State v. EwertState v. Ewert
{¶1} Defendant-Appellant Joshua Ewert appeals his sentence and conviction on one count of breaking and entering and one count of theft following a guilty plea in the Muskingum County Court of Common Pleas.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On September 7, 2011, Appellant Joshua Ewert was indicted for one count of Breaking and Entering in violation of
{¶4} On December 6, 2011, Appellant pled guilty to both counts.
{¶5} No joint recommendation or recommendation from the State was made as to sentencing other than a request for restitution of $3,810.62.
{¶6} The State agreed that Counts 1 and 2 merged for purposes of sentencing and that Appellant should be sentenced on Count 1.
{¶7} The trial court accepted Appellant‘s pleas, denied trial counsel‘s request for a presentence investigation, and proceeded to sentence Appellant to a maximum sentence of 12 months on Count One.
{¶8} Appellant now appeals the sentence, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶9} “I. PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL COURT‘S SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW, WAS AN
I.
{¶10} In his sole assignment of error, Appellant argues that the trial court erred in sentencing. We disagree.
{¶11} Within this assignment of error, defendant complains that the trial court did not properly consider or apply the sentencing factors set forth in
{¶12} We begin our analysis with the premise that the trial court has wide discretion to sentence an offender within the allowable statutory range permitted for a particular degree of offense. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In State v. Foster, the Ohio Supreme Court stated that “trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings and give reasons for imposing maximum, consecutive or more than the minimum sentence.” Id. at paragraph seven of the syllabus.
{¶13}
{¶14} However,
{¶15} Subsequent to Foster, in a plurality opinion, the Ohio Supreme Court established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. The first step is to “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.” Kalish at ¶ 4. If this first step is satisfied, the second step requires the trial court‘s decision be reviewed under an abuse-of-discretion standard. Id.
{¶16} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, the Ohio Supreme Court recently held, at paragraph two of the syllabus, that the United States Supreme Court‘s decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, did not revive Ohio‘s former consecutive-sentencing statutory provisions,
{¶17} The General Assembly recently amended
{¶18} The value in the theft count was altered by H.B. 86, but the level of the offense was not changed.
{¶20} In the case at bar, Appellant was convicted of one count of breaking and entering, in violation of
{¶21} Upon conviction for a felony of the fifth degree, the statutory sentencing range is six, seven, eight, nine, ten, eleven, or twelve months.
{¶22} Here, the trial court sentenced Appellant to the maximum sentence of twelve months.
{¶23} Upon review, we find that the trial court‘s sentencing on the charge complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in Sections
{¶24} Having determined that the sentence is not contrary to law we must now review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v. Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave careful and substantial deliberation to the relevant statutory considerations.
{¶25} Where the record lacks sufficient data to justify the sentence, the court may well abuse its discretion by imposing that sentence without a suitable explanation.
{¶26} In other words, an appellate court may review the record to determine whether the trial court failed to consider the appropriate sentencing factors. State v. Firouzmandi, 5th Dist. No. 2006–CA-41, 2006–Ohio–5823 at ¶ 52.
{¶27} Accordingly, appellate courts can find an “abuse of discretion” where the record establishes that a trial judge refused or failed to consider statutory sentencing factors. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342.
{¶28} An “abuse of discretion” has also been found where a sentence is greatly excessive under traditional concepts of justice or is manifestly disproportionate to the crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. The imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject to review. Woosley, supra at 143–145. Where the severity of the sentence shocks the judicial conscience or greatly exceeds penalties usually exacted for similar offenses or defendants, and the record fails to justify and the trial court fails to explain the imposition of the sentence, the appellate court‘s can reverse the sentence. Woosley, supra at 147. This by no means is an exhaustive or exclusive list of the circumstances under which an appellate court may find that the trial court abused its discretion in the imposition of sentence in a particular case. State v. Firouzmandi, supra.
{¶29} Upon review of the record, we find no evidence the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of Appellant‘s
{¶30} The trial court in this case considered Appellant‘s extensive criminal history, which included the fact that Appellant had just finished serving an eleven (11) month sentence three weeks before he committed the instant offense. (T. at 12). Appellant also had additional trespass and theft charges pending in municipal court at the time of this sentencing. Id.
{¶31} As to Appellant‘s additional challenge regarding the proportionality and consistency of the sentence, we note that he did not challenge the proportionality of his sentence or the consistency of it as compared to other similar offenders in the court below, therefore, he has waived this issue. State v. Santiago, 8th Dist. No. 95516, 2011–Ohio–3058; State v. Lycans, 8th Dist. No. 93480, 2010–Ohio–2780.
{¶32} As relevant to this appeal, under
{¶33} A felony sentence should be proportionate to the severity of the offense committed, so as not to “shock the sense of justice in the community.” State v. Chafin, 30 Ohio St.2d 13, 17. See also
{¶34} Not only did Appellant not raise this issue below, Appellant fails to provide this Court with any explanation or evidence as to why or how Appellant‘s sentence is disproportionate.
{¶35} While not specifically raised as error, Appellant cites to the trial court‘s failure to order a pre-sentence investigation in this case before imposing his sentence. We note that
{¶37} For the foregoing reasons, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JUDGES
JWW/d 0606
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES