STATE OF OHIO, Plaintiff-Appellee, v. RONALD E. BLANTON, Defendant-Appellant.
Case No. 11CA26
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
RELEASED 12/05/12
[Cite as State v. Blanton, 2012-Ohio-6082.]
DECISION AND JUDGMENT ENTRY
George L. Davis, IV, George L. Davis, III Co., L.L.C., Portsmouth, Ohio, for appellant.
J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Robert C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
Harsha, J.
{¶1} Ronald Blanton appeals his sentences for tampering with evidence and theft in office. Initially, he argues that the trial court erred by ordering him to pay the costs of prosecution without advising him at sentencing that he may be required to perform community service if he fails to pay these costs. Because the trial court never addressed the issue of court costs at sentencing or the possibility of community service, but ordered Blanton to pay the costs of prosecution in its judgment entry, his sentеnce is clearly and convincingly contrary to law. Therefore, we reverse this portion of his sentence.
{¶2} Blanton also contends that the sentence for his felony theft in office conviction is clearly and convincingly contrary to law beсause the trial court sentenced him to community control sanctions without first considering a presentence investigation
{¶3} Finally, Blanton argues that the trial court abused its discretion by sentencing him to three years imprisonment for his tampering with evidence conviction because similar defendants were not sentenced to imprisonment for similar convictions. However, as Blanton‘s trial attorney acknowledged at sentеncing, his case differed from those cases and thus, we cannot say the court‘s sentence was inconsistent or that it abused its discretion. Accordingly, we affirm his sentence for tampering with evidence.
I. FACTS
{¶4} Ronald Blanton, a former police officer, wаs charged with tampering with evidence, a third-degree felony, and theft in office, a fifth-degree felony. The state alleged that Blanton and another police officer stopped a woman for speeding. Blanton allowed her to pay hеr ticket in cash on the side of the road and then he and the other officer kept the money. She contacted the police department because Blanton refused to give her a receipt or copy of the citation. After hе learned there was an investigation into the incident, Blanton replaced the money he took.
{¶5} Blanton pleaded “no contest” with a stipulation that the state had produced sufficient facts to establish guilt on both charges. The trial court sentenced Blanton to three years incarceration for his tampering with evidence conviction and four years of community control for his theft in office conviction. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶7} 1. “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING SENTENCE.”
III. LAW AND ANALYSIS
{¶8} “[A]ppellate courts must apply a two-steр approach when reviewing felony sentences. First, [we] must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 26.
A. Clearly and Convincing Contrary to Law
1. Court Costs
{¶9} In all criminal cases the trial court must consider
{¶10} Blanton first argues that his sentence is clearly and convincingly contrary to law because the trial court ordered him to pay the costs of prosecution without advising him at sentencing that he may be required to perform community service if he fails to pay these сosts.
{¶11}
{¶12} Our review of the record shows that the trial court informed Blanton it wоuld not be imposing any fines as part of his sentence. However, it never addressed the issue of court costs at sentencing. Nonetheless, in its judgment entry the trial court ordered that Blanton “pay all the costs of this prosecution for which execution is hеreby awarded.” Therefore, we agree the portion of Blanton‘s sentence ordering him to pay the costs of prosecution is clearly and convincingly contrary to law.
2. Presentence Investigation Report
{¶13} Next Blanton argues that his sentence is clearly and convincingly contrary to law because the trial court did not consider a presentence investigation report before sentencing him to four years of community control for this theft in office conviction, a fifth-degree felony.
{¶14}
{¶15} We can find no mention of a presentence investigation report in the record nor is there any indication that the trial court ever ordered one. The report was never discussed at sentencing and likewise, in its judgment entry the court states only that it
3. Tampering With Evidence
{¶16} Regarding his tampering with evidence conviction, Blanton argues that his three year sentence is clearly and convincingly contrary to law and the trial court abused its discretion beсause similar defendants were sentenced to lesser sentences for the same crime.
{¶17} Blanton was convicted of tampering with evidence, in violation of
B. Abuse of Discretion
{¶19}
{¶20} We have held that “‘[a]n offendеr cannot demonstrate inconsistency merely by supplying a list of cases where other defendants in other cases received prison sentences that differed from his.‘” Bailey at ¶ 39, quoting Ward at ¶ 16. “‘Each defendant is different and nothing prohibits a trial court from imposing two different sentences upon individuals convicted of similar crimes.‘” Bailey at ¶ 39, quoting State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909, ¶ 50. We bear in mind that “‘[e]ach case
{¶21} Here, although Blanton acknowledges that “a defendant must do more than show lesser sentenсes for similar offenses to show inconsistency in sentencing,” the only argument he puts forth is that the trial court “turned a blind eye to at least six similar matters * * * in which disgraced police officers were not incarcerated whatsoever, much less for a maximum tеrm of imprisonment.” He points to nothing that indicates the trial court failed to properly apply the sentencing factors and guidelines contained in
{¶22} Blanton also points out that although he was indictеd and only pleaded no contest to one count of tampering with evidence, at the sentencing hearing the court stated: “In this case there are two counts on the charge of tampering with evidence a felony of the third degree * * *.” Howеver, our review of the record shows that when pronouncing Blanton‘s sentence it only addressed one count. Likewise, in its judgment
IV. CONCLUSION
{¶23} In summary, we uphold Blanton‘s sentence for his tampering with evidence conviction. The trial court‘s imposition of court costs and Blanton‘s sentencе for his theft in office conviction are clearly and convincingly contrary to law. Accordingly, we reverse these portions of his sentence and remand for resentencing.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall sрlit the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeаl period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified cоpy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. & Kline, J.: Concurs in Judgment and Opinion.
For the Court
BY: William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.