State v. DudleyState v. Dudley
Paul R. LaPlаnte, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Anthony Dudley, appeals from the judgment entered by the Lake County Court of Common Pleas sentencing him to four years in prison. For the reasons set forth in this opinion, we affirm.
{¶2} The charges in this matter arose from a controlled-buy of crack cocaine arranged through the Lake County Narcotics Agency (LCNA). On September 30, 2008,
{¶3} On November 14, 2008, appellant was indicted by the Lake County Grand Jury on one count of trafficking in cocaine, a felony of the third degree, in violation of
{¶4} Appellant ultimately withdrew his plea of “not guilty” and entered a plea of “guilty” to the felony-three trafficking charge with the forfeiture specifications. The trial court entered a nolle prosequi on the remaining count. The matter was then deferred to the Lake County Adult Probation Department for a presentenсe investigation report.
{¶5} On January 20, 2009, a sentencing hearing took place at which appellant was sentenced to a term of 4 years imprisonment. Appellant filed a timely notice of appeal of the trial court’s sentence and now assigns two errors for our review.
{¶6} Appellant’s first assignment of error reads:
{¶7} “The trial court erred by sentencing the defendant-appellant to a four-year term of incarceration.”
{¶9} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio concluded that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph seven of the syllabus.
{¶10} However, the Court also held that two statutory sections,
{¶11} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Court provided some guidance regarding Foster’s application vis-à-vis the procedure for reviewing felony sentences. The Court held that “appellate courts must apply a two-step approach [in reviewing a felony sentence]. First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imрosing 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 shall be reviewed under an abuse-of-discretion standard.” Kalish, supra, at ¶4.
{¶12} An abuse of discretion is more than an error in judgment or law; it implies an attitude on the pаrt of the trial court that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Furthermore, when applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 1993-Ohio-122.
{¶13} Here, appellant does not allege his sentence is contrary to law; rather, he argues the trial court failed to give “careful and substantial deliberation to the relevant statutory considerations.” Kalish, supra, at ¶20. We disagree.
{¶14} At the sentencing hearing, the trial court stated it specifically considered the overriding purposes and principles of felony sentencing set forth in
{¶15} Prior to announcing its sentence, the trial court made the following particular observations relating to the
{¶16} “The Court has considered specifically the fact that this Defendant has been sentenced to prison on seven prior occasions. Some of those sentences being run concurrent with each other, and there have been four separate trips to prison where numbers were assigned. It appears that the Defendant was released on December 7th of 2007, from his most recent prison term, and the crime that brings us here today was committed just nine months later in September of 2008. It also appears from the record, and I think I’m being generous in my math, but it appears this Defendant has spent about seven years of his nine years of adult life behind bars in prison because of the crimes that he has, in fact, committed. The Court аlso notes and has considered that the Defendant was on post release control at the time this crime was committed following his release from prison in December of 2007.
{¶17} “And the Court also notes that the Defendant did act in conjunction with another, a co-defendant, and that makes this crime part of organized criminal activity as well.
{¶19} “As an adult the Defendant did not miss a beat being involved in criminal activity in that his first conviction as an adult was for a felony, that being in the year 2000, attempted receiving stolen property. There were also convictions for attempted possession of drugs in 2000; possession of drugs as a felony in 2000; аnd preparation of drugs for sale as a felony in 2000. There’s a felony conviction for receiving stolen property in 2001; felony possession of drugs in 2001; drug abuse and disorderly conduct in 02; trafficking in drugs as a felony in 2003, and felonious assault with a firearm, also a felony in 2004. Clearly this Defendant has not responded favorably to sanctions that have previously been imposed. There are PRC violations in 2003; there’s a failure to appear in Court for a hearing in 2002. There’s obviously a violation of his post release control by the commission of this crime while under PRC as a result of that release from рrison in ’07.”
{¶20} The court further acknowledged appellant’s history of alcohol and drug abuse. The court observed that although appellant completed one program relating to treatment for his addictions, he had not received any “extensive treatment” at the time of the hearing.
{¶21} Based upon the court’s considerations, appellant was sentenced to four years imprisonment.
{¶23} Appellant next asserts the trial court failed to give appropriate consideratiоn to the amount of cocaine involved in the instant case. Appellant contends that the weight of crack he sold was on the low end of a felony-three charge; specifically, had the seized contraband been a mere half-gram less, his charge would have been a felony-four rather than a felony-three. Appellant maintains the trial court did not give this detail enough weight in calculating his sentence.
{¶24} Once again, the trial court stated it considered the entirety of the record in fashioning a sentence that complied with the purposes and principles of Ohio’s felony sentencing code. Simply because the amount appellant sold was approximately a half-
{¶25} Appellant’s first assignment of error is overruled.
{¶26} Appellant’s second assignment of error asserts:
{¶27} “The trial court violated the defendant-appellant’s rights to equal protection and due process of law under the Fifth and Fourteenth Amendments to the U.S. Constitution and under Sections 2, 10 and 16, Article I of the Ohio Constitution when it sentenced him contrary to
{¶28} Appellant argues the trial court erred by imposing a sentence that is inconsistent with the sentencеs of other similarly situated criminals who committed similarly situated crimes. We disagree.
{¶29} As discussed above, while a trial court is vested with full discretion to impose a sentence within the statutory range, its discretion is guided by
{¶30}
{¶32} This problem aside, appellant’s argument is facially flawed in that it assumes a defendant who has been found guilty of a “similar offense” is, by implication, a “similar offender.” Such a presumрtion is unwarranted. For instance, the length of a sentence may vary within the proper statutory range depending upon many things, not the least of which is the criminal history of the offender. If an offender’s first offense is a felony-three trafficking conviction, he or she may receive the benefit of а sentence which is lighter than one whose seventh offense is a felony-three trafficking conviction. Even though they may have committed similar crimes, the offenders in the foregoing hypothetical cannot logically be deemed similarly situated; both the circumstances surrounding the crime and the сriminal himself will invariably influence the court during its statutory sentencing exercise.
{¶33} Irrespective of this point, appellant’s position suffers from a more fundamental problem: past precedent. This court has repeatedly held that the “consistency” requirement of
{¶34} Here, the court followed the proper statutory procedure in arriving at its sentence. As the court met its statutory obligations, appellant’s rights to due process and equal protection under the law were not violated. As this court has previously held, the mere fact that an “*** appellant’s sentence was not identical to sentences in other cases does not imply that his sentence was inconsistent with sentences of other similarly situated offenders.” Delmanzo, supra, at ¶33.
{¶35} Appellant’s second assignment of error is overruled.
{¶36} For the reasons discussed in this opinion, appellant’s two assignments of error are overruled and the judgment of the Lake County Court of Common Pleas is hereby affirmed.
MARY JANE TRAPP, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.