D.M., 

in which she explained that on the night in question, Smith beat her with his fists, slammed 

her face into bedposts, and eventually strangled her into unconsciousness. (State's Ex. A at 

2-3.) She said she felt "he was killing me, I thought he did kill me." Id. at 4. The exhibits 

also include medical records and pictures of D.M.'s face taken at the hospital in the 

immediate aftermath of the beating, together with her Georgia photo ID. (State's Exs. BC.) The list of D.M.'s injuries alone is four pages long and, due to the swelling, discoloration, 

and other facial damage, the pictures of her in the hospital are unrecognizable as the same 

woman pictured in the photo ID. (State's Exs. B-C.) 

{¶ 4} Six days after the prosecution filed its sentencing memorandum and exhibits, 

the trial court held a sentencing hearing. During the sentencing hearing, the defense 

characterized Smith's crimes as an "anger management issue that his family has recognized 

and has counseled him to seek help for." (May 24, 2018 Sentencing Tr. at 3, filed July 9, 

2018.) Smith's attorney noted that the victim had requested that Smith not be prosecuted 

and then he called the victim to give a statement at the sentencing hearing. (Sentencing Tr. 

at 3.) 

{¶ 5} D.M. challenged a number of factual assertions in the prosecution's 

sentencing memorandum, portraying the event as a mutually intoxicated altercation that 

got out of hand and downplaying the nature of her injuries. Id. at 4-6. She explained that 

she and Smith love each other very much and minimized the abuse, saying that they have 

"gone through things together. All couples do." Id. at 6. She closed by begging that Smith 

be released without further punishment so that they could "work this out as a family." Id.

at 6-7. 

{¶ 6} Smith's father spoke next. He opined that when his son and his girlfriend go 

"out to party, they go through these problems. I don't know if it's the alcohol or, like, certain 
No. 18AP-525 3 

medications or what; but they both attack each other. It happens numerous times." Id. at 

7-8. He opined that as long as his son is on his proper medication, though, "he'll be all 

right." Id. at 8. Following these remarks, Smith's attorney clarified that Smith was on 

anxiety and depression medications, Buspar and Lexapro. Id.

{¶ 7} The State then introduced the three exhibits it had previously submitted to 

chambers in support of its sentencing memorandum. Id. at 9. The prosecutor pointed out 

that in the recitation of events D.M. "initially" gave to police, she articulated two specific 

types of assaults: blunt force trauma (from fists and slamming her head into bed posts) and 

strangulation to the point of unconsciousness. Id. In that initial recitation, D.M. reported 

that the assaults occurred over a significant period of time and resulted in several distinct 

injuries: a broken hand, numerous facial fractures, broken orbital bones, and loss of 

consciousness. Id. The prosecution accordingly argued that the two felonious assault 

counts should not be merged into a single offense for conviction and sentencing purposes. 

Id. The prosecution also noted Smith's extensive history of allegations of domestic violence 

against D.M. and other women (most but not all of which were dismissed). Id. at 9-10. The 

prosecution called attention to a statement allegedly made by Smith during his arrest, 

"[t]hat bitch won't file charges on me. She knows better[;] just like last time." Id. at 10. 

The State further mentioned that Smith had accumulated several charges for violating 

protection orders in the aftermath of the incident because he would not stop contacting 

D.M. Id. The State closed by requesting a significant prison sentence. Id. at 11. 

{¶ 8} Smith's attorney responded that this crime was a single assaultive incident in 

a bedroom and that this was, as a consequence, really a single felonious assault. Id. at 12. 

The defense therefore argued that the two counts should merge into one. Id. The defense 

also suggested that the statements Smith made to the police may have been "fueled by 

alcohol." Id.

{¶ 9} The court then inquired whether Smith, himself, "want[ed] to say anything 

before [the court] impose[d] sentence?" Id. Smith said he would and began by suggesting 

that there was a great deal of confusion about what happened that evening and that really 

the fault lay in both D.M. and himself. Id. at 12-13. He suggested that she "got into 

something with somebody else and me" (meaning another altercation with a female 

assailant) on the night in question. Id. at 13-14. The trial court suggested, in light of his 
No. 18AP-525 4 

statement, that Smith clarify the extent of his participation in the beating by circling the 

injuries he believed he inflicted on the photographs of D.M.'s injuries. Id. at 14. Smith 

complied and circled virtually all the injuries to D.M.'s face and neck. Id. at 14-15; see also

State's Ex. C. Smith further said that this was not a one-way street and that he too had 

suffered injuries in the form of scratches on his lips. Id. at 15-16. The trial court asked if 

D.M. had been charged for the injuries she inflicted upon him and he indicated she had not. 

Id. The trial court then inquired if there was "anything else you want to say to me?" Id. at 

16. Smith responded, "No, ma'am." Id.

{¶ 10} The trial court then pronounced sentence and, in so doing, expressed 

personal outrage: 

THE COURT: It is rare that I come into a sentencing 

circumstance where I am literally shaking because I am so 

outraged by what I have heard and by what I have seen. I am 

rarely speechless when it comes to what I must do as a judge 

here in this courthouse, but I am literally furious and 

speechless. 

Let me say to you first, [D.M.], I don't normally address 

victims. You are a beautiful woman, and I am concerned by the 

fact that you are investing so much time and energy in 

managing Mr. Smith's choices versus finding and releasing the 

powerful and beautiful woman that you are. 

The fact that you have done so much research to assist 

Mr. Smith when he has conceded what he has done to you hurts 

my heart, and I know that you don't want to hear anything that 

I have to say because love is a very powerful thing. And, 

candidly, the psychology of abuse is an even more powerful 

thing. But I am hopeful that one day you will come to the 

realization that you do not have to subject yourself to this kind 

of behavior because this is not what love is. This is not what 

companionship is. This is not what care is. This is not what 

concern is. This is nothing to which you should have to be 

subjected. 

As to you, Mr. Smith, you, sir, are one of the most narcissistic 

defendants that I have ever had the great displeasure of having 

in my courtroom. Your arrogance is astounding. Don't shake 

your head no at me like I don't know exactly what I'm talking 

about. 
No. 18AP-525 5 

I have read your presentence report, and I absolutely believe 

the version of events that was first provided to police officers. 

They have absolutely no incentive to suggest that you would say 

-- and I hate this word -- That bitch won't press charges just like 

the last time. She knows better just like last time. 

I have no reason to believe that anybody would manufacture 

these kinds of facts, that you would drag this woman up the 

stairs, that you would pick her up by her throat and throw her 

on a bed and assault her to the point that she reported to police 

originally that you believed that you had killed her. 

You can shake your head no. I don't believe you. 

[SMITH]: Ms. Cocroft, [D.M.] is right here. You can ask her. 

THE COURT: You don't need to point out who is here because 

I've been doing this work long enough to know that the 

psychology of abuse suggests that an abused person will always 

defend the abuser. And there is a pattern of behavior out of 

Georgia which suggests that there have been incidents that 

have not resulted in convictions where there have been 

violations of protection orders; there has been physical abuse. 

And I am certain that [D.M.] recanted those allegations in an 

effort to protect you and really to protect herself. 

So you don't need to point out to me that [D.M.] is here and 

that she can refute that which has been established by your own 

circling of the damages that you've done to her. You've already 

admitted to me what you did to her, so hearing from her is not 

going to change the narrative to which you've already agreed to 

today, sir. 

[SMITH]: Ms. Cocroft. 

THE COURT: What? 

[SMITH]: She and I were involved in this together. This was 

not just something that happened. 

THE COURT: I'm not interested in hearing about your 

argument of mutual combat when this woman was beaten into 

unconsciousness, when her eye was protruding from the 

socket. 

[SMITH]: Ms. Cocroft. 
No. 18AP-525 6 

THE COURT: I don't want you to say anything else to me to 

attempt to justify your physical brutality. I don't want to hear 

it. There is no excuse. I will not permit you to continue to violate 

[D.M.]. Even though she doesn't want my protection 

necessarily today, I'm not going to permit you to continue to 

use her as a shield for your willful actions. That day is over. 

You are an abuser. You are a violent man. You have absolutely 

no regard for the women in your life. 

You have a history of violating women because you punched 

the mother of your child. That is what you do, and you were 

convicted, so don't try to tell me it didn't happen. 

And you have a 7-year-old son who is watching you, who is 

learning how to treat people based on how you treat people. 

And do you think I'm anything close to eager to allow you to be 

in his life so that he can watch you continue to brutalize people? 

I have never been so furious. The way that you have 

orchestrated all of this, the strings that you are pulling, the way 

that you are manipulating people and situations to advance 

your own selfish motives is outrageous to me. You are 

completely offensive to me, and I'm just going to get to the 

factors for felony sentencing so that I can move on. 

Id. at 16-20. 

{¶ 11} The court then catalogued and applied the sentencing factors, finding several 

factors marking the crime a more serious version of the offense. Id. at 21-24. The court 

found that the mismatch in strength and inebriation of the victim made the victim 

physically vulnerable, that the victim suffered serious physical and psychological harm, that 

Smith's relationship with D.M. facilitated the offense, that the crime was perpetrated 

against a household member, and that the offense was motivated by prejudice against 

females (as illustrated by Smith's history of abuse against women). Id. The trial court said 

it found no factors indicating the offense was less serious because it entirely disbelieved the 

version of the offense Smith and D.M. presented during the hearing. Id. at 24-25, 27. The 

trial court also found that Smith's conduct, lack of remorse, and criminal history of abusing 

women made it likely he would reoffend. Id. at 27-28. At one point during the court's 

recitation, Smith interrupted to indicate that he had also fought with a man and that he had 

not punched, but only pushed, the mother of his child. Id. at 25-26. The trial court 
No. 18AP-525 7 

discussed the matter with Smith then indicated, "Okay. So I just want you to be quiet for 

now. I do. I want you to be quiet. I do." Id. at 26. 

{¶ 12} The trial court found no reason to depart from the presumption of prison 

time, stating, "I've never had a case where it's been so clear-cut about what it is that I'm 

going to do." Id. at 28-29. It then found that the offenses did not merge based on the fact 

that there were several species of assault perpetrated against D.M., each with a distinct 

animus. Id. at 30. The trial court imposed the maximum of eight years on each of the 

felonious assault counts. Id. at 31. Then the court found: 

[B]ecause the Court believes that no single sentence can satisfy 

that course of conduct, because of the danger that the conduct 

poses to the safety of the community, because of the 

seriousness of the injuries, and in order to ensure the safety of 

the community, those sentences will run consecutive with each 

other for a total of 16 years of incarceration with the 

Department of Rehabilitation and Correction with 198 days of 

jail time credit. The Court does find that as a matter of fact that 

these are the most serious forms of these offenses. 

Id. The trial court issued a judgment entry six days later memorializing the sentence issued 

orally. (May 30, 2018 Jgmt. Entry.) 

{¶ 13} Smith now appeals. 

II. ASSIGNMENTS OF ERROR 

{¶ 14} Smith presents four assignments of error for review: 

[1.] THE TRIAL COURT VIOLATED DEFENDANTAPPELLANT'S RIGHTS UNDER THE DOUBLE JEOPARDY 

CLAUSES OF THE FIFTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION 

AND ARTICLE I, SECTION 10 OF THE OHIO 

CONSTITUTION BY REFUSING TO MERGE HIS TWO 

CONVICTIONS FOR FELONIOUS ASSAULT PURSUANT TO 

THE UNIT OF PROSECUTION RULE, AND/OR R.C 2941.25, 

THE ALLIED OFFENSES STATUTE. 

[2.] DEFENDANT-APPELLANT WAS DEPRIVED OF HIS 

FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS 

AND A FUNDAMENTALLY FAIR SENTENCING 

PROCEEDING DUE TO THE A) THE PROSECUTOR'S 

SUBMISSION OF FALSE INFORMATION SUBMITTED BY 

THE PROSECUTOR, B) THE TRIAL COURT'S 

PREDISPOSITION OF ANGER AND OUTRAGE, AND C) ITS 
No. 18AP-525 8 

REFUSAL TO ALLOW HIM TO ALLOCUTE REGARDING A 

STATUTORY SERIOUSNESS FACTOR. 

[3.] THE IMPOSITION OF CONSECUTIVE PRISON TERMS 

FOR TWO COUNTS OF FELONIOUS ASSAULT WITHOUT A 

PROPORTIONALITY FINDING REQUIRED BY R.C. 

2929.14(C)(4) RESULTED IN PLAIN ERROR. 

[4.] DEFENDANT-APPELLANT WAS DENIED HIS RIGHT 

TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AS 

GUARANTEED BY THE SIXTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION, 

DUE TO THE COMBINED PREJUDICIAL IMPACT OF 

SEVERAL INSTANCES OF DEFICIENT PERFORMANCE 

DURING THE SENTENCING PHASE. 

III. DISCUSSION 

A. First Assignment of Error – Whether the Trial Court Erred by 

Convicting and Sentencing Smith on Two Counts of Felonious Assault 

{¶ 15} The Ohio statute on allied offenses provides as follows: 

(A) Where the same conduct by [the] defendant can be 

construed to constitute two or more allied offenses of similar 

import, the indictment or information may contain counts for 

all such offenses, but the defendant may be convicted of only 

one. 

(B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in 

two or more offenses of the same or similar kind committed 

separately or with a separate animus as to each, the indictment 

or information may contain counts for all such offenses, and 

the defendant may be convicted of all of them. 

R.C. 2941.25. 

{¶ 16} The Supreme Court of Ohio has explained how to apply this statute: 

Under R.C. 2941.25(B), a defendant whose conduct supports 

multiple offenses may be convicted of all the offenses if any one 

of the following is true: (1) the conduct constitutes offenses of 

dissimilar import, (2) the conduct shows that the offenses were 

committed separately, or (3) the conduct shows that the 

offenses were committed with separate animus. 
No. 18AP-525 9 

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus. Whether 

offenses were "committed separately" is self-explanatory, but the Supreme Court has 

defined "dissimilar import" in the following way: 

Two or more offenses of dissimilar import exist within the 

meaning of R.C. 2941.25(B) when the defendant's conduct 

constitutes offenses involving separate victims or if the harm 

that results from each offense is separate and identifiable. 

Ruff at paragraph two of the syllabus. The Court has also defined "animus" as "purpose, 

intent, or motive." Newark v. Vazirani, 48 Ohio St.3d 81, 84 (1990)1, quoting State v. 

Blankenship, 38 Ohio St.3d 116, 119 (1988) (Whiteside, J., concurring); see also Black's 

Law Dictionary 107 (10th Ed.2014) (defining "animus" in relevant part as "[i]ntention"). 

The determination of whether or not offenses are allied offenses of similar import is 

reviewed de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 26-28. 

{¶ 17} In this case, there was a single victim and the course of the assault (a beating 

that took place in a single room albeit over a substantial period of time) was such that 

ordinarily, the offenses would not necessarily be said to have been committed separately. 

We recognize that the Supreme Court has (albeit prior to Ruff) merged multiple felonious 

assault counts for shooting the same victim more than once with the same animus or 

stabbing the same victim more than once with the same animus. State v. Harris, 122 Ohio 

St.3d 373, 2009-Ohio-3323, ¶ 3-4, 18-20, citing State v. Cotton, 120 Ohio St.3d 321, 2008-

Ohio-6249. Post Ruff cases are generally given similar effect. See State v. Welninski, 6th 

Dist. No. WD-16-039, 2018-Ohio-778, ¶ 89-99 (collecting cases). In accordance with this 

precedent, we acknowledge that, for some altercations, it may not be appropriate to impose 

an assault charge for each punch thrown. 

{¶ 18} However, this is not the typical case. Here we find that hitting D.M. savagely 

and strangling her to unconsciousness are two actions that each telegraphed different 

intentions or purposes. The former seems to have been intended to inflict blunt-force 

trauma, perhaps to cause pain and physical damage. The latter seems to have been 

 

1 Note, Vazirani was overruled on other grounds by State v. Rance, 85 Ohio St.3d 632, 637 (1999) which has, 

itself, been overruled by a line of cases culminating in Ruff. See State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314; Williams, 2012-Ohio-5699; Ruff, 2015-Ohio-995. Despite the many revisions of allied offenses 

law, there is no indication that the Supreme Court has altered the definition of "animus." 
No. 18AP-525 10 

purposed to deprive oxygen and, at a minimum, to render unconscious. We recognize that, 

in a broad sense, both acts seem to have been driven by the single vile urge to dominate and 

hurt D.M. Nor are their effects completely distinct—enough blunt-force physical damage 

results in death which stops breathing and enough oxygen deprivation causes tissue 

damage and death. Yet, on the facts of this case, we find the transition from abusive hitting 

to strangling, signals a shift in intention from merely causing pain and venting anger to the 

intention to silence, perhaps forever. On the facts of this case, these are (as the trial court 

found) different animuses. 

{¶ 19} We also find that different harms resulted from these two forms of attack. 

While both caused physical harm in the broad sense, the experience of being struck 

forcefully and repeatedly is quite different from the feeling of having one's airway cutoff. 

Both are uniquely harmful, psychologically and physically, and both in fact caused differing 

serious injuries in this case. The former caused fractures and extreme bruising while the 

latter caused ligature marks, unconsciousness, and what the victim described to the police 

in her second interview as, "he was killing me, I thought he did kill me." (State's Ex. A at 

4.) 

{¶ 20} Although the victim was the same and the occasion was the same, the method 

of attacks (and thus the purposes) and the harms and injuries produced, were different in 

this case. Or, in the language of Ruff, the "conduct shows that the offenses were committed 

with separate animus" and the harm that resulted from each of the two felonious assault 

counts was "separate and identifiable." Ruff at paragraphs two and three of the syllabus. 

Hence, Smith was legally convicted and sentenced on both offenses. Smith's first 

assignment of error is overruled. 

B. Second Assignment of Error – Whether the Defendant was Deprived of 

a Fundamentally Fair Sentencing Hearing 

1. Whether the Prosecution Submitted False Evidence 

{¶ 21} It has long been recognized that the duty of a prosecutor is not to seek victory, 

but to seek justice. As the United States Supreme Court has put it: 

[A prosecutor] is the representative not of an ordinary party to 

a controversy, but of a sovereignty whose obligation to govern 

impartially is as compelling as its obligation to govern at all; 

and whose interest, therefore, in a criminal prosecution is not 

that it shall win a case, but that justice shall be done. As such, 

he is in a peculiar and very definite sense the servant of the law, 
No. 18AP-525 11 

the twofold aim of which is that guilt shall not escape or 

innocence suffer. He may prosecute with earnestness and vigor 

-- indeed, he should do so. But, while he may strike hard blows, 

he is not at liberty to strike foul ones. 

Berger v. United States, 295 U.S. 78, 88 (1935). Making a false factual statement to a judge 

that an attorney knows to be false, would be such a "foul blow." See, e.g., Prof.Cond.R. 

3.3(a). 

{¶ 22} However, we see no evidence in this case that the prosecution has uttered any 

knowing falsity. The police report contained in State's Exhibit A includes two interview 

summaries by D.M. in which she recounts the events of the beating in much the same way 

as the prosecution's memorandum does and in much the same way as the prosecution did 

at the sentencing. Compare State's Ex. A in passim with May 18, 2018 Sentencing Memo. 

at 1-2 and Sentencing Tr. at 9-11. Though Smith faults the prosecution for not 

acknowledging D.M.'s shifting stories and the relatively minor differences between the first 

and second interviews (Smith's Brief at 28), the prosecution did indicate during sentencing 

that its view of the case was based on the narrative D.M. "initially" provided to the police. 

(Sentencing Tr. at 9.) Moreover, the prosecution provided the full report and both 

interview summaries to the trial court. (State's Ex. A.) 

{¶ 23} The exhibits provided do not substantiate (or contradict) the prosecution's 

claim about what the defendant said upon arrest, or, for example, that the victim suffered 

a broken hand. However, at the plea hearing that occurred approximately six weeks before 

sentencing, the prosecutor stated the facts of the case as follows: 

Between Wednesday, November 8 of 2017, and Thursday 

November 9, 2017, the victim identified as [D.M.], was 

assaulted by the defendant. The officer first made contact with 

[D.M.] at Grant Hospital where she was being treated for 

multiple facial fractures, including orbital fractures, nasal bone 

fractures, and fractures to her wrists and hand. Those fractures 

did require surgical intervention. 

Speaking with [D.M.], she related that she had been assaulted 

by the defendant over an extensive period of time, she had been 

strangled multiple times and lost consciousness. Officers did 

respond to the address where the assault occurred and arrested 

the defendant. 
No. 18AP-525 12 

When he was being placed under arrest, he did state to the 

arresting officers, quote, that bitch won't file charges on me, 

she knows better, just like the last time. This did occur here in 

Franklin County, Ohio. 

(Plea Tr. at 11.) The defense indicated it had "[n]o exceptions for the purposes of this plea." 

Id. While that wording leaves open the possibility that the defense could and might dispute 

the facts for other purposes, it falls far short of the sort of protest that the tribunal could 

have expected (in accordance with an attorney's duty of candor) had any of the facts been 

whole-cloth fabrications. Prof.Cond.R. 3.3. 

{¶ 24} At best, Smith's argument that the prosecution presented falsehoods to the 

tribunal seems to be nothing more than the fact that D.M.'s story changed over time as she 

got further away from the savage beating she sustained and the psychology of abuse began 

to take hold. The prosecution, and for that matter, the tribunal, were fully at liberty to 

recognize that D.M.'s changing narrative was based on her real or perceived pressure from 

Smith. They were free to focus on the statement she gave first to the police, when she was 

still injured enough and angry enough to tell the truth about her tormentor. See Sentencing 

Tr. at 18 (trial court remarking, "I have read your presentence report, and I absolutely 

believe the version of events that was first provided to police officers"). 

2. Whether the Trial Court's Emotional Statements in the Case 

Rendered the Sentencing Unfair 

{¶ 25} The prosecution suggests that we have held in some of our prior cases that we 

are without jurisdiction to determine if a common pleas judge has exhibited bias. (State's 

Brief at 24-25.) See, e.g., State v. Hussein, 10th Dist. No. 15AP-1093, 2017-Ohio-5519, ¶ 9; 

State v. Scruggs, 10th Dist. No. 02AP-621, 2003-Ohio-2019, ¶ 15. However, those cases 

derive from R.C. 2701.03 and Beer v. Griffith, 54 Ohio St.2d 440 (1978), which together 

establish that only the Supreme Court of Ohio may pass on the disqualification of any judge 

and that a party "may file an affidavit of disqualification with the clerk of the supreme court" 

if such bias is suspected. R.C. 2701.03(A). As consequence, Beer concluded that a court of 

appeals "was without authority to pass upon disqualification or to void the judgment of the 

trial court upon that basis." (Emphasis added.) Beer at 441-42. However, even though the 

state's high court in Beer found that a judgment could not be considered "void" by a court 

of appeals for the reason of judicial bias, a judgment may yet be considered erroneous. Id.

at 442; see, e.g., State v. Corchado, 7th Dist. No. 16 MA 0155, 2017-Ohio-4390, ¶ 14, citing 
No. 18AP-525 13 

State v. Arnett, 88 Ohio St.3d 208, 218 (2000); State v. Power, 7th Dist. No. 12 CO 14, 

2013-Ohio-4254, ¶ 22 (noting that constitutional violations created by bias (such as Due 

Process violations) are reviewable as errors). 

{¶ 26} This is an important distinction. When overlooked or ignored, a defendant 

may be denied a fair trial or sentencing. Although Ohio allocates the responsibility for 

voiding judgments and dismissing judges from cases to the Supreme Court of Ohio, still, 

"[t]he presence of a biased judge on the bench is, of course, a paradigmatic example of 

structural constitutional error, which if shown requires reversal without resort to harmlesserror analysis." State v. Sanders, 92 Ohio St.3d 245, 278 (2001), citing Arizona v. 

Fulminante, 499 U.S. 279, 309-10 (1991). And the United States Supreme Court has 

recognized a difference between partiality which may be "proper grounds for appeal," and 

bias necessary to support "recusal." Liteky v. United States, 510 U.S. 540, 555 (1994). 

However, even the level of partiality or bias necessary for "proper grounds for appeal" 

rather than for mandatory "recusal," is a very difficult showing for a number of reasons: 

First, judicial rulings alone almost never constitute a valid basis 

for a bias or partiality motion. See United States v. Grinnell 

Corp., 384 U.S. at 583 [(1966)]. In and of themselves (i.e., apart 

from surrounding comments or accompanying opinion), they 

cannot possibly show reliance upon an extrajudicial source; 

and can only in the rarest circumstances evidence the degree of 

favoritism or antagonism required (as discussed below) when 

no extrajudicial source is involved. Almost invariably, they are 

proper grounds for appeal, not for recusal. Second, opinions 

formed by the judge on the basis of facts introduced or events 

occurring in the course of the current proceedings, or of prior 

proceedings, do not constitute a basis for a bias or partiality 

motion unless they display a deep-seated favoritism or 

antagonism that would make fair judgment impossible. Thus, 

judicial remarks during the course of a trial that are critical or 

disapproving of, or even hostile to, counsel, the parties, or their 

cases, ordinarily do not support a bias or partiality challenge. 

They may do so if they reveal an opinion that derives from an 

extrajudicial source; and they will do so if they reveal such a 

high degree of favoritism or antagonism as to make fair 

judgment impossible. An example of the latter (and perhaps of 

the former as well) is the statement that was alleged to have 

been made by the District Judge in Berger v. United States, 255 

U.S. 22, 65 L. Ed. 481, 41 S. Ct. 230 (1921), a World War I 

espionage case against German-American defendants: "One 

must have a very judicial mind, indeed, not [to be] prejudiced 
No. 18AP-525 14 

against the German Americans" because their "hearts are 

reeking with disloyalty." Id., at 28 (internal quotation marks 

omitted). Not establishing bias or partiality, however, are 

expressions of impatience, dissatisfaction, annoyance, and 

even anger, that are within the bounds of what imperfect men 

and women, even after having been confirmed as federal 

judges, sometimes display. 

Liteky at 555-56. 

{¶ 27} In this case, the judge's comments evince outrage at the crimes, the 

manipulative conduct, and the flimsy excuses of the defendant. Some of the trial court 

judge's comments, particularly, "[y]ou are completely offensive to me," and "I have never 

been so furious," may appear to suggest an above-normal level of emotional involvement. 

(Sentencing Tr. at 20.) 

{¶ 28} Yet, we do not find that such remarks indicated a bias based on an 

extrajudicial source. Though the exhibits submitted in support of the sentencing 

memorandum were initially submitted to chambers a few days before the sentencing 

hearing, they were properly introduced in open court during the sentencing hearing. 

(Sentencing Tr. at 9.) Nor do we find that the remarks displayed such a degree of 

antagonism toward the defendant as to make fair judgment impossible. Indeed, after 

expressing her personal outrage at the defendant's genuinely outrageous conduct, the judge 

proceeded to consider and apply each of the sentencing factors with exactitude. 

(Sentencing Tr. at 20-28.) The judge then imposed a sentence that was consistent with the 

sentencing factors and her findings on the topic of consecutive sentences. (Sentencing Tr. 

at 28-31.) 

3. Whether the Trial Court Erred in Curtailing Smith's Mutual Combat 

Argument 

{¶ 29} Crim.R. 32 requires that "[a]t the time of imposing sentence, the court shall 

* * * address the defendant personally and ask if he or she wishes to make a statement in 

his or her own behalf or present any information in mitigation of punishment." Crim.R. 

32(A)(1). "If the court imposes sentence without affording the defendant an opportunity to 

allocute, then resentencing is required unless the error was invited or harmless." State v. 

Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶ 200, citing State v. Osie, 140 Ohio St.3d 131, 

2014-Ohio-2966, ¶ 179; see also State v. Campbell, 90 Ohio St.3d 320 (2000), paragraph 

three of the syllabus. 
No. 18AP-525 15 

{¶ 30} Smith argues that the trial court deprived him of his right to allocute and 

argue the sentencing factors when it cut short his attempts to argue that he and D.M. had 

been engaged in mutual aggression and that this was not a one-sided assault. (Smith's Brief 

at 34-35.) He points to two statements by the trial court: 

I'm not interested in hearing about your argument of mutual 

combat * * *. 

* * * 

I don't want you to say anything else to me to attempt to justify 

your physical brutality. I don't want to hear it. There is no 

excuse. 

(Sentencing Tr. at 19; Smith's Brief at 35.) 

{¶ 31} Though Smith acknowledges that the trial judge allowed him to make a 

statement in mitigation (Smith's Brief at 34), he fails to acknowledge that his statement 

included material on exactly the same mutual combat argument: 

[SMITH]: We were into an altercation, Your Honor. This was 

not just a one-way street. This was both ways. 

THE COURT: Were you injured? 

[SMITH]: Yes, ma'am. I did have injuries. 

THE COURT: What were your injuries? 

[SMITH]: I had injuries to my face. I had scratches on my lips. 

THE COURT: Was she charged? 

[SMITH]: No, ma'am. I never brought those as charges up. 

THE COURT: Oh, okay. Why didn't you? 

[SMITH]: I just didn't. 

THE COURT: So they're not before me. If she's not been 

charged or convicted -- 

[SMITH]: Okay. 

THE COURT: -- I'm not interested in hearing what may have 

happened to you. 
No. 18AP-525 16 

[SMITH]: Okay. Ms. Cocroft, those charges -- the injuries are 

in the discovery package. 

THE COURT: So you plead guilty to two counts of felonious 

assault. You have now conceded to this Court by your circling 

of these photos that you did cause serious physical harm to 

[D.M.], so I'm trying to figure out at this point what you're 

debating with me. 

[SMITH]: I'm -- I'm saying -- I'm not debating with you, Ms. 

Cocroft. I'm just saying that all of those injuries weren't my 

fault, and we got into it together. That's what I'm saying. 

THE COURT: Is there anything else that you want to say to me. 

[SMITH]: No, ma'am. 

(Sentencing Tr. at 15-16.) In short, the trial court allowed Smith to make a statement and 

engaged with him on his mutual combat argument. It was only later, when Smith 

interrupted the trial court's pronouncement of sentence in order to repeat the argument 

that the court refused to hear him further. The trial court did not prevent Smith from 

allocuting or refuse to hear his argument of mutual combat. It just refused to hear it 

repetitively. We find no error in that. 

{¶ 32} Having considered and rejected all three branches of Smith's second 

assignment of error, we overrule it. 

C. Third Assignment of Error – Whether the Trial Court Failed to Make the 

Necessary Findings to Sentence Smith Consecutively 

{¶ 33} In Ohio, there is a broad presumption against consecutive sentencing. R.C. 

2929.41(A). However, that presumption is overcome and consecutive sentences may be 

imposed if consecutive sentences are agreed to by the defendant or mandatory. See State 

v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, ¶ 43; State v. Alexander, 10th Dist. No. 

16AP-761, 2017-Ohio-4196, ¶ 9; see also, e.g., R.C. 2929.14(B)(2)(d) and (C)(1-3, 5-6). In 

cases where consecutive sentences are discretionary and not agreed to by the defendant, in 

order to overcome the presumption against consecutive sentences, the trial court must first 

make the findings set forth in R.C. 2929.14(C)(4): 

(4) If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively if the court 

finds that the consecutive service is necessary to protect the 
No. 18AP-525 17 

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 postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as part 

of one or more courses of conduct, and the harm caused by two 

or more 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 

that consecutive sentences are necessary to protect the public 

from future crime by the offender. 

{¶ 34} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing 

hearing and incorporate its findings into its sentencing entry, but it has no obligation to 

state reasons to support its findings nor must it recite certain talismanic words or phrases 

in order to be considered to have complied. State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, syllabus; State v. Howze, 10th Dist. No. 13AP-386, 2013-Ohio-4800, ¶ 18. Yet, 

"sentencing consecutively without first overcoming the presumption that sentences are to 

be imposed concurrently 'is contrary to law and constitutes plain error.' " State v. Greene, 

10th Dist. No. 17AP-667, 2018-Ohio-3135, ¶ 15, quoting State v. Jones, 10th Dist. No. 14AP80, 2014-Ohio-3740, ¶ 18; State v. Boynton, 10th Dist. No. 12AP-975, 2013-Ohio-3794, 

¶ 12; State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 18. 

{¶ 35} In this case, the trial court found that Smith's assaults against D.M. were 

more serious forms of these offenses, that Smith was a danger to the community, and was 

likely to reoffend. (Sentencing Tr. at 21-28, 31.) While not a talismanic recitation of the 

statute, this shows the trial court considered whether "consecutive service 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 
No. 18AP-525 18 

danger the offender poses to the public," and having indicated it had done this, the trial 

court concluded that consecutive service was necessary. R.C. 2929.14(C)(4). The trial court 

also found Smith's criminal history of abusing women to be a factor making it likely he 

would reoffend. (Sentencing Tr. at 27-28.) This is sufficient to show the court considered 

R.C. 2929.14(C)(4)(c) to be satisfied. Finally, it was abundantly clear from the trial court's 

statements throughout the sentencing hearing that it felt that the severity of D.M.'s injuries 

was such that the harm caused by the offenses was so great or unusual that no single prison 

term would have adequately reflected the seriousness of Smith's conduct. (Sentencing Tr. 

at 19, 22-23, 30.) R.C. 2929.14(C)(4)(b). The trial court also included these specific 

statutory findings in its judgment entry. (May 30, 2018 Jgmt. Entry at 2.) 

{¶ 36} Smith's third assignment of error is overruled. 

D. Fourth Assignment of Error – Whether Trial Counsel Rendered 

Ineffective Assistance in Relation to Smith's Sentencing 

{¶ 37} Ineffective assistance of counsel claims are assessed using the two-pronged 

approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the 

defendant must show that counsel's performance was deficient. * * * Second, the defendant 

must show that the deficient performance prejudiced the defense." Id. at 687. "In 

evaluating counsel's performance, 'a court must indulge a strong presumption that 

counsel's conduct falls within the wide range of reasonable professional assistance; that is, 

the defendant must overcome the presumption that, under the circumstances, the 

challenged action "might be considered sound trial strategy." ' " State v. Roush, 10th Dist. 

No. 12AP-201, 2013-Ohio-3162, ¶ 37, quoting Strickland at 689, quoting Michel v. 

Louisiana, 350 U.S. 91, 101 (1955). "To show prejudice, the appellant must establish that 

there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different.' " Roush at ¶ 37, quoting State v. Hale, 119 Ohio 

St.3d 118, 2008-Ohio-3426, ¶ 204; see also Strickland at 694. The failure to make either 

showing (deficient performance or prejudice) defeats a claim of ineffective assistance of 

counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 

(" '[T]here is no reason for a court deciding an ineffective assistance claim to approach the 

inquiry in the same order or even to address both components of the inquiry if the 

defendant makes an insufficient showing on one.' "). 
No. 18AP-525 19 

{¶ 38} Smith offers essentially four arguments for how his trial attorney fell below 

the constitutionally required standard of effectiveness in relation to sentencing. First, he 

argues that defense counsel failed to challenge the prosecutor's false assertion in the 

sentencing memorandum that the beating lasted eight and one-half hours. (Smith's Brief 

at 38-39.) Second, trial counsel failed to object to the submission of sentencing exhibits to 

chambers. Id. at 39-40. Third, counsel failed to adequately develop mitigating 

circumstances to present. Id. at 40. Fourth, defense counsel was passive in his 

presentation. Id. at 40-41. We address these in order. 

{¶ 39} The prosecution memorandum does not indicate that the assault lasted eight 

and one-half hours. The prosecution stated in its memorandum that D.M. told the police 

that the assaults began at 9:00 p.m. and lasted until she called the police the following 

morning at 5:22 a.m., which is an accurate description of what is in the police report. 

(May 18, 2018 Sentencing Memo. at 3; State's Ex. A at 2-3.) The fact that D.M. later 

contradicted it in her second statement and again at the sentencing hearing does not 

automatically make the initial statement false and her later recantations true, nor has the 

prosecution offered the court falsehoods. While the defense could have chosen to greater 

emphasize D.M.'s shifting narrative, such a strategy could also have easily been perceived 

as manipulative and a further example of the history of domestic violence against the victim 

by Smith. This may have been a strategy employed by Smith's counsel at the trial court 

level, letting D.M.'s later conflicting statements speak for themselves. 

{¶ 40} Perhaps Smith's counsel should have objected to the prosecution submitting 

the exhibits directly to chambers days before sentencing rather than filing them. Although 

medical records are exempted from the general e-filing requirement by section I of the 

Court of Common Pleas' Fourth Amended Administrative Order (15MS-216), an exception 

from the e-filing requirement does not mean that an entire exhibit should not be docketed 

and filed at all. Moreover, not all of the exhibits were medical records. Some were 

photographs and some were police reports. In short, if D.M.'s privacy had been the driving 

concern, rather than submitting the exhibits directly to chambers, the prosecutor could 

have conferred with the defense and the court to coordinate filing the records under seal or 

an appropriate protective order. See Crim.R. 57(B); Civ.R. 26(C). This could have been 

objected to. Nevertheless, given that the exhibits were introduced during the sentencing 
No. 18AP-525 20 

hearing and made available to the defense in discovery, we do not see any reasonable 

probability that the result of the sentencing hearing would have been different had the 

defense objected to the provision of such exhibits to chambers rather than by formal filing. 

The supposition, advanced by Smith, that the trial judge "dwell[ed]" on the exhibits for four 

days prior to the sentencing hearing is not supported by the record and does not take 

account of the fact that Smith's case was one of many on the trial court's busy schedule. 

(Smith's Brief at 39-40.) 

{¶ 41} Other than hints about intoxication and what other medical records could 

have shown about D.M.'s condition, Smith does not (and cannot, in a direct appeal) present 

any indication of significant mitigating evidence that defense counsel could have discovered 

and presented but failed to present. Thus, he cannot show either that defense counsel was 

deficient in failing to discover any hypothetical mitigation or that the mitigation stood a 

reasonable probability of altering the result had it been discovered and presented. 

Arguments such as this rely on evidence outside the record and are therefore not 

appropriately argued on direct appeal. " 'A reviewing court cannot add matter to the record 

before it, which was not a part of the trial court's proceedings, and then decide the appeal 

on the basis of the new matter.' " State v. Oteng, 10th Dist. No. 18AP-58, 2018-Ohio-3138, 

¶ 25, quoting State v. White, 10th Dist. No. 14AP-160, 2015-Ohio-5365, ¶ 11; Morgan v. 

Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, ¶ 13; State v. Ishmail, 54 Ohio St.2d 402 (1978), 

paragraph one of the syllabus. 

{¶ 42} While "passive" may be a fair descriptor of defense counsel's presentation 

during the sentencing hearing, we cannot say that a different approach would have been a 

better strategy or would have had a reasonable probability of leading to a different outcome. 

Smith posits that if defense counsel had crafted D.M.'s recantation into a memorandum, 

argued his suitability for CBCF,2 and "advocated zealously for his client, the outcome surely 

would have been a more favorable sentence." (Smith Brief at 41-42.) We disagree. D.M.'s 

recantation, even through the sterilizing lens of a written transcript, is rambling, broken, 

and dissociative. The pictures of her face speak volumes to how savagely she was beaten. 

(State's Ex. C.) Crafting a full sentencing presentation around her startling attempt to 

protect her tormentor would likely, if anything, have more aptly demonstrated the toxicity 

 

2 Community based correction facility. 
No. 18AP-525 21 

of the relationship to the sentencing judge, who was clearly familiar with patterns of 

domestic violence that were visible at Smith's sentencing between the perpetrator and the 

victim. Suitability for CBCF, while a potentially useful data point, is not legally a substitute 

for the trial court's review of the statutory sentencing factors (most of which were against 

Smith). And references to "zealous" advocacy have been omitted from the Ohio Rules of 

Professional Conduct "because 'zeal' is often invoked as an excuse for unprofessional 

behavior." Prof.Cond.R. 1.3 (Comparison to former Ohio Code of Professional 

Responsibility). Smith's counsel may have recognized as useful a strategy of being reserved 

in a delicate case and arguing only points that are vulnerable to yield better results than 

blind zealotry in defense of recognizable patterns of domestic violence that are indefensible. 

{¶ 43} We do not find that defense counsel was ineffective. Smith's fourth 

assignment of error is overruled. 

IV. CONCLUSION 

{¶ 44} Because the methods of Smith's assaults against D.M. demonstrated varying 

animuses for his actions and inflicted harms that were separate and identifiable, we agree 

with the trial court that they were not allied offenses. While we acknowledge an abovenormal level of emotional investment in the case on the part of the trial judge, we do not 

find that the sentencing was rendered unfair by it. The trial judge made all necessary and 

appropriate findings in supporting the sentence imposed. Finally, we conclude that Smith's 

trial counsel was not ineffective. Accordingly, we overrule all four of Smith's assignments 

of error and affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

LUPER SCHUSTER and BEATTY BLUNT, JJ., concur. 

LUPER SCHUSTER, J., concurring. 

{¶ 45} While I concur in the judgment of the majority overruling Smith's four 

assignments of error, I write separately to clarify my reasoning as to Smith's first, second, 

and fourth assignments of error. 

{¶ 46} In his first assignment of error, Smith argues the trial court erred in failing to 

merge the two counts of felonious assault for purposes of sentencing. The majority states 

that the offenses here cannot be said to have been committed separately because they 

occurred in a single room over a substantial period of time, and the majority further states 
No. 18AP-525 22 

that "in the average altercation, it would not be appropriate to impose an assault charge for 

each punch thrown." (Majority at ¶ 17.) I do not agree with the majority that the case law 

necessarily compels the conclusion that the two offenses of felonious assault here cannot 

be said to have been committed separately merely because they occurred in the same room. 

Further, I do not agree with the majority's characterization of any criminal offense as fitting 

a prototype of an "average altercation," and I am concerned about the use of broad 

generalizations being applied to facts not before this court in the instant matter. 

{¶ 47} I would not reach the issue of whether the offenses in this case were 

committed separately. See State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25 (noting 

that if any of prongs of the three-part allied offense test is true, the offenses do not merge). 

Instead, I would confine my analysis to whether there was separate harm. Because I agree 

with the majority that the harm from the blunt force attack was separate from the harm 

inflicted by the strangulation, I would conclude the offenses are of dissimilar import in that 

"each offense caused separate, identifiable harm." Ruff at ¶ 25. Having satisfied the first 

prong of the Ruff test, I would end the analysis of Smith's merger argument at this point 

and overrule his first assignment of error on that basis. 

{¶ 48} As to Smith's second assignment of error, the majority concludes under the 

second prong of this assignment of error that Smith has properly raised the issue of judicial 

bias and that this court may review that claim. Although the majority ultimately concludes 

Smith did not demonstrate a case of judicial bias and overruled his assignment of error on 

that basis, I would not depart from the line of cases of this court holding that, "pursuant to 

R.C. 2701.03, the Supreme Court of Ohio, not the appeals courts, has authority to determine 

a claim that a common pleas court judge is biased or prejudiced." State v. Hussein, 10th 

Dist. No. 15AP-1093, 2017-Ohio-5519, ¶ 9; State v. Scruggs, 10th Dist. No. 02AP-621, 

2003-Ohio-2019, ¶ 15 ("an appellate court is without authority to pass upon issues of 

disqualification or to void a judgment on the basis that a judge should be disqualified for 

bias or prejudice"). Thus, I would overrule Smith's second prong of his second assignment 

of error on the grounds that he did not invoke the jurisdiction of the proper court to review 

his claim of bias. Hussein at ¶ 9. Additionally, I do not agree with the majority's statement 

that the trial court displayed "an above-normal level of emotional involvement" in this case. 

(Majority at ¶ 27.) 
No. 18AP-525 23 

{¶ 49} In Smith's third assignment of error, he argues, in part, that his trial counsel 

was ineffective in failing to object to the submission of sentencing exhibits directly to 

chambers. I do not agree with the majority's statement that "it was not fair practice and 

could even be sanctionable for the prosecution to have submitted the exhibits directly to 

chambers." (Majority at ¶ 40.) Rather than opine, as the majority does, about the propriety 

of the state's actions in submitting the exhibits, I would instead confine my analysis to the 

conduct of Smith's counsel as this claim is one for ineffective assistance of counsel. 

{¶ 50} Under the rubric of ineffective assistance of counsel, I would note that 

counsel's decision whether or not to object is a matter of trial strategy, and on appeal, we 

consider whether such an objection would have been meritorious. State v. Hodson, 10th 

Dist. No. 18AP-242, 2019-Ohio-1734, ¶ 46. Given that (1) Smith does not provide any 

citation supporting his position that the submission of exhibits was error, (2) the exhibits 

were made available to defense counsel and introduced during the sentencing hearing, and 

(3) trial courts are afforded considerable latitude in what they may consider during the 

sentencing phase pursuant to R.C. 2929.19, I would conclude Smith does not demonstrate 

deficient performance under the first prong of the Strickland analysis related to his 

counsel's failure to object to the state's method of submission of the exhibits to the trial 

court. See State v. Ali, 10th Dist. No. 18AP-935, 2019-Ohio-3864, ¶ 12 (noting "R.C. 

2929.19 permits a trial court to consider 'information relevant to the imposition of sentence' 

in crafting an appropriate sentence"). 

{¶ 51} For these reasons, I concur separately.