STATE OF OHIO, Plаintiff-Appellee, - vs - VERNON DEMEO, Defendant-Appellant.
CASE NO. 2013-A-0067
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
May 19, 2014
2014-Ohio-2012
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012 CR 151. Judgment: Affirmed.
Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH 44123 (For Defendant-Appellant).
COLLEEN MARY O‘TOOLE, J.
OPINION
{¶1} Vernon Demeo appeals from the October 31, 2013 judgment entry of the Ashtabula County Court of Common Pleas, sentencing him to consecutive, maximum terms of eighteen months imprisonment each on two counts of grand theft. Mr. Demeo argues his sentences exceed what is necessary to achieve the purposes of felony sentencing,
{¶2} March 22, 2012, the Ashtabula County Grand Jury returned an indictment against Mr. Demeo, charging him with three counts of grаnd theft, fourth degree felonies in violation of
{¶3} February 22, 2013, Mr. Demeo was arraigned, and pleaded not guilty. He was released on a pеrsonal recognizance bond of $25,000. Motion practice ensued. June 28, a change of plea hearing was held: Mr. Demeo pleaded guilty to two counts of grand theft, and the state moved to dismiss the remaining counts. Mr. Demeo‘s written рlea of guilty was filed July 1, 2013. The trial court memorialized the change of plea in a judgment entry filed July 2, dismissing the two remaining counts, and ordering preparation of a presentence report. Sentencing was set for September 5, 2013.
{¶4} Mr. Demeo did not appear for sentencing. By a judgment entry filed September 6, 2013, the trial court revoked his bond, and ordered a warrant be issued for his arrest.
{¶5} Sentencing hearing went forward October 3, 2013. Mr. Demeo explained his failure to attend the September 5, 2013 hearing due to car trouble. He told the trial court he had cooperated with authorities as an informant in the case. He requested intensive probation under the NEOCAP program. Noting Mr. Demeo‘s very extensive
{¶6} For his first assignment of error, Mr. Demeo states: “The trial court abused its discretion and erred to the prejudice of appellant by sentencing him to thirty-six months of imprisonment, in that said prison sentence is excessive for the purposes set forth in Ohio Revised Code Section 2929.11(A) and (B), and is not necessary to protect the public.”
{¶7} For his second assignment of error, Mr. Demeo states: “The trial court abused its discretion to the prejudice of appellant by imposing consecutive maximum sentences when consideration of the factors in [R.C.] 2929.12 tended to favor a lesser sentence.”
{¶8} The assignments of error being intеrrelated, we consider them together.
{¶9} Mr. Demeo notes there is no presumption prison sentences should be imposed for fourth degree felonies, and that the presentence report suggested intensive supervision through NEOCAP. Hе argues his service as an informant is a mitigating
{¶10} Regarding imposition of consecutive felony sentences, our standard of review is provided by
{¶11} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The аppellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶12} “(a) That the record does not support the sentencing court‘s findings under * * * division * * * (C)(4) of section 2929.14, * * *;
{¶13} “(b) That the sentence is otherwise contrary to law.”
{¶14}
{¶15} “If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if thе court finds that the consecutive service is necessary to protect the
{¶16} “(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial оr sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
{¶17} “(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the сourses of conduct adequately reflects the seriousness of the offender‘s conduct.
{¶18} “(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect thе public from future crime by the offender.”
{¶19} In its judgment entry of sentence, the trial court stated: “The Court * * * finds that consecutive sentences are necessary to protect the public from future crime and to punish the offender and that сonsecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public.” These are the first two findings a sentencing court must make when imposing consecutive sentences pursuant to
{¶20} There is no requirement that a sentencing court, when making the
{¶21} The trial court did not err in imposing cоnsecutive sentences in this case.
{¶22} In State v. Beville, 11th Dist. Ashtabula No. 2012-A-0057, 2013-Ohio-2139, ¶9-11, we set forth the analysis applicable to appeals of maximum sentences, stating:
{¶23} “Subsequent to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, * * *, appellate courts have applied a two step approach in reviewing felony sentences. First, courts ‘examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.’ State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26, * * *.
{¶24} “A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing, which 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.’
{¶25} “There is no ‘mandate’ for the sentencing court to engage in any factual finding under these statutes. Rather, ‘(t)he court is merely to “consider” the statutory factors.’ Foster at ¶ 42. This standard continues to be applicable after the recent enactment of H.B. 86, which did not amend
{¶26} In its judgment entry of sentence, the trial cоurt stated:
{¶27} “The Court has considered the record, oral statements, any victim impact statement, the purposes and principles of sentencing under RC 2929.11, the seriousness and recidivism factors relevant to the offense and offender pursuant to RC 2929.12, and the need for deterrence, incapacitation, rehabilitation, and restitution.” The trial court further found, “that a prison sentence is consistent with the purposes and
{¶28} Regarding the seriousness and recidivism factors, we held in State v. Blair-Walker, 11th Dist. Portage No. 2012-P-0125, 2013-Ohio-4118, ¶39:
{¶29} “‘A sentencing court must consider (* * *) the seriousness and recidivism factors in
{¶30} In its judgment entry, the trial court set forth the considerations leading it to fashion the sentenсe imposed. These included Mr. Demeo‘s extremely extensive criminal background, which is a factor indicating a likelihood of recidivism.
{¶31} The assignments of error lack merit.
{¶32} The judgment of the Ashtabula County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL. J.,
concur.