[Cite as State v. Hawkins , 2020-Ohio-5103.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO Plaintiff-Appellee

v. GEORGE H. HAWKINS Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-34

Trial Court Case No. 2019-CR-214 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of October, 2020.

. . . . . . . . . . . SAMUEL ADAM USMANI, Atty. Reg. No. 0097223, Champaign County Pr osecutor’s Office, Appellate Division, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Bouleva rd, Suite 270, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FROELICH, J.-2-

{¶ 1} George H. Hawkins pled guilty in the Champaign County Court of Common Pleas to an amended charge of domestic violence, in violation o f R.C. 2919.25(A), a felony of the fourth degree. Hawkins was on post-release contr ol when the offense occurred. The trial court sentenced Hawkins to 18 months in pr ison for the domestic violence. Pursuant to R.C. 2929.141, the trial court also term inated his post-release control and imposed 832 days in prison, to be served consecutiv ely to the 18-month sentence. Hawkins appeals from his conviction, challenging his sentence. For the following reasons, the trial cour t’s judgment will be affirmed. I. Facts and Procedural History {¶ 2} At Hawkins’s plea hearing, the prosecutor provided the followin g underlying

facts. * * * Champaign County Sheriff Deputies were dispatched August 16, 2019, herein in Champaign County, Ohio, to 8377 Urbana Woodstoc k Pike in Rush Township, on a report of a female crying in a vehicle. The female made her way to 265 West Elm Street in North Lewisbu rg and called 911 from that location. Law enforcement was able to identify this individual * * *. [The victim] indicated that she was the victim of a

domestic violence incident between herself and the Defendant. The Defendant, she indicated, is the father of her daughter. And t hat they were coming home from some sort of celebratory gathering. And while they were driving in the motor vehicle she indicates that the Defend ant became angry for an unknown reason, pinned her back by striking her in the chest,-3- grabbed the steering wheel of the motor vehicle while it was mo ving, and, from her perspective, attempted to crash the vehicle. The [vic tim] stated

that Defendant hit her in the arm. * * * [T]he Defendant was also intoxicated at the time this occ urred. The Defendant was subsequently located by law enforcement and w as found to be intoxicated. He was interviewed and denied – at th e time he denied engaging in the domestic violence incident as described by [the victim]. * * * {¶ 3} Hawkins was indicted on one count of domestic violence, a third -degree felony based on an additional allegation in the indictment that Hawkins had previously pleaded guilty to or been convicted of six offenses of domestic violence. The parties subsequently reached an agreement that Hawkins would plead guil ty to an amended charge of domestic violence, a fourth-degree felony based on hi s having previously pleaded guilty or been convicted of domestic violence in Champa ign C.P. No. 2013-CR327. The parties also agreed that Hawkins was subject to 856 d ays in prison if his postrelease control were revoked. (The parties referred to additio nal prison term as “post release control enhancement time.”) After a Crim.R. 11 hearing , the trial court accepted Hawkins’s guilty plea and, at Hawkins’s request, ordered a pres entence investigation. {¶ 4} Defense counsel filed a detailed sentencing memorandum addressi ng the purposes and principles of sentencing under R.C. 2929.11 and th e sentencing factors under R.C. 2929.12. With respect to the seriousness of the off ense, counsel argued that, during the offense, the victim was also intoxicated and h ad refused to stop the car.

Counsel stated that “Defendant’s actions towards the victim wer e solely to get the Victim-4- to stop the vehicle and allow the Defendant to extricate from t he argument and the Victim’s threat of taking him to p rison.” Counsel asserted tha t Hawkins did not intend to cause harm, although he did. As for the likelihood of recidivi sm, counsel acknowledged that Hawkins had been on post-release control and had prior adj udications as a juvenile, but asserted that Hawkins had an addiction to alcohol, was will ing to obtain treatment, and was remorseful for his actions. Counsel argued that Hawkin s’s sentence should

focus on rehabilitation. {¶ 5} At the sentencing hearing, the trial court heard from defense c ounsel, the prosecutor, Hawkins, and the victim. Speaking on Hawkins’s beh alf, defense counsel indicated that Hawkins was ashamed of his actions, but acknowle dged that recidivism was “very likely.” Counsel argued, however, that Hawkins had n ever had an opportunity to complete treatment at West Central (Hawkins had gone to West Central, but could not complete the program due to a medical issue), and that Hawkins’ s childhood trauma had led to the drug and alcohol abuse, as well as issues with aggre ssion and impulsivity. Counsel argued that Hawkins had reached a point in his life whe re he was ready to change. Counsel agreed that the proposed conditions for commun ity control – that he have no contact with the victim or their 25-year-old daughter – were appropriate and that Hawkins had no objection to them. {¶ 6} The victim directed her remarks to Hawkins. She told him that she forgave him and encouraged him to get mental health treatment. {¶ 7} The prosecutor disputed Hawkins’s assertion that he was taking responsibility for his actions; the prosecutor noted that Hawki ns suggested, mainly in his sentencing memorandum, that he was provoked by the victim. The prosecutor further-5- emphasized Hawkins’s lengthy criminal history, which began when Hawkins was 13 years old. The prosecutor noted 16 adjudications of delinquency and 46 adult convictions. (Hawkins was 42 years old at sentencing.) The prosecutor count ed 25 crimes of violence, including assaults and prior acts of domestic violenc e. The prosecutor stated that Hawkins had been to the Department of Youth Services, to j ail, to prison (five times), on post-release control, and to West Central; the current offen se was committed four months after Hawkins’s release from prison, while he was on pos t-release control. The State requested the maximum 18-month sentence plus “post-releas e control enhancement time” of 832 days. {¶ 8} Speaking on his own behalf, Hawkins apologized to the victim, e xpressed that he was ashamed of his actions, and asked the court to help him with his alcohol addiction. Hawkins told the court about the sexual, physical, and emotional abuse he had endured as a child. He explained that he turned to alcohol to “take[ ] away [his] pain.” Hawkins asked the court not to send him to prison, but to send him to West Central for six months and then to “[V]OA” 1 for an additional six months. Hawkins also asked the court to let the parole board address his post-release cont rol violation. {¶ 9} As stated above, the trial court imposed the maximum term of 18 -months in prison for the domestic violence. It also terminated Hawkins’s post-release control and ordered him to serve an additional 832 days for the post-releas e control violation. In doing so, the trial court acknowledged that Hawkins had gone to West Central once before and had not been kicked out, but the court questioned the appro priateness of West

1 Hawkins may be referring to a residential program offered by Vo lunteers of America, but the record does not clarify his request.-6- Central in this case. It told Hawkins: * * * “[West Central] might have been appropriate some time ago . But, nevertheless, it is difficult at this point in time to say whet her West Central may do you some good. And as I read the PSI, I could see where the problems with you seemed to have started when you were a child and the way you were treated. Which was not the best in the world. As suming what you are telling them is accurate about your upbringing. A nd there is probably more responsibility for your behavior for the way that you were brought up than any of us know. But I can’t go back and correc t any of that at this point in time. And at this point in time there is really very little that the Court can do. West Central is just a holding place for you. And that is going to be the extent of it. And I don’t find that West Central is going to be appropriate under your circumstances. The court noted that Hawkins had been in and out of prison, and that it was “time for in again. And it is unfortunate. There isn’t any reason why it s hould have to be that way. But you evidently can’t control your behavior.” {¶ 10} The trial court orally stated that it had considered the purpos es and principles of sentencing under R.C. 2929.11, balanced the serio usness and recidivism factors under R.C. 2929.12, considered the oral statements of H awkins and counsel, the presentence investigation report, a written statement by Hawkin s, and the factors in R.C. 2929.13(B). In its judgment entry, it noted with respect to R. C 2929.13(B) that Hawkins had previously served five prison terms for aggravated assault (1997), abduction (2008),-7- and domestic violence (2011, 2012, 2013), that he was on post-r elease control when he committed the instant offense, and that he had a high Ohio Risk Assessment score. {¶ 11} Hawkins appeals from his conviction, challenging his sentence.

II. Review of Hawkins’s Sentence {¶ 12} Hawkins’s sole assignment of error claims that “[t]he trial cou rt’s sentence does not conform to the relevant Ohio sentencing statutes, resu lting in an abuse of discretion.” Specifically, Hawkins argues that the trial court failed to properly consider rehabilitation as a purpose of fe lony sentencing and to properl y weigh the statutory factors

under R.C. 2929.12. {¶ 13} In reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Und er R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it “clearly and convincingly” finds either (1) that the record does not support certain speci fied findings or (2) that the sentence imposed is contrary to law. State v. Huffman , 2d Dist. Miami No. 2016-CA-16, 2017-Ohio-4097, ¶ 6. {¶ 14} “The trial court has full discretion to impose any sentence wit hin the authorized statutory range, and the court is not required to ma ke any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King , 2013- Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exerci sing its discretion, a trial court must consider the statutory policies that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard , 194 Ohio App.3d 500,-8- 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. {¶ 15} R.C. 2929.11 requires trial courts to be guided by the overridi ng purposes of felony sentencing. Those purposes are “to protect the publi c from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determi nes accomplish those purposes without imposing an unnecessary burden on state or loc al government resources.” R.C. 2929.11(A). The court must “consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public , or both.” Id . R.C. 2929.11(B) further provides that “[a] sentence imposed for a fe lony shall be reasonably calculated to achieve the three overriding purposes of felony s entencing * * *, commensurate with and not demeaning to the seriousness of the o ffender’s conduct and its impact upon the victim, and consistent with sentences impos ed for similar crimes committed by similar offenders.” {¶ 16} R.C. 2929.12(B) sets forth nine factors indicating that an offe nder’s conduct is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct is less seri ous than conduct normally constituting the offense. R.C. 2929.12(D) and (E) each lists f ive factors that trial courts are to consider regarding the offender’s likelihood of committi ng future crimes. Finally, R.C. 2929.12(F) requires the sentencing court to consider the o ffender’s military service record, if any. {¶ 17} Upon review of the record, the trial court’s 18-month sentence was not-9- clearly and convincingly unsupported by the record. Hawkins wa s expelled from high school for fighting, and he had been involved with the court sy stem since he was 13 years old. The PSI showed 16 juvenile adjudications, many of which i nvolved assaultive behavior. Hawkins had nearly four dozen adult convictions, mos t of them consisting of assault, domestic violence, or disorderly conduct (with underly ing assaultive behavior). Hawkins had been in and out of the Department of Youth Services , jail, or prison for most

of his life. {¶ 18} The PSI indicated that Hawkins’s actions in this case caused br uises to the victim’s chest and arms. She further reported that Hawkins gra bbed the steering while of the vehicle in which they were traveling and tried to crash to vehicle. As stated above, Hawkins has a long-standing history of domestic violence and as sault. {¶ 19} Hawkins has not demonstrated that he can successfully complete community control. For example, in 2012, Hawkins was placed on community control, which was later revoked due to a new felony offense. In 2017, Hawkins committed an offense while under post-release control. He was also under po st-release control when

he committed this domestic violence offense. Hawkins had four rule infractions while in prison, although none led to his removal from the general popul ation. {¶ 20} Hawkins’s statements to the court and the PSI investigator rega rding his childhood trauma and ongoing addiction indicate that Hawkins wo uld benefit from mental health and addiction counseling. Nevertheless, given Hawkins’s lengthy history of violence offenses and the outcomes of his prior juvenile and ad ult criminal cases, we

cannot conclude that the trial court’s 18-month sentence or its termination of post-release control and the imposition of a prison term was clearly and con vincingly unsupported by-10- the record. {¶ 21} Hawkins’s assignment of error is overruled.

III. Conclusion {¶ 22} The trial court’s judgment will be affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Samuel Adam Usmani Thomas M. Kollin Hon. J. Timothy Campbell, Visiting Judge