STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, VS. LOUIS BURLEY, DEFENDANT-APPELANT.
CASE NO. 16 MA 0076
SEVENTH DISTRICT
Dated: February 1, 2017
[Cite as State v. Burley, 2017-Ohio-378.]
Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro
Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 2015 TRD 163, 2015 TRD 1934
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 2015 TRD 163 2015 TRD 1934
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Kathleen Thompson Assistant Prosecutor 26 South Phelps Street, 4th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Robert Rohrbaugh II Atty. Robert J. Rohrbaugh, II, LLC 3200 Belmont Avenue, Suite 6
Dated: February 1, 2017
ROBB, P.J.
{¶1} Defendant-Appellant Louis Burley appeals the sentencing decision of the Youngstown Municipal Court. He contends the trial court abused its discretion in imposing maximum consecutive sentences after finding he committed multiple probation violations. He claims the court disregarded the misdemeanor sentencing factors. Appellant‘s sole assignment of error is overruled, and the trial court‘s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} In January 2015, Appellant was cited for driving under suspension (“DUS“) in violation of
{¶3} On August 28, 2015, Appellant pled no contest in each case. In 15 TRD 163, Appellant was sentenced to ten days in jail and one year of intensive probation with orders to obey all laws; he was fined $100 plus court costs. In 15 TRD 1934, Appellant was sentenced to one year of intensive probation with orders to obey all laws and fined $100 plus court costs on each count. In both cases, payment was to be made by December 31, 2015 with the opportunity to perform community service in lieu of payment.
{¶4} In March 2016, Appellant was served with notice of probation violations in both cases. The notice charged: failure to report to probation on February 8, February 22, and March 21, 2016; failure to obey all laws due to a February 18, 2016 conviction for a third-degree misdemeanor DUS; and failure to complete community service in lieu of paying financial sanctions. Appellant stipulated to probable cause for the violations, and he later stipulated to a finding of guilt on the probation violations. (Tr. 3-4).
{¶5} At the May 31, 2016 hearing, defense counsel said Appellant paid the financial sanctions in April 2016. Counsel said Appellant needed to pay $2,000 before he could obtain his license. (Tr. 5). Counsel explained Appellant was incapacitated after a car accident that occurred on January 21, 2016; he said he was not driving. (Tr. 4-5). Regarding the failure to report, Appellant added, “I had my dates mixed up.” (Tr. 7). He also said he called the probation department, but he talked to someone other than his probation officer. (Tr. 12). He denied receiving a letter after missing the February report date, noting it was probably sent to his mother‘s house. (Tr. 12).
{¶6} The court found Appellant violated the terms of his probation in three different ways. In 15 TRD 163, the court imposed 20 days in jail. In 15 TRD 1934, the court imposed 180 days for loud music consecutive to 30 days for DUS. Appellant‘s total jail time was 210 days as the sentences in the two cases ran concurrent. (Tr. 14); (May 31, 2016 Sent. J.E.).1 Appellant
MISDEMEANOR SENTENCING STATUTES
{¶7} The two overriding purposes of misdemeanor sentencing are to punish the offender and to protect the public from future crime by the offender and others.
{¶8}
- The nature and circumstances of the offense or offenses;
- Whether the circumstances regarding the offender and the offense or offenses indicate that the offender has a history of persistent criminal activity and that the offender‘s character and condition reveal a substantial risk that the offender will commit another offense;
- Whether the circumstances regarding the offender and the offense or offenses indicate that the offender‘s history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender‘s conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;
- Whether the victim‘s youth, age, disability, or other factor made the victim particularly vulnerable to the offense or made the impact of the offense more serious;
- Whether the offender is likely to commit future crimes in general, in addition to the circumstances described in divisions (B)(1)(b) and (c) of this section;
- Whether the offender has an emotional, mental, or physical condition that is traceable to the offender‘s service in the armed forces of the United States and that was a contributing factor in the offender‘s commission of the offense or offenses;
- The offender‘s military service record.
The court may consider any other relevant factor as well.
{¶9} Before imposing a jail term, the court is to consider the appropriateness of imposing a community control sanction.
{¶10} A jail term for a misdemeanor shall be served consecutively with any other jail term when the trial court specifies it is to be served consecutively.
{¶11} A misdemeanor sentence is reviewed for an abuse of discretion. State v. Nuby, 7th Dist. No. 16 MA 0036, 2016-Ohio-8157, ¶ 10, citing State v. Reynolds, 7th Dist. No. 08-JE-9, 2009-Ohio-935, ¶ 9. See also
ASSIGNMENT OF ERROR
{¶12} Appellant‘s sole assignment of error provides:
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN SENTENCING APPELLANT TO MAXIMUM CONSECUTIVE SENTENCES FOR HIS PROBATION VIOLATION.”
{¶13} Appellant quotes
{¶14} A trial court must consider the criteria of
{¶15} The reviewing court is to presume the trial judge made the required considerations absent an affirmative showing to the contrary. State v. Best, 7th Dist. No. 08 MA 260, 2009-Ohio-6806, ¶ 14; Crable, 7th Dist. No. 04 BE 17 at ¶ 24. See also State v. Jones, 1st Dist. No. C-140241, 2015-Ohio-490, ¶ 20; Nelson, 172 Ohio App.3d 419 at ¶ 14; State v. Ramirez, 3d Dist. No. 13-04-30, 2005-Ohio-1430, ¶ 30. A silent record creates a rebuttable presumption that the sentencing court considered the statutory misdemeanor sentencing criteria. Wallace, 7th Dist. No. 12 MA 180 at ¶ 16; Best, 7th Dist. No. 08 MA 260 at ¶ 14; Crable, 7th Dist. No. 04 BE 17 at ¶ 24-25.
{¶16} “The burden of demonstrating this error falls to the appellant.” State v. Endress, 9th Dist. No. 08CA0011-M, 2008-Ohio-4498, ¶ 4. Here, the sentencing entry does not affirmatively show the court failed to consider the statutory factors. “[T]he mere failure to evince consideration of the misdemeanor sentencing factors in the sentencing entry is not a legal error.” Nuby, 7th Dist. No. 16 MA 0036 at ¶ 17.
{¶17} “[I]n some cases the defendant may be able to utilize the court‘s statements at sentencing to rebut the presumption that the court considered the sentencing factors.” Nuby, 7th Dist. No. 16 MA 0036 at ¶ 16. Appellant‘s argument the court disregarded the sentencing factors can be overruled if “[t]here is nothing in the transcript of the sentencing hearing or the sentencing entry that affirmatively shows that the trial court did not consider the appropriate factors in
{¶18} In support of his claim that the trial court did not consider the statutory factors and was instead motivated by a factor other than those listed, Appellant points to statements made by the trial court at sentencing, such as: “I don‘t play“; “You got to do what you got to do or you get to go to jail“; and “If you decide you want to play with me okay. You decide you want to take me on, okay. Now, you get to suffer the consequences for having done that.” (Tr. 13). Appellant states this shows an unreasonable, arbitrary, and unconscionable attitude on the part of the trial court.
{¶19} The state urges it was obvious the prior imposition of community control did not deter Appellant from committing a similar offense. As the state points out, the trial court made observations indicating it considered the pertinent sentencing factors. Certain comments suggest the court held the opinion that Appellant‘s behavior of driving under suspension was persistent and he posed a risk of reoffending. See
{¶21} The trial court did not find Appellant‘s excuses sufficient considering the time involved. The court voiced Appellant should have communicated better with the probation department. The trial court observed Appellant‘s demeanor and may have believed certain excuses were insincere. See
{¶22} In addition, the record does not affirmatively show the court failed to consider the misdemeanor sentencing criteria in
Donofrio, J., concurs.
DeGenaro, J., concurs.