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THE SUPREME COURT OF OHIO

^^:State of Ohio, 1",Plaintiff-Appellee, : APPEAL FROM THE JUDGMENT ENTERED

VS. : IN THE COURT OF COMMON PLEAS,i^ ..^ .;t f : CASE NO.: CR-11-5535410A

Defendant-Appellant, : COURT OF APPEALS CASE NO.: CA 101142

MEMORANDUM IN SUPPORT OF DEFENDANT-APPELLANT

^ .. ry.

MCIP.O. Box 57Marion, Ohio 43301ATTORNEY FOR DEFENDANT-APPELLANT

IN PRO-SE

Cuyahoga County ProsecutorAssistant Prosecuting Attorney1200 Ontario StreetCleveland, Ohio 44113ATTORNEY FOR PLAINTIFF-APPELLEE

STATE OF OHIO

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DEC 0 42014

CLERK OF COURTREMEC®uRT QFC

TABLE OF CONTENTS

PAGETable of Contents .............................................................................................................................

Table of Authorities . .........................................................................................................................

Explanation Of Why This Is A Case Of Great Or Pubic Interest AndInvolves A Substantial Constitutional Question .............................................................................. 1

Statement of the facts and Case ....................................................................................................... 2

Proposition of Law I:Trial Court Erred By Not Considering The Necessary Factors Set ForthIn The Ohio Revised Code 2929.11 And 2929.12 Denying AppellantOf His Right To Due Process And Equal Protection Of The Law ............................................... 3

Proposition of Law II:Trial Court Failed To Advise Of The Right To Appeal And The Appeals CourtFailed To Recognize Plain Error Under Criminal Rule 52(B) ................................................... 6

Conclusion .......................................... ............................................................................................. 7

Certificate of Service . ...................................................................................................................... 8

TABLE OF CONTENTS

CASE PAGE

State v. Beasley, 471 N.E.2d 774 ............:........................................................................................ 7

State v. Hunter, 2010 Ohio 657 ........................................................................................................ 6

State v. Kalish, 898 N.E.2d 124 ....................................................................................................... 1

State v. Mathis, 2006 Ohio 885 ........................................................................................................ 5

State v. Underwood, 2010 Ohio 1 .................................................................................................... 7

Thompson v. Wilson, 523 F. Supp.2d 626 .. .........................................................,........................... 6

Townsend v. Burke, 334 U.S. 736 .................................................................................................... 3

White v. Johnson, 180 F.3d 648 ....... ................................................................................................ 6

i

EXPLANATION OF WHY T'HIS IS A CASE OF GREAT OR PUBLIC INTEREST ANDINVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case involves (2) two matters of law. First: When the Trial Court fails to advise a Criminal

Defendant of his right to appeal, can the Criminal Defendant appeal his case outside of the (30) thirty-

day time period without his case being dismissed by the doctrine of res judicata?

Here, the Eighth District Court of Appeals acknowledges that Ray never filed a timely appeal

and also aclcnowledges that Ray was never advised of his right to appeal but claims that because Ray

"never raised this argument in the trial court below" that this issue was not preserved for Appellate

Review. W-hat is Criminal Rule 52(B) stand for then? Ray did argue this issue in his reply brief on

`. ' i,i before the Appellate Court. As held in State v. Hunter, 2010 Ohio 657 and in Thompson

v. Wilson, 523 F. Supp.2d 626, Ray has a right to be notified of his right to appeal and if he is not

informed of this right, he must be allowed to appeal once he becomes aware of the issue being

presented, as Ray did in this case.

The doctrine of resjudicata can only be applied IF the Defendant had a chance to raise the

issues or did in fact already raise it. Ray never had a chance to raise this issue as the Trial Court never

advised him of this right.

The next issue being presented is when a sentence does not include all of the applicable rules

and statutes being applied to the sentence, is that sentence void and the doctrine of resjudicata cannot

apply? In this case, Ray's sentencing journal entry fails to comply with State v. Kalish, 8981V.E.2d 124

and State vBeasley, 471 N.E.2d 774 in that the entry fails to include that the Trial Court ever

considered Ohio Revised Code 2929.12 and the trial transcripts shows that ther Sentencing Judge gave

considerations to inapplicable factors that impacted Ray's sentence to the maximum.

The Eighth District Court of Appeals claims that Ray was not "challenging his sentence as

void" but what else was Ray saying? His motion to the Trial Court was to correct the sentence and that

the sentence could only be corrected if it was VOID. Even the sole assignment of error of Appellant

claims that the "Trial Court erred by not considering the necessary factors set forth in Ohio Revised

Code 2929.11 and 2929.12" showing and arguing State v. Beasley, supra that this sentence is void.

STATEVIENT OF THE FACTS AND CASEOn 19 December 2011 Defendant-Appellant (hereafter Appellant) sentencing hearing was held

pursuant to Ohio Revised Code 2929.19. Appellant plead guilty to Aggravated Vehicular Assault, and

Driving While Under the Influence of Alcohol or Drugs and was then sentenced to a term of

iinprisonment of (8) eight years and (6) six months prospectively and both terms were ordered to be

served concurrently. Post-Release Control would be a part of this prison sentence for a mandatory term

of (3) three years as well as ordered to pay a restitution amount of $300,000.00 and a fine of

$11,075.00. However, the Trial Court Judge failed to follow the statutory mandates of Ohio Revised

Code 2929.11 and 2929.12 by failing to make the statutory considerations in this case. Instead, the Trial

Court Judge went outside of statute to impose the maximum terms against Appellant.

In February of 2014 Appellant filed a motion with the Trial Court expressing these errors and

requested an evidentiary hearing to correct this sentence for the above-mentioned errors but was denied

on 28 February 2014. Appellant then filed a timely appeal to the Eighth District Court of Appeals but

was denied on 23 October 2014.

Appellant, now within the appropriate time, appeals to this Court requesting this Court accept

jurisdiction over this case and will review the record and rule accordingly at this time.

Appellant now raises these (2) two assignments of error:

l. Trial Court erred by not considering the necessary factors set forth in Ohio revised Code

2929.11 and 2929.12; and

2. The Trial Court failed to advise of the right to appeal and the Appeals Court failed to

recognize plain error under Criminal Rule 52(B).

PROPOSITION OF LAW I:TRIAL COURT ERRED BY NOT CONSIDERING THE NECESSARY FACTORS SET

FORTH IN OHIO REVISED CODE 2929.11 AND 2929.12 DENYING APPELLATE HISRIGHT TO DUEPROCESS ANI) EQUALPROTECTIONOFTHELAW

Ohio revised Code 2929.11 requires the Sentencing Court to consider the overriding purposes of

felony sentences, which are to "protect the public from future harm ...and to punish the offender." In

addition, the sentence imposed must be reasonably calculated to achieve the two overriding purposes

of felony sentencing and to commensurate with and not demeaning the seriousness of the offender's

conduct and it impact upon the victim and consistent with sentences imposed for similar crimes by

similar offender's.

With that in mind, the Trial Court had a duty required by the United States Constitution as well

as the Ohio Constitution as well as the Ohio Felony Sentencing Guidelines to impose a sentence on

Appellant that was "reasonably calculated" that is "consistent with sentences imposed for similar

crimes by similar offender's" as the plain language of Ohio Revised Code 2929.11 states. In the case at

bar, Appellant was given a maximum term that is to be reserved for the "worst offender's" based upon

the propei considerations and the trial Court Judge failed Appellant in this instance.

The Trial Court Judge used nonfactual statements and evidence (his prior record) against him.

In most cases that would be appropriate but, as the record clearly shows, the prior record that the Judge

referred to was not accurate. Appellant had not served a (8) eight year prison term (see T.T.s pg. 48,

lines 9-12) but that was used to impose a maximum term against Appellant.

As in Townsend v. Burke, 334 U.S. 736, the Supreme Court addressed the habeas corpus

petition of a prisoner who had pleaded guilty to robbery and burglary but alleged that the Court

deprived him of due process during his sentencing hearing. The Sentencing Judge, just prior to

sentencing, addressed the offender and recounted a list of prior offenses, saying that: "1937, receiving

stolen goods, a saxophone. What did you want with a saxophone? Didn't hope to play in the prison

band then, did you?" The Supreme Court determined that: "the trial court's facetiousness casts a

somewhat somber reflection on the fairness of the proceeding when we learn from the record that

actually the charge of receiving the stolen saxophone had BEEN DISMISSED." T'he record also

revealed other blatant inaccuracies in the Judge's concluding comments, just as in this case. The Trial

Court Judge even stated that: "I will not consider any NON CONVIC'TIONS" yet, that is exactly what

she did in this case. Not even the Prosecuting Attorney can show a proper judgment entry ever being

filed against Appellant. Nothing but non convictions and useless paperwork! The Townsend Court

further stated that Petitioner's sentence was: "inconsistent with due process" because it lacked an

essential requirement of fair play, since the Court sentenced the Petitioner "on the basis of assumptions

concerning his criminal record "which were materially untrue."

The Supreme Court tlirough out Townsend's sentence and the Eighth District Court of Appeals

should have done the same in the case at bar birt denied him of his constitutional rights to due process

and equal protection of the law and for that reason, Appellant is entitled to relief, a vacation of this

sentence.

Also contained within the Revised Code's statutory language is that the sentence is "consistent

with sentences imposed for similar crimes by similar offender's." Here is an example of "similar crimes

by similar offender's" without the benefit of the case numbers as Appellant is in prison and without the

help of Counsel, this is the best he can do, 1) Jennifer Kearney (car accident 11 July 2011) sentenced

on 21 November 2012 to a (3) three year term for Aggravated Vehicular Homicide, 2. Helen Fettes, (car

accident) 17 October 2011 sentenced to (5) five years house arrest for Vehicular Homicide, 3. Anthony

Rose Jr. (50 years of age) sentenced to (5) five days in jail for Vehicular Manslaughter of Peter Maglis,

4. Willie Rudd (car accident 31 May 2012) sentenced to (18) eighteen months for Aggravated Vehicular

Assault (three counts), Driving Under the Influence (39 years old), 5. Cedric Francis Car accid.ent)

sentenced to a (1) one year for failing to stop after an accident, Aggravated Assault that was dropped

when admitting to striking a (12) twelve year old girl on 12 September 2012, 6. Gregory Schillo (31

years old) sentenced to (5) five years for Aggravated Vehiculr Assault and Driving Under the Influence

^

on 10 November 2013, 7. Future Banks (38 years old) sentenced to (5) five years for Aggravated

Vehicular Homicide on 19 May 2013. The list can go on but Appellant does not have the resources to

do so at this time. This was included into Appellant's appeal brief and this by itself warranted an

evidentiary hearing but Appellant was denied that right. What Appellant is showing is the "similar

crimes by similar offender's" and Appellant was treated differently. Why? The record clearly shows

why, because the Trial Court Judge used non factual information to impose a maximum term against

him! Appellant never tried to demean the seriousness of this crime but taking into accoLust that the

victim was actually in a marathon later that year shows how this case was not the "worse form of the

offense" and the sentence imposed was clearly unauthorized and the record does not demonstrate a

term of the maximum sentence.

Even after Foster, Trial Court's are still required to consider Ohio Revised Code 2929.11 and

2929.12 when exercising their discretion when imposing a sentence. See State v. Mathis, 2006 Ohio

885 at 38. The Ohio Supreme Court has established a two-step analysis for reviewing a felony

sentence. See State v. Kalish, 89810rE.2d 124 where the Court stated: "the sentencing judge could have

satisfied her duty under revised code 2929.12 with nothing more than a rote recitation that she had

considered the applicable factors. Since revised code 2929.11 and 2929.12 requires the court to

consider certain issues and factors, and in light of this court's holding inArnett, a judgment entry

devoid of any reference to revised code 2929.11 AND 2929.12 would be contrary to law." As in the

case at bar, just look at the entry imposing the sentence. No reference to 2929.11 AND 2929.12 and

therefore, this sentence is clearly and convincingly contrary to law and the Appeals Court had a duty

under Criminal rule 52(B) to acknowledge this but failed to afford Appellant his constitutional rights to

fairness in the proceedings.

Because the record does not demonstrate a reasonable explanation for this sentence and the

record lacks sufficient and inaccurate information to justify this sentence, the sentence imposed must be

vacated at this time. Clearly the Trial Court Judge abused its discretion when imposing this sentence in

contrary to the law in the State of Ohio and in doing so, clearly violated Appellant due process rights

and his right to equal protection of the law which leads to the next proposition of law.

PROPOSITION OF LAW II:

TRIAL COURT FAILED TO ADVISE OF THE RIGHT TO APPEAL AND THE APPEALSCOURT FAILED TO RECOGNIZE PLAIN ERROR UNDER CRIMINAL RULE 52(B)

DENYING APPELLANT OF HIS RIGHT TO DUE PROCESS AND HIS RIGHT TO EQUALPROTECTION OF THE LAW

When Appellant filed his motion tot he Trial Court, the issue of his right to appeal was not

affirmatively addressed because Appellant did not know of such a right at that time. When the Appeal

Brief of Appellant was filed, then the State responded with their Appellee's Brief and in doing so,

notified Appellant of the fact that he had only (30) thirty-days to raise any issues with the Trial Court in

order to be considered timely. After Appellant realized this, he immediately responded in his "Response

to the State's Opposition Brief' that was filed with the Court of Appeals. In this response, Appellant

pointed out the fact that he had never been advised of any right to appeal due to the failures of his

Coui-t Counsel and the Trial Court themselves. In this response.. Appellant notified the Eighth District

Court of Appeals of it's prior holdings in State v. Hunter, 2010 Ohio 657 and the holdings in

Thompson v. Wilson, 523 F. Supp.2d 626 in that because Hunter was not advised of his right to

appeal, the Eighth District Court of Appeals remanded that case back to the Trial Court in order to be

advised of this right. Subsequently, the same Court failed to follow their own holdings in the case at bar

even though they are the exact same issue.

Furthermore, Appellant also advised the Eighth District Court of Appeals of the holdings in

Thompson in that the Sixth Circuit Court granted the Petitioner a release within (90) ninety-days if a

remand was not in order for the Petitioner to appeal. Yet, the Eighth District Court of Appeals failed to

allow Appellant the same rights in this case. Why? To go even farther, the United States Court of

Appeals agreed with these same outcomes in White v. Johnson, 180 F.3d 648 and fully explained how

^7

the failure to advise a Criminal Defendant of the right to appeal is a constitutional violation of due

process. Appellant brought all of this to the Courts attention in hopes that the Court would follow

Criminal rule 52(B), the "plain error doctrine" that is contained within the Ohio statutory guidelines.

Yet, once again, the Court failed Appellant in this area.

Criminal Rule 52(B) offers protection of issues that were not directly raised to the Court and

allows the Court to recognize the issue. Under Criminal Rule 52(B), "plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the court." Plain

error exists where there is an obvious deviation from a legal rule (the right to appeal under Criminal

rule 32(B) as in this case) that affected the outcome of the proceeding or the Defendant's substantial

rights. See State v. Underwood, 2010 Ohio 1. The Ohio Supreme Court has further held that "any

attempt by a trial court to disregard a statutory requirement when imposing a sentence renders the

attempted sentence a nullity or void." See State v. Beasley, 471 N.E.2d 774.

All of this was presented to the Lower Court to no avail. The Higher State Court as well as the

Circuit Federal Court has clearly laid out what the trial Court and the Reviewing Court was to do but

they completely disregarded these holdings and simply just denied Appellant of his constitutional

rights. Under the plain error standard, the outcome clearly would have been different had the Court of

Counsel advised Appellant of his right to appeal. Appellant would have appealed this case if given the

knowledge of that right. Clearly Appellant has shown that his substantial rights were violated and had

they not been violated, the outcome would have been different but not for the failure of the Court and

Counsel. Therefore, Appellant has demonstrated a need for relief in this case in order to protect his

right to due process and his right to equal protection of the law.

CONCLUSION:

Appellant has clearly shown by the record that his rights to due pyocess and his right to equal

protection of the law were clearly violated by the Trial Court and Counsel. By failing to allow the

Sentencing Judge to use nonfactual and unsupported reasons to sentence Appellant to the maximum

^

term allowed by law, this should be enough to allow Appellant a remand for a new sentencing hearing.

Then, add the fact that Appellant was never advised of any right to appeal, this failure to advise left

Appellant without his constitutional right to appeal, further denying him of his constitutional rights.

Because of the errors committed by the Trial Court and the Eighth District Court of Appeals,

Appellant therefore prays that this Honorable Court will accept jurisdiction and will review the merits

of this case and will allow for Appellant the relief sought, a remand to the Trial Court in order to be re-

sentenced according to law in the State of Ohio.

Respectfully ^Submitted,

6 2 2MCIP.O. Box 57Marion, Ohio 43301

CERTIFICATE OF SERVICE

I hereby swear that a true and exact copy of the foregoing was sent to the Cuyahoga County

Prosecutor's Office this ^L day of )bccc:.rn Z.,E-k- 201

Defendant-Appellant,."- e

Court of 1ppaI'5 of 000EIGHTH APPELLATE DISTRICT

COUNTY OF CIIYAHOGA

JOURNAL ENTRY AND IfPINIONNo. 101142

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

LUCIEN RAY

D EFENDAN'I'-APP ELLANT

JUD1JI LT1EN 1 s

AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-11b553541-A

BEFORE: Boyle, A.J., S. Gallagher, J., and Stewart, J.

OCT 2 3 2014

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RELEASED AND JOURNALIZED: October 23, 2014

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FOR APPELLANT

Lucien Ray, pro seInmate No. 622-365Marion Correctional InstitutionP.O. Box 57Marion, Ohio 43301

ATTORNEYS FOR APPELLEE

Timothy J. McGintyCuyahoga County ProsecutorBY. Adam M. ChaloupkaAssi.stant County ProsecutorJustice Center, 9th Floor1200 Ontario StreetCleveland, Ohio 44113

F,^EE) AND JOURNALiZEDPER APP,R, 22(C)

OC T 2 S 2014

v"tlYA NTY CLERKOF T i} , "r APPEALSBy Deputy

MARY J. BOYLE, A.J.:

{^j 1} Deferzdant-appellant, Lucien Ray, appeals from the trial court's

decision denying his motion to correct his sentence. Finding no nierit to the

appeal, we affirm.

Procedural History and Facts

{^ 2} In Noveinber 2011, Ray pleaded guilty to an ainended indictment of

aggravated vehicular assault, a second-degree felony in violation of R.C.

2903.08(A)(1)(a), and driving while under the influence, a first-degree

misdemeanor in violation of R.C. 451I.19(A)(1)(g). One month later, the trial

court senteneeci. Ray to eight years in prison on the aggravated vehicular assault

count and six months on the driving while under the influei3ce count, ordering

that the terms be run concurrently.

{T3; Ray never filed a timely direct appeal of his conviction and sentence.

In October 2013, Ray filed a motion to file a delayed appeal that was denied by

this court.

{^4} On February 20, 2014, Ray filed a°`motion to correct sentence,"

arguing that the "trial court erred by considering the necessary factors set forth

in Ohio Revised Code 2929.11 and 2929.12." In his motion, Ray argued that the

trial court considered inaccurate and irrelevant information in imposing a

maximum sentence of eight years. Specifically, Ray contended that the

presentence investigation report indicated that he was sentenced to eight years

in prison in an underlying case, which the trial judge mentioned at sentencing,

but that he actually only served two years in that case,

f^5; The state opposed Ray's motion, arguing that the trial court lacked

jurisdiction to alter a final judgment and that Ray failed to point to any

statutory basis to modify or vacate the sentence. The state further argued that

Ray's motion had no merit as evidenced by the sentencing transcript.

{T6} The trial court subsequently denied Ray's motion. From that order,

Ray appeals, raising the following single assignment of error: "Trial court erred

by not considering the necessary factors set forth in Ohio Revised Code 2929.11

and 2929.12."

Final Judgment and Res Jud°zcata

{^,71 Ray challenges liis sentence on the grounds that the trial court failed

to consider and properly apply R.C. 2929.11 and 2929.12 when it imposed the

sentence. This is the sazne argument that Ray relied on in his underlying

motion to correct his sentence. The state counters, however, that the trial court

properly denied Ray's motion because the trial court lacked authority to alter the

sentence based on the grounds set forth in Ray's moti.on. The state further

argues that Ray's xnotion is barred by res judicata. We agree.

{T8} The Ohio Supreme Court has repeatedly recognized that "`trial

courts lack authority to reconsider their own valid final. judgments in criminal

cases.»' State u. Raber, 134 Ohio St.3d 350, 20I2-Ohio-5636, 982 N.E.2d 684,

¶ 20, citing State ex rel. White v, Junkin, 80 Ohio St.3d 335, 338, 686 N.E.2d 267

(1997). Indeed, "absent statutory authority, a trial court is generally not

empowered to modify a crizninal sentence by reconsidering its own final

judgn-ient." State v. Carlisle, 131 Ohio St.3d 127, 20I1-Ohio-0553, 961 N.E.2d

671, ¶ 1; And although trial courts retain continuing jurisdiction to correct a

void sentence and to correct a clerical error in a judgment, neither of these

exceptions apply in this case. See Raber at ¶ 20. Accordingly, because the trial

court lacked the authority to modify Ray's sentence based on the grounds

asserted in his motion, the trial court properly denied it. See St,ate, u. Petitto, 8th

I?ist. Cuyalioga No. 99893, 2013-Ohio-5435 (trial court lacked authority to

modify defendant's sentence from consecutive sentences to concurrent sentences

pursuant to defendant's motion after the trial court issued its final order).

IT9} Moreover, the record reveals that Ray never filed a direct appeal

from the trial court's final order. Consequently, Ray's challenge of his sentence

is barred by the doctrine of res judicata.

{¶1.0} Under the doctrine of res judicata,

a final judgment of conviction bars a convicted defendant who wasrepresented by counsel from raising and litigating in any proceeding

except an appeal from that judgment, any defense or any claimedlack of due process that "was raised or could have been raised" bythe defendant at trial, which resulted in that judgment ofconviction, or on an appeal from that judgment.

State u. Ja.lloh, 10th Dist. Franklin No. 13AP-411, 2014-Ohio-2730, ¶ 7, quoting

State u. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1367). "`Although res judicata

does not preclude review of a void sentence, the doctrine 'still applies to other

aspects of the merits of a conviction, including the determination of guilt and the

lawful elements of the ensuing sentence."' Jalloh at ,( 7, quoting State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, 942 N,E.2d 332, paragraph three of the

syllabus. Because Ray is not challenging his sentencing as being void, nor is

there any evidence that his sentence is void, the doctrine of res judicata applies

in this case. See Petitto (applying res judicata to defendant's attack of sentence

when defendant failed to raise the argument in a timely direct appeal).

{Ti 1I} In this case, Ray failed to file a timely direct appeal after the trial

court issued its final order of conviction and sentence on December 19, 2011.

Ray's present claim that the trial court failed to properly consider R.C. 2929.11

and 2929.12 could have and should have been raised in a timely filed appeal

from the December 19, 2011 judgment. Consequently, the claim is now barred

by the doctrine of res judicata;

{T12} We are further not persuaded by Ray's claim that res judzcata

should not apply because the trial court never informed him of his right to

appeal. Ray has never r•aised this argument in the trial court below, and

therefore has not preserved the issue for appellate review. See State u. Petlz.oUic,

8th Dist. Cuyahoga No. 97548, 2012-0hio-4050, 154.

R.C. 2929.11 and 2929.12

{¶ 13} Even if we did not apply the doctrine of res judicata to Ray's claim,

his argument still has no znerit.

IT14} The trial court has the full discretion to impose any term of

imprisonrnent within the statutory range, but it must consider the sentencing

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. State U.

Holmes, 8th Dist. Cuyahoga No. 99783, 2014-Ohio-603, 41 S.

M151 The sentencing transcript attached to his motion to correct his

sentence reveals that the trial court clearly considered R.C. 2929. 17 and 2929.12

prior to imposing his sentence. Indeed, although not required, the trial court set

forth or the record its detailed consideration and application of the statutes.

Specifically, the trial court stated the foll.owing:

The overriding purposes and principles•of felony sentencingas set forth in 2929.11 of the Revised Code is to protect the public

from future crirries by you, to punish you and to do so with the leastgovernmental resources. The court is required to consider thefactors set forth. in 2929.12 of the Revised Code as it relates torecidivism, meaning the likelihood of you re-offending and also theseriousness of your conduct.

With respect to whether you were likely or unlikely to re-offend, this court finds that the 2929.12 factors governing recidivisin

weigh in favor of you being a risk, a high risk of re-offending, as theOhio risk assessment score that was done is part of the presentencereport.

Your record goes back to 19 - well, your first arrest for drugswas in 1986. You were not charged. I won't consider somethingthat is not a conviction. The same thing in 1989, possession ofcocaine. You were released without being formally charged. In1990, you're arrested for drug abuse. You were convicted. You weresent to Lorain Correctional after having violated probation. Thatwas in case number 250953.

In case 252642, again a drug abuse case, you were placed onprobation. You violated. You picked izp case number 263581, thatbeing a drug traffickirzg case, and you were sentenced to prison.Then in another drug abuse case, 256993, you were placed onprobation.

These cases were - we're now going to the `30s. Drugtrafficking, 1998, 368082, you entered a guilty plea to a felony of the2nd degree. You were sent to prison for 8 years. I don't know thedisposition of the 1998 domestic violence. In 2003, in case number446034, you were charged with drug trafficking. That case wasdismissed over the objection of the state of Ohio and you weredischarged.

In 2006, you were convicted of conspiracy to possess with theintent to distribute cocaine and marijuana. This would have been

the federal case for which you are currently on federal supervisedrelease. On. September 25, 2010, you were charged with .DUI. Itwas amended to physical control. Convicted. Then you pick up thiscase.

The statutory sentencing factors that indicate, pursuant to2929.12, a likelihood of you re-offending include your record ofconvictions, your record of probation violations and the fact that youwere on supervised release at the time of comanitting this offense.Also, there's a clear pattern of drug and alcohol abuse which youhave not acknowledged.

As a matter of fact, to the contrary, you've said you haven't -including this presentence report, you said you haven't had a drinkin 21 years, despite the facts in this case. Statutorily, that rendersyou more likely to re-offend. You've expressed remorse today. I willnote that you didn't when you were interviewed by the f'robati.on.Department.

With respect to factors, pursuant to 2929.12, that wouldindicate an unlikelihood of you re-offending, if an offender showsremorse for an offense and it is genuine, that may mitigate in favorof recidivism being unlikely. That's the only thing that I can note,statutorily speaking. I do find - and I make this finding on the

record - that the recidivism factors set forth by statute clearlyindicate that you are a high risk of re-offending.

Moving on to the seriousness factors, as set forth in 2929.12,as well, this court makes the finding that indeed this conduct wasas serious as it gets. I believe that the state is correct: This doesrepresent the worst form of the offense. Thank God that Ms. Reillyis here to talk about her injuries. Because in this type of impact,certainly she could have been killed because of your conduct. Youshould not have been behind the wheel of a car.

This court finds that anything other than the maximuzn termof incarceration would deinean the seriousness of the offense. Ibelieve statutorily that there is a clear finding that the recidivismand seriousness factors way in favor of yoi.a being highly likely to re-offend and that this conduct is as serious as it gets in this type of anoffense.

{¶16} As for Ray's claim that the trial court erroneously stated that he

was sentenced to eight years in prison on a previous separate case (Cuyahoga

C.P. No. CR-98-368082), we note that the trial court was simply referencing

what the presentence investigation report stated. Although Ray's eight-year

sentence in Cuyahoga C.P. No. CR-98-368092 was vacated and modified to two

years, the record does not support Ray's clai zn that the trial court based his

underlying sentence in this case on the fact that he served eight years in the

other case. To the contrary, the trial court focused on Ray's entire lengthy

criminal history and his pattern of re-offending as evidenced by his numerous

criminal cases. Accordingly, we find no merit to Ray's claim that the trial court

failed to consider the necessary factors prior to sentencing.

{^1 17} Ray's single assignment of error has no merit.

{¶18} Judgment affirmed.

It is ordered that appellee recover fro.m appellant the costs herein taxed.

The court finds there were reasonable groui-icis for this appseail

lt is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgMent into execution.

A certified copy of this entr^fshatl coristitute the mandate pursuant to

Rule 27 of the Ruleseof/Am3e1lati Procedure.

iyiAn j. BuYA-"1v111^1S'l1RArl'IVEffDGE

SEAN C. GALLAGHER, J., andMELODY J. STEWART, J., CONCUR

CC 97 1 2783

Tbe ^tate of ^^^b, ss, 1, ANDR.EA F, ROCCO, Clerk of the Court ofCuyahoga County.

Appeals witlrin and for said County and in Nvhose custody the files, .Iournals and records of said Court are

required by the laws of the State of Ohio, to be, kept, hereby certify that th,e #'ore-oinc, zs taken and copied

frbm the ,Tokrn.al entry dated on 10i23/2014 CA 101142

of the proceedings of the Court of Appeals ^vithin and for said Ctiyahoga County, and that the said foregoing

copy has been compared by me with the origztaal entry on said loumal erztry dated on 10/23/2014

CA 101142 and th^t the same is correct trariscaipt tliereof.

33rt Ze5Yitttottp V^erectt, I do hereunto subscribe my name officially,

and affix the seat of said court, at the Court Hol.se in the City of

Cleveland, in said County, this 23rd

day of October ^ A.D. 20 14

ANDREA e^ ^ ClOrk of Courts

By Deputy Clerk

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