State v. BrodyState v. Brody
O P I N I O N
Criminal Appeals from the Court of Common Pleas, Case Nos. 10 CR 000026, 10 CR 000029, and 10 CR 000366.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Amy Marie Freeman, 7281 Taft Street, Mentor, OH 44060 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, David E. Brody, appeals his sentence following his guilty plea in the Lake County Court of Common Pleas to multiple counts of burglary, breaking and entering, grand theft, receiving stolen property, misuse of credit cards, and vandalism in three separate cases. At issue is whether the trial court was required to make findings of fact in support of its consecutive sentences. For the reasons that follow, we affirm.
{¶2} Appellant was indicted or charged by way of information in three separate cases. In case No. 10 CR 000026, he was charged in an 11-count indictment with two
{¶3} In case No. 10 CR 000029, appellant was charged in a 17-count indictment with grand theft of a motor vehicle, five counts of vandalism, four counts of breaking and entering, three counts of receiving stolen property, three counts of possession of criminal tools, and carrying a concealed weapon.
{¶4} Finally, in case No. 10 CR 000366, appellant was charged by way of information with one count of burglary.
{¶5} Appellant entered a plea bargain with the state pursuant to which, on June 23, 2010, he entered a guilty plea in each of these cases. In case No. 10 CR 000026, appellant pled guilty to misuse of credit cards, in violation of
{¶6} In case No. 10 CR 000029, appellant pled guilty to breaking and entering, in violation of
{¶7} Finally, in case No. 10 CR 000366, appellant pled guilty to burglary, in violation of
{¶8} Thereafter, the prosecutor outlined the factual basis for appellant‘s guilty pleas. In case No. 10 CR 000026, with respect to the misuse of credit cards charge, on October 12, 2003, appellant obtained various items of merchandise from Lowe‘s in Mentor, Ohio, in the amount of $1,109.26 by unlawfully using his former employer‘s credit card. As to the grand theft and burglary charges with a firearm specification, on October 29, 2004, appellant broke into the home of a police officer. After breaking into the officer‘s home, appellant stole the officer‘s 9 mm handgun. The prosecutor noted that appellant left a note for the officer saying, “see what‘ll happen to you the next time when you give me a ticket.”
{¶9} In case No. 10 CR 000029, as to the grand theft and vandalism charges, on December 4, 2009, appellant stole a 2002 Geo Tracker owned by Janice Zappola from her residence in Mentor. Later, while driving the Geo, appellant was involved in a collision in which he extensively damaged the vehicle. Appellant returned the vehicle to the driveway of its owner and, in doing so, he kicked up gravel against the neighbor‘s house damaging its siding and windows, with damage estimates of $15,000.
{¶10} As to the receiving stolen property and breaking and entering charges, on December 25, 2009, appellant received a 1997 Honda Civic in Mentor owned by Bill Pearson and Ellen Strossure. Appellant later admitted he had reason to believe the car was stolen. That night appellant also threw a rock through a glass door at Pavo‘s Shoe Repair. He entered the store and stole various items, including $17 in cash.
{¶11} Finally, in case No. 10 CR 000366, on December 21, 2009, appellant broke into three homes in Mentor and stole various items from each. In one home he stole coins and stamps. In another he stole a television, laptop computer, and digital camera. In the third, he stole a CD stereo and speakers.
{¶12} The court found appellant‘s guilty pleas were knowing, intelligent, and voluntary; accepted the guilty pleas; and found appellant guilty. Specifically, in case No. 10 CR 000026, the court found appellant guilty of misuse of credit cards, burglary with a firearm specification, and grand theft of a firearm. In case No. 10 CR 000029, the trial court found appellant guilty of grand theft of a motor vehicle, vandalism, receiving stolen property involving another motor vehicle, and breaking and entering. Finally, in case No. 10 CR 000366, the trial court found appellant guilty of burglary.
{¶13} Pursuant to the plea bargain, in exchange for appellant‘s guilty pleas, the trial court dismissed the remaining counts in the indictments.
{¶14} Appellant is 39 years old and has had four years of college. He admitted he had previously been in prison twice, once in Ohio for burglary and once in Tennessee for burglary. In addition, at the time of the sentencing hearing, it was undisputed there was an outstanding warrant from Tennessee for appellant on a pending case in that state.
{¶15} On July 29, 2010, the matter proceeded to sentencing. Appellant apologized to the victims of his crimes. He told the court that he allowed his drug addiction to cause him to do terrible things and that he regretted the choices he had made. In light of appellant‘s extensive criminal history, the trial court questioned the genuineness of appellant‘s expression of remorse.
{¶16} The court then recounted appellant‘s extensive criminal record. In 1993, he was convicted of attempted carrying concealed weapons in the Franklin County Municipal Court in Columbus, Ohio. In 1997, he was convicted of seven counts of burglary in Lake County. He was placed on four years probation on condition that he serve six months in jail, complete a jail treatment program, complete a six-month in-patient treatment program at Oriana House in Akron, Ohio, attend three AA meetings a week, and obtain a sponsor. Appellant stayed at Oriana House for 41 days, then went to get a haircut, and never returned to complete the program. In 1998, appellant violated his probation. His probation was terminated, and he was sentenced on the probation violation to five years in prison. In 2003, appellant completed an intensive outpatient program at the Lake/Geauga Recovery Center in Mentor. In February 2004, appellant failed to appear for a contempt-of-court proceeding in the Willoughby Municipal Court.
{¶17} Thereafter, appellant went to Tennessee, where, in March 2007, he was convicted in five separate cases. In the first case, he was convicted of three counts of aggravated burglary and three counts of felony theft. In the second case, appellant was convicted of aggravated burglary and three counts of forgery of a credit card. In the third case, appellant was convicted of aggravated burglary and felony theft. In the fourth case, appellant was convicted of five counts of burglary, five counts of theft, attempted burglary, vandalism, and possession of criminal tools. In the fifth case, he was convicted of aggravated burglary, felony theft, and aggravated assault. For these crimes, appellant was sentenced to six years in prison in Tennessee. Five months later, in August 2007, appellant was convicted of breaking and entering in North Carolina.
{¶18} The trial court stated that it considered the purposes of felony sentencing pursuant to
{¶19} The court sentenced appellant in case No. 10 CR 000026 to 11 months for misuse of credit cards; seven years for burglary, to be served consecutively to the one-year term of imprisonment on the related firearm specification; and two years for grand theft of the police officer‘s 9 mm handgun. The prison terms for misuse of credit cards and grand theft of the firearm were to be served concurrently with one another, but consecutively to the term for burglary with the firearm specification, for a total of ten years in prison.
{¶20} In case No. 10 CR 000029, the court sentenced appellant to 12 months for grand theft of a motor vehicle (the 2002 Geo Tracker), 12 months for vandalism, 12 months for receiving stolen property (the 1997 Honda Civic), and 12 months for breaking and entering, each sentence to be served concurrently with each other, for a total of 12 months in prison.
{¶21} In case No. 10 CR 000366, the trial court sentenced appellant to seven years for burglary.
{¶22} The sentences in each of the three cases were to be served consecutively to one another, for a total of 18 years in prison.
{¶23} Appellant appeals the trial court‘s sentence. Appellant‘s three cases were consolidated in this court. Appellant asserts the following for his sole assignment of error:
{¶24} “The trial court erred by sentencing the defendant-appellant to an eighteen-year prison term.”
{¶25} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio held that because
{¶26} The court in Foster also held that
{¶27} The court in Foster held that
{¶28} Subsequently, in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Supreme Court of Ohio established a two-step analysis for an appellate court reviewing a felony sentence. In the first step, we consider whether the trial court “adhered to all applicable rules and statutes in imposing the sentence.” Id. at 25. “As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in
{¶29} As the Ninth Appellate District recently observed:
{¶30} ”Kalish did not specifically provide guidance as to the ‘laws and rules’ an appellate court must consider to ensure the sentence clearly and convincingly conforms with Ohio law. The specific mandate of Kalish is that the sentence fall within the statutory range for the felony of which a defendant is convicted. Id. at ¶15.” State v. Gooden, 9th Dist. No. 24896, 2010-Ohio-1961, at ¶48.
{¶31} Next, if the first step is satisfied, we consider whether, in selecting the actual term of imprisonment within the permissible statutory range, the trial court
{¶32} Appellant argues the sentencing scheme regarding consecutive sentencing severed by the Supreme Court of Ohio in Foster, supra, has been revived by the United States Supreme Court in Oregon v. Ice (2009), 555 U.S. 160. He therefore argues the trial court should have stated its reasons under
{¶33} In Ice, supra, the Supreme Court held that the right to jury trial under the Sixth Amendment to the United States Constitution does not preclude states from requiring trial court judges to engage in judicial fact-finding prior to imposing consecutive sentences. Id. at 171-172.
{¶34} Thereafter, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, paragraph one of the syllabus, the Supreme Court of Ohio adopted the foregoing ruling of the United States Supreme Court in Ice, supra. However, the court in Hodge, paragraph two of the syllabus, held that Ice does not revive Ohio‘s former consecutive-sentencing statutes. As a result, the court in Hodge held that trial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new legislation requiring that such findings be made. Id., paragraph three of the syllabus.
{¶35} Consequently, despite this court‘s contrary holding in State v. Jordan, 11th Dist. No. 2009-T-0110, 2010-Ohio-5183, pursuant to Hodge, supra, the trial court was not required to make findings of fact pursuant to
{¶36} Turning to the facts of the instant case and addressing the first step of the Kalish test, appellant pled guilty to two counts of burglary, which are felonies of the second degree. He was therefore subject to a prison term for each of these two offenses of two, three, four, five, six, seven, or eight years.
{¶37} Moreover, the trial court expressly stated on the record and in the court‘s sentencing entries that it had considered the purposes of sentencing under
{¶38} Because the sentences imposed were within the statutory range of sentences for appellant‘s crimes and the court considered the purposes and factors of felony sentencing, appellant‘s sentence complied with all applicable statutes and therefore was not clearly and convincingly contrary to law. His sentence therefore complied with the first step of the Kalish test.
{¶39} We turn now to the second step of the Kalish test, i.e., whether the sentence selected by the trial court was an abuse of discretion. Appellant asserts several arguments to support his position that the trial court abused its discretion in sentencing him to 18 years in prison. First, he argues that because the trial court specifically discussed appellant‘s extensive criminal record, which appellant concedes is a pertinent recidivism factor, this shows the trial court failed to carefully consider the other seriousness and recidivism factors. Appellant cites no authority in support of this argument, and for this reason alone, it lacks merit.
{¶40} Further, in State v. Greitzer, 11th Dist. No. 2006-P-0090, 2007-Ohio-6721, this court held that a trial court‘s failure to state on the record that it considered the factors in
{¶41} As noted above, however, the court also expressly considered other seriousness and recidivism factors. For example, at the sentencing hearing, the court questioned whether appellant‘s stated remorse was genuine. Further, it was brought to the trial court‘s attention at sentencing that appellant had not responded favorably to sanctions, including drug programs, previously imposed by other sentencing judges on appellant for his prior criminal convictions. When the trial court asked appellant why he cannot stay out of people‘s homes, appellant said, “I have no answer for that.” We therefore do not agree with appellant‘s argument that the court failed to carefully consider the remaining seriousness and recidivism factors under
{¶42} Next, appellant argues that his sentence was not consistent as required by
{¶43} As a preliminary matter, this court has repeatedly held that consistency in sentencing is accomplished by the trial court‘s application of the statutory sentencing guidelines. See, e.g., State v. Swiderski, 11th Dist. No. 2004-L-112, 2005-Ohio-6705, at ¶58. Thus, in order to show a sentence is inconsistent, a defendant must show the trial court failed to properly consider the statutory purposes and factors of felony sentencing. Because appellant failed to make such showing, his sentence was proportionate and consistent.
{¶44} We note there is no evidence in the record to support appellant‘s comment that he has been sentenced to 13 years in prison in Tennessee. In fact, the document referenced by appellant in support of his alleged Tennessee sentence, his pre-sentence report, does not support this argument. The report merely notes that Tennessee has a hold out for appellant. There is nothing before us to demonstrate he has been sentenced in Tennessee, let alone that such sentence would be served consecutively to the sentence imposed by the trial court. We do note that the trial court did not order its sentence to be served consecutively to any Tennessee sentence. In any event, even if a Tennessee court had sentenced appellant to 13 years and such sentence was to be imposed consecutively, that does not imply that such sentence, when combined with appellant‘s Ohio sentence, would amount to life in prison. We rejected a similar argument in State v. O‘Neil, 11th Dist No. 2010-P-0041, 2011-Ohio-2202, at ¶29.
{¶45} Further, we reject appellant‘s contention that he should have been given a lighter sentence because his crimes were merely crimes against property and no one was harmed. His offenses included burglary, burglary with a firearm specification, grand theft of a motor vehicle, grand theft of a police officer‘s firearm, receiving stolen
{¶46} We further reject appellant‘s argument that “[b]y denying [appellant] any hope for return to society as a rehabilitated individual, he has been denied due process.” First, appellant has, once again, failed to reference any pertinent authority in support of this argument, in violation of
{¶47} Finally, appellant argues his sentence must be overturned because the trial court‘s findings under
{¶48} The trial court‘s sentence was therefore not contrary to reason or the record and so did not constitute an abuse of discretion.
{¶49} For the reasons stated in the opinion of this court, appellant‘s assignment of error is overruled. It is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
THOMAS R. WRIGHT, J.,
concur.