2004 Ohio 792 | Ohio Ct. App. | 2004
{¶ 2} In August 2002, appellant was involved in a fight in his girlfriend's apartment. Appellant knocked another man to the ground and kicked him in the head. In September 2002, appellant drew a nine-millimeter handgun during an altercation outside of a bar. He was on disability at this time, by virtue of being on post-release control and having been released from prison within five years, both due to a robbery conviction, which was a second degree felony.
{¶ 3} As a result of these incidents, appellant was charged with one count of attempted felonious assault, a third degree felony, and one count of having a weapon while under disability, also a third degree felony. The count of having a weapon while under disability included a firearm specification.
{¶ 4} Appellant pled guilty to both of the charges against him, as well as the firearm specification. The state and the defense submitted a jointly-recommended sentence to the trial court. This recommended sentence was for one-year terms on the underlying offenses, to be served concurrently to each other and consecutively to a three-year term for the firearm specification, resulting in a total sentence of four years. However, the trial court did not impose the jointly-recommended sentence. Rather, the court sentenced appellant to four-year terms on the underlying offenses, to be served concurrently to each other and consecutively to a three-year term for the firearm specification, for a total prison term of seven years.
{¶ 5} Appellant has timely appealed the judgment of sentence. Appellant's sole assignment of error is:
{¶ 6} "The trial court erred to the prejudice of the defendant-appellant when it ordered a term of imprisonment without making the requisite findings under the applicable sentencing statutes."
{¶ 7} Pursuant to R.C.
{¶ 8} R.C.
{¶ 9} On the record at the sentencing hearing, the trial court applied the sentencing factors of R.C.
{¶ 10} Appellant contends that the trial court erred by failing to impose the sentence that was jointly recommended by the state and the defense. A trial court is not required to impose a jointly-recommended sentence.6 Further, after reviewing the record, we cannot say the trial court abused its discretion by imposing a sentence which was more severe than the recommendation.
{¶ 11} Appellant also argues that the trial court misapplied the factors of R.C.
{¶ 12} First, appellant asserts the trial court erred in finding that the victim suffered physical, psychological, and economic harm.7 He contends the record only supports a finding that the victim suffered physical harm. The victim suffered a fractured cheekbone. While the record may not have specifically mentioned psychological or economic harm, the trial court could have inferred that psychological and economic harm resulted from the severe injury to the victim's face. Such finding does not constitute an abuse of discretion.
{¶ 13} Appellant objects to the trial court's finding that his relationship with the victim facilitated the offense.8 Even though appellant stated he did not previously know the victim, the incident arose due to his relationship with his girlfriend and her interaction with the victim. While this may not be a traditional example of an offender's relationship with the victim facilitating an offense, we cannot say, after reviewing the entire record, that this alleged error constitutes an abuse of the trial court's discretion, warranting a reversal.
{¶ 14} Appellant argues that the trial court erred by not finding that any of the factors of R.C.
{¶ 15} Appellant contends the trial court erred by finding that he had an extensive criminal record.10 He asserts that he had a lengthy juvenile record but had only committed one offense as an adult. The record reveals that appellant was in prison from the time he was eighteen to twenty-two years old. Following his release, in the short time prior to committing the instant offenses, he committed a theft offense in Mentor. Moreover, we note that a trial court is to consider an offender's juvenile record.11 The trial court did not err by finding that appellant had an extensive criminal record.
{¶ 16} In addition, appellant suggests the trial court erred by finding that he showed a lack of remorse.12 Although the record indicates appellant stated he was sorry to everyone he hurt, his lengthy criminal record suggests that he was unremorseful. Moreover, the trial court was in the best position to judge the sincerity of appellant's statement and make a finding whether he was remorseful for his conduct. We cannot say the trial court erred by making this finding.
{¶ 17} Finally, appellant contends the trial court erred by finding that he failed to acknowledge his drug or alcohol abuse or accept treatment.13 Appellant stated "I make mistakes when I drink." He also stated that it was his choice whether he would "take steps to address my problems while I'm locked up." The fact that appellant makes statements at the sentencing hearing recognizing that he has an alcohol problem, does not preclude a finding by the trial court regarding appellant's likelihood to commit future crimes due to his alcohol abuse. The record suggests appellant was intoxicated during both of the underlying offenses. Accordingly, the trial court did not abuse its discretion by making the finding pursuant to R.C.
{¶ 18} Appellant's assignment of error is without merit.
{¶ 19} The judgment of the trial court is affirmed.
Judgment affirmed.
Diane V. Grendell and Cynthia Westcott Rice, JJ., concur.