State v. CarlisleState v. Carlisle
For Plaintiff-Appellee: Attorney Thomas Strauss, Prosecuting Attorney; Attorney Frank Bruzzese, Assistant Prosecuting Attorney, 16001 State Route Seven, Steubenville, Ohio 43952
For Defendant-Appellant: Attorney Francesca Carinci, Suite 904-9110, Sinclair Building, Steubenville, Ohio 43952
O P I N I O N
¶{1} Defendant-appellant Ryan Carlisle appeals the sentence ordered by the Jefferson County Common Pleas Court after he pled guilty to two counts of felonious assault and two сounts of child endangering. Carlisle contends that the sentence was excessive, disproportionate to the crimes, and that the trial court abused its discretion when it found that he did not express any remorse. These arguments lack merit; the consecutive sentencеs were not contrary to law and the trial court did not abuse its discretion in ordering the consecutive sentences. For the reasons expressed below, the judgment of the trial court is affirmed.
STATEMENT OF CASE
¶{2} On October 1, 2008, a four count indictment was issued against Carlisle; a bill of particulars wаs subsequently requested and filed. The first count charged Carlisle with felonious assault, a violation of
¶{3} Originally, Carlisle pled not guilty to the charges, but then later changed the plea to guilty. After a
ASSIGNMENT OF ERROR
¶{4} “THE COURT ERRED IN IMPOSING FIFTEEN YEARS WHICH IS AN EXCESSIVE SENTENCE AND FOR RUNNING THE SENTENCES ON COUNTS ONE, TWO AND THREE CONSECUTIVELY.”
¶{5} We have recently explained that following the Ohio Supreme Court‘s decision in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, we review felony sentences using both the clearly and convincingly contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. We first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, at ¶8, citing Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶13-14. Then, if it is not clearly and convincingly contrary to law, we must determine whether the sentencing court abused its discretion in applying the factors in
¶{6} The sentences issued were not contrary to law. The five year sentences for each of the three second-degree felonies and the four year sentence for the third-degree felony conviction was within the applicable statutory range.
¶{7} Acсordingly, since the sentence is not contrary to law, we now turn our analysis to whether the trial court abused its discretion in ordering the sentences that it did. Or in other words, did the trial court appropriately consider
¶{8} As for
¶{9} Despite that evidence, Carlisle argues that the sentence was disproportionate.
¶{10}
¶{11} “A sentence imposed for a felony shall be reasonably сalculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
¶{12} The goal of this section is to achieve “consistency” not “uniformity.” State v. Marshall, 8th Dist. No. 89551, 2008-Ohio-1632, ¶20.
¶{13} The Eighth Appellate District has explained:
¶{14} ”
¶{15} Furthermore, it is noted that Carlisle has fаiled to present this court or the trial court with any comparative examples to demonstrate that the sentence received is disproportionate. State v. Jones, 7th Dist. No. 06MA109, 2008-Ohio-1541, ¶85.
¶{16} Thus, for those reasons, Carlisle‘s disproportionate argument lacks merit.
¶{17} Next, we must determine whether thе record indicates that the trial court did not abuse its discretion in weighing and considering the seriousness and recidivism factors in
¶{18} In considering those factors under
¶{19} “[W]hen I look at the more serious factors I find that the ones that do apply to you are that the injury was worsened because of the physical and mental condition of the victim and the age being only seven or eight months.
¶{20} “I find that there was serious physical harm from the injuries that have been related here today, also from the victim‘s impact statement that there was psychological harm as well and the extent оf that we really don‘t know.
¶{21} “I also find that the offense was facilitated by your relationship and that is that you were the live-in boyfriend and that you were there on a regular basis and the baby-sitter for the child.
¶{22} “And I also have to find that this is a felonious assault which does involve a househоld member. It was committed in the vicinity of the child because it was committed on the child and that at that point you were the considered the in loco parentis, the person in charge of the care of that child.
¶{23} “I also have to find that there were repeatеd occurrences and that there were occasions that you could have stopped but you didn‘t, for whatever reason you didn‘t and I don‘t find that any of the less serious ones would apply to you. So the more serious factors do outweigh the less serious.
¶{25} “You are a young man. You‘re only 20. I think you were 19 whenever this happened but you could have walked away. You could have done that. Why you didn‘t I really don‘t know and you really haven‘t been able to explain that to me.
¶{26} “When I look at the recidivism not likely factors, it is true that you don‘t have any. You have not been found to be delinquent. You do not have any prior convictions but under the recidivism likely factors this did happen over a period of time, over a period of two to three months on repeated occasions and so I find that the recidivism likely factors outweigh the not likely factors.” (03/31/09 Tr. 60-62).
¶{27} Carlisle contends that in this analysis the trial court incorrectly determined that he was not remorseful. Given Carlisle‘s testimony and the evidence presented at the sentencing hearing, it is difficult to conclude that the trial court abused its discretion in finding that he lacked remorse for his actions. Admittedly, Carlisle testified that he was sorry for what he did and he also testified that he wrote a letter to Sarah Hudson apologizing for his actions. (03/31/09 Tr. 37, State‘s Exhibit 3). Howеver, he also testified and stated in the letter that his relationship with Hudson contributed to his actions. (03/31/09 Tr. 37, 38, 44, State‘s Exhibit 3). He also blamed his actions on the use of drugs. (03/31/09 Tr. 38, 39, 44). In addition to considering the testimony and exhibits, the trial court was in the best position to view Carlisle‘s demeanor and voice inflections to determine whether there was genuine remorse for his actions. Given the trial court‘s position, the testimony, and our standard of review, we cannot find that the trial court abused its discretion when it concluded that Carlisle was not genuinely remorseful.
¶{29} “A. Yeah. Let‘s take, first of all, the baby in general. * * * He had bruising throughоut all over his head, even behind his ears, back of his neck, on his back, some on one of his – I believe it‘s his left arm, I‘d have to see the report to remember which of the two arms that he had – he had bruising on and you could see some of these bruising – just from my experience somе of these bruises were old and some were fairly fresh, that had been more acute, something more recent and that‘s just what we would see on the outside. It was visible on the mouth. There was some – it appeared to be some type of infection and tearing.
¶{30} “Inside the mоuth – the nurse had opened up his mouth for me. Inside of the lip you would see what‘s called a frenulum and that was – again it appeared infected and it was later told to us that it was actually torn.
¶{31} “* * *
¶{32} “Also, yes, inside the mouth you could see the upper palate. It appеared to have some type of burn. Doctor Adams at Trinity Hospital at that point had believed it to be some type of alkaline burn, similar to hot fluid and that went back into the back of the [baby‘s] throat from what we could see, later to find that the injuries also went into his nasal рassages as well.” (03/31/09 Tr. 13-14).
¶{33} The officer also testified to abrasions on J.H.‘s body and that from further examination by medical personnel, it was discovered that the burn‘s in J.H.‘s mouth also extended to his sinuses. (03/31/09 Tr. 15-18).
¶{34} A report from Pittsburgh Children‘s Hospital was admitted into evidence, which discussed the injuries to the baby and concluded that he had been a victim of “severe, repetitive physical abuse.” State‘s Exhibit 2.
¶{36} Considering the above, we cannot conclude that the consecutive nature of the sentences was excessive and that the trial court abused its discretion in ordering consecutive sentences. Thus, the trial court‘s consideration and analysis of the factors in
¶{37} Lastly, prior to concluding, it is noted that Carlisle cites this court to State v. Ashipa, 1st Dist. No. C-060411, 2007-Ohio-2245, for the proposition that the record does not support the imposition of consecutive sentences. However, that case does not support Carlisle‘s argument. When addressing the propriety of the consecutive sеntences, the appellate court found that the trial court did not commit error in imposing consecutive sentences. Id. at ¶10-12. Thus, the First Appellate District did not reverse the sentence based on the fact that it found that the consecutive sentences were not supported by the record. Rather, it reversed the sentence because the trial court did not orally notify the defendant of post-release control and the sentencing entry did not contain a notification of post-release control. Id. at ¶15-17, 22. Thus, this case does not help Carlisle‘s cause. This assignment of error lacks merit. The sentence issued by the trial court was not contrary to law and was not an abuse of discretion.
¶{38} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.