STATE OF OHIO v. TIMOTHY E. BRADLEY
Appellate Case No. 2017-CA-64
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
August 10, 2018
2018-Ohio-3192
HALL, J.
Triаl Court Case No. 17-CR-459; (Criminal Appeal from Common Pleas Court)
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, 55 Greene Street, 1st Floor, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215 Attorney for Defendant-Appellant
OPINION
HALL, J.
{¶ 2} Bradlеy advances two assignments of error related to the 30-month prison sentence he received. First, he contends the trial court violated the purposes of felony sentenсing. Specifically, he asserts that the trial court “erred in finding the appellant‘s juvenile record being more significant than his adult record in [its] analysis of protecting society[.]” Second, he claims the trial did not properly apply the statutory “seriousness” and “recidivism” factors. He argues that the trial court “erred in finding the appellant‘s crime to be serious and аppellant is likely to repeat the behavior if appellant is not incarcerated.”
{¶ 3} The record reflects that Bradley was charged with felonious assault and fourth-degrеe-felony domestic violence for punching his girlfriend in the face and knocking out her tooth in the presence of their seven-year-old son. He pled guilty to the domestic violence charge and to a reduced charge of attempted felonious assault. At sentencing, the trial court recognized the existence of allied offenses. The Statе elected to proceed on the attempted felonious assault charge, and the trial court sentenced Bradley to 30 months in prison. Prior to imposing the sentence, the trial court noted that it had considered the record, oral statements by the parties, a victim-impact statement,1 and a
{¶ 4} In his assignments of error, Bradley challenges the trial court‘s evaluation and weighing of the principles and purposes of sentencing and the seriousness and recidivism factors. He asserts that the trial court improperly placed unduе emphasis on his more extensive juvenile record as opposed to his adult criminal record. He reasons that, prior to the present offense, he had not committed a violent crime for 13 years and that most of his prior adult crimes were relatively “insignificant.” Bradley also conducts his own analysis of the statutory seriousness and recidivism factors, concluding that they do not support a 30-month sentence. He claims only one “more serious” factor applies, that he is remorseful, and that he is willing to be rehabilitated. He insists that, based оn the record before it, the trial court abused its discretion by imposing a 30-month prison sentence.
{¶ 5} Under
{¶ 6} Here Bradley‘s 30-month sentence for attempted felonious assault is within the authorized statutory range. In addition, no specific findings were required under
{¶ 7} The disputed issue is whether the record fails to support the 30-month sentence. Where a sentence is not contrary to law, we may modify or vаcate it only if we find by clear and convincing evidence that the record does not support it. Marcum at ¶ 7. The record before us does not clearly and convincingly fail to suppоrt the trial court‘s consideration of the statutory principles and purposes of sentencing or the seriousness and recidivism factors.
{¶ 8} The trial court recognized that Bradley, who was 33 years old, had a prior record as a juvenile and an adult. His juvenile history included adjudications for breaking and entering, felony theft, resisting arrest, multiple DUIs, driving under suspension, and other trаffic and alcohol-related offenses. His adult record included two prior domestic-violence and assault charges which resulted in pleas to disorderly conduct. It also inсluded a prior domestic-violence conviction as well as convictions for resisting arrest, disorderly conduct, and other things. The trial court additionally noted that Bradley already
{¶ 9} Finally, we briefly must address an allied-offense issue that is apparent in the record. As set forth above, the trial court recognized at sentencing that attempted felonious assault and domestic violence were allied offenses, and the State elected to proceed with sentencing on attempted felonious assault. During the sentеncing hearing and in its judgment entry, however, the trial court actually sentenced Bradley to a concurrent term of “zero” months in prison for domestic violence. (Sentencing Tr. at 31; Doс. # 37 at 3). Technically, the trial court should not have imposed any sentence for the allied offense of domestic violence. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 28 (“[W]hen a trial court concludes that an accused has in fact been found guilty of allied offenses of similar import, it cannot impose a separate sentence for each offense. Rather, the court has a mandatory duty to merge the allied offenses by imposing a single sentence, and the imposition of separate sentences for those offenses—even if imposed concurrently—is contrary to law[.]“). Imposing a separate sentence for an acknowledged allied offense renders the sentence void. Id. We need not remand for resentencing here, however, because the State already elected to proceed
{¶ 10} For the reasons set forth above, we overrule Bradley‘s assignments of error. We sua sponte modify the trial court‘s judgment by vacating the concurrent sentence it imposed for domestic violence. Thе conviction and sentence for attempted felonious assault are unaffected by our ruling. See id. at ¶ 33. As so modified, the trial court‘s judgment is affirmed.
TUCKER, J., concurs.
FROELICH, J., concurring:
{¶ 11} I write separately only to emphasize that Bradley‘s “high risk” score on a risk аssessment tool (ORAS) does not factor into my agreement that the record does not clearly and convincingly fail to support his sentence. See, e.g., State v. Lawson, 2018-Ohio-1532, __ N.E.3d __, ¶ 20, 21 (2d Dist.) (Froelich, J., concurring).
Copies mailed to:
Nathaniel R. Luken
Glenda A. Smith
Hon. Michael A. Buckwalter