[Cite as State v. Polley , 2020-Ohio-3213.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

State of Ohio Court of Appeals No. OT-19-039 Appellee Trial Court No. 19 CR 099

v. Joshua Polley DECISION AND JUDGMENT Appellant Decided: June 5, 2020

* * * * * James J. VanEerten, Ottawa County Prosecuting Attorney, and Blake W. Skilliter, Assistant Prosecuting Attorney, for appell ee. Brett A. Klimkowsky, for appellant.

* * * * * MAYLE, J.

Introduction {¶ 1} Following a jury trial in the Ottawa County Court of Common Ple as, the defendant-appellant, Joshua Polley, was convicted of attempted murder and assault. The trial court sentenced him to an indefinite term of 10 to 15 yea rs in prison. On appeal,2. Polley argues that the sentence is contrary to law. As set for th below, we affirm the trial court’s judgment. Background {¶ 2} The evidence at trial established that Polley, his girlfriend, and a group of friends were gathered at his girlfriend’s home in Ottawa County on the evening of May 3, 2019. Polley became upset with his girlfriend, and he confront ed her by yanking her to the ground and pulling her hair. S.W., who was a guest that ni ght, attempted to intervene, and Polley responded by hitting S.W. in the chest. Another gue st, J.C., tried to help S.W. by pushing Polley away. Polley struck J.C. in the face, causin g her to lose consciousness and break her nose. Polley then resumed his beating of S.W., t his time with a small kitchen knife. Polley stabbed S.W. in the neck, arms, and hand s before S.W. was able to break free and retreat from the house. Polley grabbed a meat c leaver and chased S.W. Once outside, Polley threw the meat cleaver at S.W., which stru ck him in the back of his head, blade first, and fractured his skull. When the police ar rived, they found S.W. bleeding profusely from the head. Later that night, S.W. was a irlifted to the Cleveland Clinic for treatment. After a police search, Polley was appreh ended. {¶ 3} On May 16, 2019, Polley was indicted on eight counts: assault, in violation of R.C. 2903.13(A) and (C)(1), a misdemeanor of the first degre e (Count 1); attempted murder, in violation of R.C. 2923.02(A) and (E)(1) and 2903.02( A), a felony of the first degree (Count 2); attempted murder, in violation of R.C. 2923.0 2(A) and (E)(1) and 2903.02(B), a felony of the first degree (Count 3); felonious a ssault, in violation of R.C.3. 2903.11(A)(1) and (D)(1)(a), a felony of the second degree (Cou nt 4); felonious assault, in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a felony of t he second degree (Count 5); aggravated assault, in violation of R.C. 2903.12(A)( 1)(b), a felony of the fourth degree (Count 6); aggravated assault, in violation of R. C. 2903.12(A)(2)(b), felony of the fourth degree (Count 7), and obstructing official busine ss, in violation of R.C. 2921.31(A) and (B), a felony of the fifth degree (Count 8). {¶ 4} Polley was tried before a jury and found guilty on five counts: assault (Count 1), both counts of attempted murder (Counts 2 and 3) and both counts of felonious assault (Counts 4 and 5). {¶ 5} Polley was sentenced on October 2, 2019. At the conclusion of t he hearing, the trial court imposed a 180-day sentence as to the assault of fense (Count 1). The trial court found that the remaining counts (Counts 2-5) were “qualif ying offenses” subject to indefinite sentencing under R.C. 2929.144. 1 The trial court merged Counts 2-5 as allied

1 R.C. 2929.144 is part of The Reagan Tokes Law, which took effect on March 22, 2019. The law “significantly altered the sentencing structure for man y of Ohio’s most serious felonies” by implementing an indefinite sentencing system for t hose non-life felonies of the first and second degree, committed on or after the effectiv e date. See R.C. 2929.144(A) defining a “Qualifying offense.” The new law requi res the sentencing judge to impose a “minimum term” from within the currently establishe d sentencing range (set forth in R.C. 2929.14) and a “maximum term” of an additional fi fty percent of the “minimum term” imposed. See R.C. 2929.144(B). “Release [from prison] is presumed to occur at the expiration of the ‘minimum term,’ however the D epartment of Rehabilitation and Corrections may * * * rebut that release pre sumption and impose additional prison time up to the ‘maximum term.’” The DRC may also reduce the minimum term, with the approval of the sentencing court. See The Ohio Criminal Sentencing Commission, SB 201 Quick Reference Guide May 2019. Polley does not4. offenses of similar import under R.C. 2941.25, and the state el ected to have Polley sentenced under Count 2 (attempted murder). The court then sen tenced Polley to a minimum prison term of 10 years and a maximum prison term of 15 years. It ordered that the sentence be served concurrently with Count 1. It furt her imposed a five-year mandatory term of post release control. {¶ 6} Polley appealed and raises a single assignment of error for our review. Assignment of Error: The Trial Court’s sentence of Joshua T. P olley (“Appellant”) is excessive and/or violative of the law. Law and Analysis {¶ 7} We review sentencing challenges under R.C. 2953.08(G)(2). This statute allows an appellate court to increase, reduce, or otherwise mod ify a sentence or vacate the sentence and remand the matter for resentencing only if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s fin dings under division (B) or (D) of section 2929.13, division (B)(2)(e ) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revi sed Code, whichever, if any, is relevant;

challenge the trial court’s determination that he is subject to indefinite sentencing because he committed “qualifying offenses” after the effective date of the statute.5. (b) That the sentence is otherwise contrary to law. R.C. 2953.08(G)(2). {¶ 8} A sentence is not clearly and convincingly contrary to law wher e the trial court has considered the purposes and principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, prop erly applied postrelease control, and imposed a sentence within the statutory range. State v. Tammerine , 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15-16, citing State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. {¶ 9} Here, Polley does not challenge the trial court’s compliance wi th the sentencing statutes identified in subsection (a) of R.C. 2953.0 8(G)(2), nor does he claim that the trial court misapplied postrelease control under R.C. 2967.28, or that it imposed a sentence outside the statutory range for a first-degree felony under R.C. 2929.14(A)(1)(a). (“For a felony of the first degree committed on or after [March 22, 2019], the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code * * *.”). In his appeal, Polley argues that his sentence is exc essive because it fails to achieve the principles and purposes of sentencing, as set forth in R.C. 2929.11. He also challenges the weight that the court assigned to the various fa ctors it was required to

consider under R.C. 2929.12.6. {¶ 10} An appellate court may review a sentence imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12 “under a standard that is equally deferential to the sentencing court.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231, ¶ 23. Thus, we may vacate or modify the sentence only if we find by clear and convincing evidence that the record does not suppo rt the sentence. Id. {¶ 11} Under R.C. 2929.11(A), the purposes of felony sentencing are “t o protect the public from future crime by the offender and others, to pun ish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” To achieve these purpose s, the sentencing court must consider “the need for incapacitating the offender, deterr ing the offender and others from future crime, rehabilitating the offender, and making rest itution to the victim of the offense, the public, or both.” R.C. 2929.11(A). The sentence imposed shall be reasonably calculated to achieve the overriding purposes, “comm ensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes commit ted by similar offenders.” R.C. 2929.11(B). {¶ 12} R.C. 2929.12 grants discretion to the trial court to determine the most effective way to comply with the purposes and principles of sen tencing, and it lists general factors that the trial court must consider relating to the seriousness of the offender’s conduct, the likelihood of recidivism, and, if appli cable, the offender’s service7. in the U.S. armed forces. R.C. 2929.12(A) also permits the cou rt to “consider any other factors that are relevant to achieving those purposes and princ iples of sentencing.” A sentencing court has “broad discretion to determine the relativ e weight to assign the sentencing factors in R.C. 2929.12.” State v. Brimacombe , 195 Ohio App.3d 524, 2011- Ohio-5032, 960 N.E.2d 1042, ¶ 18 (6th Dist.). {¶ 13} At the October 2, 2019 hearing and in its judgment entry, the t rial court expressly stated that it had “considered the record, the oral s tatements, all victim impact statements, as well as the principles and purposes of sentencin g under * * * R.C. 2929.11 [and] balanced the seriousness and recidivism factors under [R. C] 2929.12.” The court further specified at the hearing that the “more likely recidivi sm factors outweigh[ed] the less likely [recidivism] factors and the more serious factors o utweigh[ed] the less serious

factors” under R.C. 2929.12. These statements demonstrate that the court considered R.C. 2929.11 and 2929.12 as required. See, e.g., State v. Torres , 6th Dist. Ottawa No. OT-18-008, 2019-Ohio 434, ¶ 13, citing State v. Kilgour , 3d Dist. Marion Nos. 9-16-04, 9-16-05, 2016-Ohio-7261, ¶ 14. {¶ 14} Polley, however, claims that the trial court failed to use the minimum sanctions available, as required by R.C. 2929.11(A), and assign ed insufficient weight to certain mitigating factors, i.e., his “mental illness and remor se,” under R.C. 2929.12. We disagree. {¶ 15} Although R.C. 2929.11(A) requires the trial court to impose “th e minimum sanctions that the court determines accomplish those purposes w ithout imposing an8. unnecessary burden on state or local government resources,” thi s does not mean that the court must impose the statutory minimum sentence. To the contr ary, “the trial court ha[s] full discretion to impose any sentence within the authorized st atutory range * * *.” State

v. Connors , 2d Dist. Montgomery No. 26721, 2016-Ohio-3195, ¶ 6. {¶ 16} Likewise, the trial court had full discretion to determine whether the mitigating factors of R.C. 2929.12(C) were outweighed by the seriousness of Polley’s

conduct. During the sentencing hearing, the state reminded the court tha t, after Polley was convicted, he threatened “the victim [and] corrections offi cers [when he said] ‘I was nice while I [was] in here, but now you will see the real me’ a nd ‘I should have just killed the victim [because] I would have gotten the same sentence.’” The state also pointed to Polley’s “prior domestic violence convictions” as evidence of h is “explosive anger” issues. The trial court found these factors to be significant , adding that Polley’s sentencing hearing had to be “moved up” because Polley had “mad e it very clear” to corrections officials that “it would not be easy to * * * maint ain [him]” at the local jail. The trial court concluded that Polley “certainly” needed to be punished, but given Polley’s “anger issues,” the need to protect the public also “w eigh[ed] very heavily [on]

the Court’s mind.” {¶ 17} While Polley argues that the trial court overlooked certain mit igating factors under R.C. 2929.12(C)—i.e., his “genuine remorse” and m ental illness—the trial court was not required to specify which statutory factors it re lied upon. Torres at ¶ 14;9. State v. Wymer , 6th Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 10. From our review of the sentencing hearing transcript, the trial court appears t o have concluded that certain R.C. 2929.12(B) factors—including the fact that Polley caused “ serious physical * * * harm” to the victim—outweighed any possible grounds for mitigat ion. Moreover, the trial court could have concluded that Polley’s claim that he wa s “sorry for everything” did not demonstrate “genuine remorse” as required by R.C. 2929. 12(E)(5). See, e.g.,

State v. Anderson , 172 Ohio App.3d 603, 2007-Ohio-3849, 876 N.E.2d 632 (11th Dis t.) (Trial court was not required to accept defendant’s “last hour show of remorse” when applying recidivism factors for sentencing). And to the extent that Polley now argues that he “needs mental health treatment—not a lengthy term of in carceration—in order for the goal of felony sentencing to properly be served,” the trial court concluded otherwise, and we will not disturb this finding on appeal. {¶ 18} Simply put, as an appellate court, we may not substitute our ju dgment for that of the trial judge even if a different judge may have weig hed the statutory factors differently. State v. Irwin, 8th Dist. Cuyahoga No. 108099, 2019-Ohio-4462, ¶ 15. Because the trial court imposed a sentence within the statutori ly-permissible range, properly imposed post-release control, and properly evaluated R .C. 2929.11 and 2929.12 in imposing Polley’s sentence, we find that his sentence was no t contrary to law under R.C. 2953.08(G)(2)(b). Therefore, we find his assignment of er ror not well-taken.10. Conclusion {¶ 19} We find Polley’s sole assignment of error not well-taken. The trial court properly considered the purposes and principles of sentencing u nder R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, and Polley has presented no clear and convincing evidence that his sentence was not support ed by the record. We affirm the October 2, 2019 judgment of the Ottawa County Court of Common Pleas. The costs of this appeal are assessed to Polley under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.