STATE OF OHIO v. LESTER CARLTON, JR.
Appellate Case No. 26086; Trial Court Case Nos. 09-CR-390, 09-CR-391, 10-CR-3622
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
September 5, 2014
[Cite as State v. Carlton, 2014-Ohio-3835.]
FAIN, J.
Criminal Appeal from Common Pleas Court
Attorney for Plaintiff-Appellee
VICTOR A. HODGE, Atty. Reg. #0007298, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
OPINION
{2} We conclude that a trial court is рresumed to have considered the purposes and principles of sentencing, and the statutory seriousness and recidivism factors, unless the record suggests to the contrary. We find nothing in this record to suggest that the trial court failed to consider those purposes, principles, and factors. Accordingly, the judgment of the trial court is Affirmed.
I. Carlton‘s Non-Support Convictions
{3} In May, 2009, in Montgomery County Common Pleas Court Case No. 09-CR-390, Carlton pled guilty to one count of the failure to pay child support, in violation of
{4} On the same day in May, 2009, in Case No. 09-CR-391, Carlton pled guilty to one of two fifth-degree felony counts of failure to pay child support. The other count was dismissed. Community control sanctions were imposed in this case.
{5} In January, 2011, in Case No. 2010 CR 03622, Carlton pled guilty to two fifth-degree counts, and one fourth-degree count, of failure to pay child support. He failed to appear for sentencing. He also failed to report to the Montgomery County Adult Probation Department, as required by the terms of his community control sanctions imposed in the other two cases. More than two years later, he was arrested. In July, 2013, Carlton was sentenced to community control sanctions in this case.
II. The Revocation Proceeding
{6} In December, 2013, Carlton was servеd with notice of a revocation hearing, in which it was alleged that he had: (1) “failed to make full payments in [his] court ordered child support cases“; (2) “failed to attend scheduled office visits on September the 16th and 23rd,” and “failed to attend an office visit for the entire month of November and failed to report until your Non-Support Hearing on December 16“; and (3) “failed to make payments toward your court
{7} Following a hearing, the trial court revoked Carlton‘s community control sanctions in all three cases, and imposed concurrent, twelve-month prison sentences for all of the non-support conviсtions except the one fourth-degree count in Case No. 09-CR-390. The trial court expressly based its decision to revoke community control solely upon Carlton‘s failure to have reported weekly as required by the terms of the community control sanctions. Two days later, as noted in Part I, above, a different judge imposed a twelve-month prison sentence for both of the non-support counts in Case No. 09-CR-390, to be served concurrently with all of the other sentences in both of the other cases.
{8} From the sentence, Carlton appeals. His sole assignment of error is as follows:
THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPOSING A SENTENCE OF INCARCERATION FOR A COMMUNITY CONTROL VIOLATION WITHOUT CONSIDERING THE PURPOSES AND PRINCIPLES OF SENTENCING (
R.C. 2929.11 ) AND SERIOUSNESS AND RECIDIVISM FACTORS (R.C. 2929.12 ).
III. There Is Nothing in this Record to Overcome the Presumption that the Trial Court Considered the Purposes and Principles of Sentencing and Seriousness and Recidivism Factors
{9} As a preliminary matter, we note that thе sentence the trial court imposed was not
{10}
(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated 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.
(C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.
{11}
{12} Neither in the trial court‘s remarks at the sentencing hearing following the revocation hearing, in the February 11, 2014 sentencing entry, nor in the February 13, 2014 sentencing entry, is there any express indication that the trial court considered the purposes and principles of sentencing, or the seriousness and recidivism factors.
{13} Carlton argues that: “Where the record does not affirmatively indicate that the [trial court] applied
Of course, where the trial court does not put on the record its consideration of
R.C. 2929.11 and2929.12 , it is prеsumed that the trial court gave proper consideration to those statutes. Cf. State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.
{15} Significantly, however, Justice Lanziger‘s dissenting opinion, in which two other justices concurred, did not address the issue of whether a silent record raises a presumption that the trial court has considered the statutory factors. Thus, in Kalish there are three justices on record opining that a silent record raises the presumption, one appellate judge sitting for a justice opining that a silent record does not raise the presumption, and three justices taking no position on that issue. We conclude that Kalish does not offer any support for Carlton‘s argument that a trial court‘s consideration of statutory sentencing factors may not be presumed frоm a silent record.
{16} In Rodeffer, the next case Carlton cites, we noted at ¶ 32 that: “According to Kalish, a sentence is not contrary to law when the trial court imposes a sentence within the statutory range, after expressly stating that it had considered the purposes and principles of sentencing as set forth in
{17} Likewise, in Haley, the third of the cases Carlton cites, the opinion notes at 14 that the trial court in that case had stated that it had considered the statutory factors, both at the hearing, and in its sentencing entry. The Haley opinion did not concern itself, therefоre, with the situation, hypothetical in that case, in which a record is silent as to whether the trial court had considered the statutory factors. Therefore, we conclude that the Haley opinion is not authority for the proposition that consideration of the statutory sentencing factors may not be presumed from a silent record.
{18} As the State notes, we have held on more than one oсcasion that a trial court‘s consideration of the statutory sentencing factors may be presumed from a silent record. State v. Imber, 2d Dist. Clark No. 11CA0063, 2012-Ohio-3720, ¶ 26; State v. Neff, 2d Dist. Clark No. 2012-CA-31, 2012-Ohio-6047, ¶ 5; and State v. Gibson, 2d Dist. Champaign No. 2012-CA-38, 2013-Ohio-2930, ¶ 35. We see no reason to depart from that holding in this case.
{19} Although the trial court did not refer either to the purposes and principles of sentencing (
In the Court‘s view the primary issue is one of failure to report. How does that play out in terms of my judgment? There was a two year failure to report that was admitted by Mr. Carlton. That was a failure to report that preexisted Judge Dankof‘s granting, if you will, of another chance to Mr. Carlton.
Mr. Carlton said he was going through a very difficult time – the death of a child, injury to his stepfather, other events in his life that basically put him in a mental condition where he simply did not report for two years. It was under those circumstances that Judge Dankof received the case on a revocation and did not revoke, but chose to give Mr. Carlton another chance. If we were just talking about that two year period, if that was the only issue of non-reporting before me, I would say, you know, my colleague – my friend, Judge Dankof, someone whose judgment I greatly respect had that before him and he chose not to revoke. And that would have an impact on me. The problem is I‘ve got another substantial period where you did not report, Mr. Carlton. And I‘m talking about October the 29th to December the 29th.
Now, what you‘ve testified to is, hey, Scott Hartings [sic, Carlton‘s probation officer] was hard to get hold of. I left phone messages, I tried to call Donnie Anderson [Harting‘s “coverаge partner“]. But you said yourself, you made no effort – there was no attempt, no single attempt to go down to the probation department.
This follows a period of two years where you had not reported at all and you knew that was a big issue. You basically were given another opportunity despite that big problem, and yet, in the context of not seeing Mr. Harting as
required, you didn‘t go down to thе probation department. You didn‘t either seek him out or seek out – and I‘m looking now at Rule 5 of the general conditions of supervision. And this was something as has been acknowledged. The State‘s Exhibit 1. It was something you signed back in 2009 and the provision remains the same. But the provision indicates, “I shall report at such time and place as directed by my probation officer. If my probation officer is unavаilable –” there was testimony Mr. Harting was out for a period of time in November. Not all of November and certainly not December 1 to December the 29th. That‘s 29 days of December where whatever happened in November that drew him out of the office – I think it was a vacation – that wasn‘t the case. There‘s no evidence of that at all that he was out in December. And so according to Rulе 5 which you‘re acknowledging in State‘s Exhibit 1, you shall report if Mr. Harting is unavailable to the officer of the day. His testimony was when he is out the officer of the day – the person that covers for him as he covers for this person – is Donnie Anderson. So you were in a position in November, in December to go down there to look for Donnie Anderson. And, indeed if Donnie Anderson, the officer of the day, was not avаilable, you were in a position pursuant to this requirement – this rule to look for the supervisor, the manager, the assistant deputy, or the deputy court administrator. You had a number of people that you could have reported to.
The Court finds as a matter of law your attempt to call – I don‘t know how many times - it wasn‘t clear – how many times you attempted to call, but that‘s
not reporting when you have a number of people that would be available to you if you simply went down to the probation office. Why should you do that? You‘re the person under probation. You‘re the person who is on community control sanctions and it‘s up to you – it‘s incumbent upon you to follow those requirements. You‘re the person that has to follow the requirements. And this is after this two year non-reporting period which, аs I have said, if that was all that was before me, I would not revoke based on that because I think Judge Dankof dealt with that. But when there follows another substantial period on the heels of that, that‘s a different – in the Court‘s view – that‘s a different composition which leads me to the conclusions that I‘ve reached.
{20} We find nothing in the record to rebut the presumption that the trial court considered the purposes and principles of sentencing, and the seriousness and recidivism factors, when it imposed sentence in this case. In the above-quoted remarks the trial court twice stressed the fact that Carlton‘s having absconded for two months in late 2013 occurred just months after he had absconded for over two years, during which time Carlton made only three or four partial payments of child support. This suggests, at least, that the trial court was considering the recidivism factor represented by Carlton‘s having absconded just shortly after a prior, longer period during which he absconded, after which he was given another chance at community control sanctions. It also suggests that the trial court gave consideration, in accordance with
{21} We conclude that the record does not support Cаrlton‘s sole assignment of error, which we overrule.
IV. Conclusion
{22} Carlton‘s sole assignment of error having been overruled, the judgment of the trial court is Affirmed.
WELBAUM, J., concurs.
FROELICH, P.J., concurring:
{23} On this record, I concur in judgment.
{24} As stated in State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶¶ 14, 15:
We understand Appellant‘s argument to be further that even if he were in violation of the conditions of his community control, the court should have imposed a less restrictive sanction and continued him on community control. “Community control is not a contract for good behavior. The community control sanction is deemed the appropriate sentence to both punish the offender and protect the public. Community control is not ‘a break‘; it is the punishment that fits the crime.” State v. Beverly, Ross App. No. 01 CA 2603, 2002-Ohio-118 (emphasis in original).
{25} Regardless, this is not an appeal pursuant to
{26} I believe the wording in the majority opinion that compliance with statutory mandates is always presumed and the burden is always on the appellant to show noncompliance is too broad.
{27}
{28} To achieve these purposes, the court shall consider the need for incapacitating the
{29} If a court does not adhere to these statutory requirements, it is abusing its discretion and the sentence would be reversed. The burden on an Appellant is to demonstrate reversible error.
{30} Unlike
{31} Even in a case such as this where the court may be presumed to have considered the factors, the proper exercise of its discretion in imposing a sentence is still subject to appellate review.
{32} Carlton has not assigned abuse of discretion as error, and I would not find any if it were alleged.
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Mathias H. Heck
Andrew T. French
Victor A. Hodge
Hon. Michael W. Krumholtz