STATE OF OHIO, Plаintiff-Appellee, - vs - JEFFREY SCOTT ABRAMS, Defendant-Appellant.
CASE NOS. CA2017-03-018, CA2017-03-019
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
11/13/2017
[Cite as State v. Abrams, 2017-Ohio-8536.]
HENDRICKSON, P.J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2016-CR-0282
The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant
OPINION
HENDRICKSON, P.J.
{1} Defendant-appellant, Jeffrey Scott Abrams, appeals from the sentence he received in the Clermont County Court of Common Pleas after he pled guilty to multiple theft offenses. For the reasons set forth below, we affirm his sentence.
{2} On May 19, 2016, appellant was indicted on four counts of theft by deception in violation of
{3} On January 24, 2017, following plea negotiations, appellant pled guilty to one count of theft from an elderly person, two counts of theft of a credit card, and one count of receiving stolen property, all felonies of the fifth degree, as well as three counts of theft, misdemeanors of the first degree, in exchange for the remaining charges being dismissed.1 A sentencing hearing was scheduled for February 28, 2017, and the trial court ordered that a presentence investigation report (“PSI“) be prepared.
{4} At the sentencing hearing, the trial court heard from the state, one of aрpellant‘s victims, defense counsel, and appellant. The state indicated it had reviewed the PSI, which detailed appellant‘s lengthy criminal history involving convictions for disorderly conduct, possession of drugs and drug abuse instruments, possession of cocaine, possession of heroin, and breaking and entering, and it requested that a prison sentence be imposed on
{5} Appellant apologized to his victims and expressed remorse for his actions. He spoke of his heroin addiction and the frustration he felt in being unable to overcome his addiction and self-destructive ways. Defense counsel acknowledged appellant‘s drug addiction had negatively impacted other people in the community, but contended that appellant‘s willingness to take responsibility and be held accountable for his actions should be considered in fashioning an appropriate sentence.
{6} After reviewing the PSI and victim impact statements and considering the information presented at the sentencing hearing, the trial court determined that community control was not an appropriate sanction and that a prison term was warranted. With respect to appellant‘s three misdemeanor convictions for theft by deception, the court imposed 180-day jail sentences on each offense, to be served concurrently to one anothеr and concurrently to the sentences imposed on the felony counts. With respect to the four fifth-degree felony offenses, the court imposed 11-month prison terms on each offense and ordered that the sentences be served consecutively to one another, for an aggregate prison term of 44 months. The court gave appellant jail-time credit for 293 days and ordered him to pay $1,644.92 in restitution to three of his victims.
{7} Appellant timely appealed, raising two assignments of error.
{8} Assignment of Error No. 1:
{9} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY SENTENCING APPELLANT.
{10} In his first assignment of error, appellant argues the trial court erred by
{11} We review the imposed sentence undеr the standard of review set forth in
{12} Appellant contends the “almost maximum” sentence imposed on each fifth-degree felony offense was “contrary to law and to the purposes and principles of sentencing.” He argues that in considering the seriousness and recidivism factors set forth in
{13} A trial court has discretion to impose a prison term on an offender who pleads guilty to a fifth-degree felony that is not an offense of violence if the offender “at the time of the offense was serving, or the offender previously had served, a prison term.”
{14} The purposes of felony sentencing are to protect the public from future crime by the offender and to punish the offender.
{15} After a thorough review of the record, we find no error in the trial court‘s decision to sentence appellant to 11 months in prison for each of his fifth-degree felony offenses. The record plainly reveals that appellant‘s sentence is not clearly and convincingly contrary to law as appellant served a prior prison term, as contemplated by
{16} At the sentencing hearing, the trial court specifically stated:
THE COURT: I‘ve reviewed the presentence investigation report in detail, considered the purposes and principles of sentencing under 2929.11 and -.12. And the purposes and the principles of sentencing аre certainly to punish the offender, to hopefully to [sic] send a message to others to not engage in that same kind of conduct that has brought you here. * * *
I – I would say to some extent your conduct is a little less serious than others in terms of how you react to heroin, because I‘ve had people standing there who are younger than you who are going to prison for many, many years because they broke into houses and totally shattered thе security of the individuals. This does not lessen the impact that it has had on the victims. It‘s essentially the same, I suppose, in a large part. * * *
And this is not – as you‘ve said, you‘ve been battling it for years. [I]n ‘07, you were charged with possession of heroin and cocaine, intervention in lieu of conviction. A treatment program was provided for you at that time, and you were terminated from the treatment program, still placed on community control, still ended up in prison.
Because in ‘09, you went on a spree of offenses, breaking and entering into not houses, but other structures, and were sentenced to prison at that time. So with the history that you have, serious. And you‘ve obviously reoffended even after going to prison. I will say that there are individuals who have heroin
addictions that get into treatment programs and they survive, and they fight it every day, I‘m sure, but they don‘t reoffend. * * * And I can‘t explain to you why you can‘t lick it. I wish I could. [G]iven the nature of the offenses, given your criminal history in this matter, community control is not an appropriate sanction.
{17} Appellant disagrees with the trial court‘s analysis and its balancing of the seriousness and recidivism factors in
{18} Therefore, after reviewing the record, we find no clear and convincing evidence that the court erred in balancing the factors in
Consecutive Sentences
{19} We further find that the trial court‘s decision to run appellant‘s felony sentences
(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 , or2929.18 of the Revised Code , or was under post-release 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.
{20} “In order to impose consecutive terms of imprisonment, a trial cоurt is required to make the findings mandated by
{21} Here, the record reflects that the trial court made the findings required by
I‘ve considered 2929.14(C)(4)(a) through (c) and find that the consecutive structure of this sentence is appropriate. I think a single sentence would demean the seriousness of these charges and the impact and the harm that‘s been caused.
Other victims in the impact – in the presentence report that they have filed have similar reactions and – and similar problems as [the victim that appeared at sentencing] expressed * * * here in court and all of them not only have lost financially, but more importantly emotionally and psychologically they – they continue to have repercussions as a result of your conduct.
Your prior history is serious, and your likelihood of reoffending is, I think, highest. And again, these are multiple victims. I think a single sentence, if you will, for the fеlony offenses clearly would demean the seriousness of these charges.
The court reiterated its findings in the sentencing entry, stating it considered
These consecutive sentences are necessary to protect the public from future crime and punish the defendant.
These consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct which involves multiple theft offenses from multiple victims. Furthеr, the harm caused by these multiple offenses were so great and so unusual that no single prison term adequately reflects the seriousness of the Defendant‘s conduct and a single sentence would demean the seriousness of his conduct.
The Defendant‘s criminal history also warrants consecutive sentences as he has three prior convictions for felony offenses in Ohio and has served a prior prison term as a result of these prior convictions.
Although the language the trial court used in making the consecutive sentence findings was
{22} Here, the trial court did engage in the correct analysis and the record contains evidence supporting the court‘s findings under
Failure to Give Advisements
{23} Appellant also argues that the trial court erred in sentencing him without informing him that, pursuant to
{24} We likewise find the trial court‘s failure to inform appellant of his right to appeal under Crim.R. 32(B) was harmless error, as appellant filed a timely appeal and has not shown any prejudice. See State v. Johnson, 12th Dist. Clermont No. CA2000-11-089, 2001 Ohio App. LEXIS 4726, *12 (Oct. 22, 2001); State v. McCrae, 5th Dist. Muskingum No. CT2017-0008, 2017-Ohio-2968, ¶ 18.
{25} Finally, appellant challenges the trial court‘s order that he pay $1,644.92 in restitution to his victims, arguing that the court failed to consider his present and future ability to pay in accordance with
{26} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Notice of plain error “must be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Baldev, 12th Dist. Butler No. CA2004-05-106, 2005-Ohio-2369, ¶ 12.
{27}
{28} The record contains evidence indicating the trial court considered appellant‘s present and future ability to pay restitution to his victims. Prior to ordering appellant to pay
{29} As the record contains evidence demonstrating the trial court considered appellant‘s present and future ability to pay, appellant‘s argument that the court committed plain error in ordering restitution is without merit.
{30} Accordingly, having found no merit to any of the arguments raised by appellant in his first assignment of error, we hereby overrule the assignment of error.
{31} Assignment of Error No. 2:
{32} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A
{33} In his second assignment of error, appellant argues he received ineffective representation by his trial counsel as counsel “fail[ed] to protect [his] interests in sentencing concerning the notification issue and the restitution issue.”
{34} To prevail on an ineffective assistance of counsel claim, an appellant must establish that (1) his trial counsel‘s performance was dеficient and (2) such deficiency prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel‘s performance will not be deemed deficient unless it “fell below an objective standard of reasonableness.” Id. at 688. To show prejudice, the appellant must prove there exists “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. An appellant‘s failure to satisfy one prong of the Strickland test negates a court‘s need to consider the other. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
{35} Appellant cannot demonstrate he was prejudiced by counsel‘s alleged errors. As discussed in our resolution of appellant‘s first assignment of error, the trial court‘s failure to notify appellant that he is required to submit to random drug testing in prison, cannot ingest or be injected with a drug of abuse while in prison, and is required to submit a DNA sample resulted in harmless error. Appellant cannot show he was prejudiced by counsel‘s failure to object to the court‘s lack of advisements. Moreover, appellant cannot demonstrate that he was prejudiced by his counsel‘s failure to object to the restitution order, as the court considered appellant‘s present and future ability to pay the financial sanction before imposing the sanction.
{36} Accordingly, as appellant cannot establish the prejudice prong of Strickland, we find no merit to his arguments and overrule his second assignment of error.
RINGLAND and PIPER, JJ., concur.
HENDRICKSON, P.J.
PRESIDING JUDGE