State v. DrobnyState v. Drobny
Case Information
*1
[Cite as
State v. Drobny
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 98404
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
ANDREW T. DROBNY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminаl Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558198
BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Blackmon, J. RELEASED AND JOURNALIZED: March 14, 2013 *2 ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary Weston
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.: Defendant-appellant, Andrew Drobny (“defendant”), appeals his sentence in
this case, arguing that it is contrary to law because he asserts it is inconsistent with the
sentence the trial court imposed on his codefendant. He also claims that the trial court
erred by ordering him to serve his sentence in this case consecutively to the sentence
imposed upon him in Cuyahoga C.P. No. CR-558241. Although defendant filed a
separate appeal and brief in each case, the sole assignment of error in 8th Dist. No. 98403,
His codefendant, Brittany Martin, entered the same guilty plea. In CR-558241, defendant pled guilty to theft, a felony of the fifth degree. At the time defendant entered these guilty pleas, he was on probation in Parma Municipal Court. The court ordered defendant to serve a 30-month prison sentence on the burglary conviction consecutive to an 11-month sentence for the theft conviction. [1] The trial court explained its rationale for imposing consecutive sentences as follows:
[T]he reason that you’re getting consecutive terms rather than concurrent terms is because this court believеs that the harm you created is great, is unusual, and a single term does not adequately reflect the seriousness of the *4 offense. You heard what Mr. and Mrs. Bonner had to say, and you heard what your grandmother had to say. You’ve been creating problems for people for a very long time. And although I’m only allowed to sentence you for the two matters that are before the Court today, your past record indicates that you have had a serious — several serious bouts with the law which requires that you have the most serious prison term possible. The court explained to defendant that he received a different sentence than his
codefendant for the burglary conviction based on the differences in their criminal records — she had none. The trial judge directly asked the defendant if he really had expected to get the same sentence as the codefendant for the burglary conviction in light of his past record. He responded, “no.”
{¶4} Defendant appeals and asserts the following assignment of error for our review:
Assignment of Error No. 1
The trial court erred by imposing а 30-month sentence for burglary while imposing a lesser sentence on his co-defendant. A review of felony sentencing involves a two-step analysis: (1) whether the
trial court complied with all applicable rules and statutes to determine if the sentence was
clеarly and convincingly contrary to law; and (2) whether the trial court abused its decision
by imposing the sentence.
State v. Kalish
, 120 Ohio St.3d 23,
Defendant contends that the trial court failed to comply with the objectives of
noted by this court in
State v. Georgakopoulos
, 8th Dist. No. 81934,
“The legislature’s purpose for inserting the consistency language contained inR.C. 2929.11(B) is to make consistency rather than uniformity the aim of the sentencing structure. See Griffin and Katz, Ohio Felony Sentencing Law (2001), 59. Uniformity is produced by a sentencing grid, where all persons convicted of the same offense with the same number of prior convictions receive identical sentences, Id. Consistency, on the other hand, requires a trial court to weigh the same factors for each defendant, which will ultimately result in an outсome that is rational and predictable. Under this meaning of ‘consistency,’ two defendants convicted of the same offense with a similar or identical history of recidivism could properly be sentenced to different terms of imprisonment.”
constitutional under Hodge , supra, that language is not enforceable until deliberately revived by the
General Assembly ” ). Although H.B. 86 took effect after Kalish was decided, the majority of
appellate courts continue to apply the two-step analysis it established for sentencing review. Kalish did nоt address the standard of review for required findings that are now back in place for consecutive
sentencing under
Id.
, quoting
State v. Quine
, 9th Dist. No. 20968,
and guidelines in
{¶9} Defendant said he broke into the victim’s house and stole copper plumbing, gym equipment, and several other things for drug money. The amount owed in restitution is $18,305. At sentencing, defendant apologized to the victims. Defense counsel also cited defendant’s mental health diagnosis in mitigation. Defendant has not established that his 30-month prison sentence is clearly and
convincingly contrary to law or that the trial court abused its discretion by imposing it. This assignment of error is overruled.
Assignment of Error No. 2 [4]
The trial court acted contrаry to law when it imposed consecutive sentences without authority to do so under the Ohio Revised Code.
Assignment of Error No. 3
The trial court erred when it failed to make statutorily necessitated findings before imposing consecutive sentences. Defendant contends that the trial cоurt was without authority to impose
consecutive sentences pursuant to the version of
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(A) Except as provided in division (B) of this section, division (E) of
{¶12}
Defendant contends that none of the exceptions to the presumption of
concurrent sentences apply, and therefore the trial court erred by imposing consecutive
sentences in this case. However, there are provisions for imposing consecutive sentences
in
expressed its intent to revive the statutory fact-finding provisions that existed as a
prerequisite to imposing consecutive sentences that were effective before
State v. Foster,
109 Ohio St.3d 1,
applied rather than affording weight to a typographical error by applying the statute in a
manner contrary to the legislative intent.
Id.
at ¶ 22. Accordingly, the triаl court was
authorized to impose consecutive sentences in this case in accordance with
{¶15}
(4) 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 the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposеd pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(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 courses of conduct adequately reflects the seriousness of the offender’s conduct. (c) The offendеr’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. The trial court explained to defendant,
[T]he reason that you’re getting consecutive terms rather thаn concurrent terms is because this court believes that the harm you created is great, is unusual, and a single term does not adequately reflect the seriousness of the offense. You heard what Mr. and Mrs. Bonner had to say, and you heard what your grandmother had to say. You’vе been creating problems for people for a very long time. And although I’m only allowed to sentence you for the two matters that are before the Court today, your past record indicates that you have had a serious — several serious bouts with the law which requires that you have the most serious prison term possible.
These findings by the court, coupled with the record evidence, complied with the
provisions of
{¶17} The second and third assignments of error are overruled. Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a speсial mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR
[1] Initially the trial court ordered defendant to serve 12 months for the theft offense consecutively to a 36-month prison term for the burglary cоnviction. After a side-bar discussion, the court reduced defendant ’ s sentence in both cases as stated.
Notes
[2] Subsequent to the court ’ s decision in Kalish , H.B. 86 took effect. Am.Sub.H.B. 86, 2001
Ohio Laws 29 ( “ H.B. 86 ” ), revised Ohio ’ s sentencing statutes. Among other amendments, the
legislature explicitly stated its intent to re-еnact and revive mandatory statutory findings applicable to
imposing consecutive sentences. See
[3] Defendant stole her camera and pawned it for drug money.
[4] This is the same assignment of error alleged in 8th Dist. No. 98403,2013-Ohio-818 .
[5]