Case Information
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[Cite as
State v. Ewert
,
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2012-0002 JOSHUA EWERT
Defendant-Appellant O P I N I O N CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2011-0203 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant D. MICHAEL HADDOX ROBERT D. ESSEX PROSECUTING ATTORNEY 604 East Rich Street RONALD L. WELCH Columbus, Ohio 43215 ASSISTANT PROSECUTOR
27 North Fifth Street
Zanesville, Ohio 43701
Muskingum County, Case No. CT2012-0002
Wise, J.
{¶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 R.C. 2911.13, a felony of the fifth degree, and one count of Theft in violation of R.C. 2913.02, also a felony of the fifth degree.
{¶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 *3 ABUSE OF DISCRETION, AND VIOLATED THE PROPORTIONALITY REQUIREMENT OF OHIO SENTENCING LAWS. “
I.
{¶10} In his sole assignment of error, Appellant argues that the trial court erred in sentencing. We disagree. Within this assignment of error, defendant complains that the trial court did
not properly consider or apply the sentencing factors set forth in R.C. 2929.12 or apply the need for rehabilitation under R.C. 2929.11(A). He additionally complains that the court failed to consider the proportionality of the sentence. 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,
calculated to achieve the two purposes set forth in R.C. 2929.11(A): commensurate with and not demeaning to the seriousness of the crime and its impact on the victim and consistent with sentences imposed on similarly-situated offenders. The court must also consider the seriousness and recidivism factors under R.C. 2929.12. However, R.C. 2929.11 and 2929.12 do not mandate judicial fact-finding.
Rather, “[t]he court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. Thus, “in
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exercising its discretion, a court is merely required to ‘consider’ the purposes of
sentencing in R.C. 2929.11 and the statutory * * * factors set forth in R.C. 2929.12.”
State v. Sutton, 8th Dist. No. 97132, 2012–Ohio–1054, ¶ 11, citing State v. Lloyd, 11th
Dist. No. 2006–L–185,
established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120
Ohio St.3d 23,
Court recently held, at paragraph two of the syllabus, that the United States Supreme
Court's decision in Oregon v. Ice,
new language requiring fact-finding for consecutive sentences. Am.Sub.H.B. No. 86. This legislation became effective September 30, 2011. The value in the theft count was altered by H.B. 86, but the level of the
offense was not changed.
{¶19} In the first step of our analysis, we review whether the sentence imposed is contrary to law.
{¶20} In the case at bar, Appellant was convicted of one count of breaking and entering, in violation of R.C. 2911.13 and one count of theft, in violation of R.C. 2913.02, both fifth degree felonies. The trial court merged the counts and sentenced Appellant on the Breaking and Entering count.
{¶21} Upon conviction for a felony of the fifth degree, the statutory sentencing range is six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). Here, the trial court sentenced Appellant to the maximum sentence of twelve months. 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 2929.11 and 2929.12 of the Ohio Revised Code and advised Appellant regarding post-release control. We therefore find that the sentences are not clearly and convincingly contrary to law. 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. 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. *6 Where the record adequately justifies the sentence imposed, the court need not recite its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545. 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. 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),
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. 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 *7 case to suggest that his sentence was based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment. 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 . 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. As relevant to this appeal, under R.C. 2929.11(B), a felony sentence must
be “consistent with sentences imposed for similar crimes committed by similar offenders.” “To support a claim that a ‘sentence is disproportionate to sentences imposed upon other offenders, a defendant must raise this issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal.’ ” State v. Searles, 8th Dist. No. 96549, 2011–Ohio–6275, ¶ 25, quoting State v. Edwards, 8th Dist. No. 89181, 2007–Ohio– 6068, ¶ 11. 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,
this Court with any explanation or evidence as to why or how Appellant’s sentence is disproportionate. 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 Crim.R. 32.2. provides that “[i]n felony cases the court shall, and in
misdemeanor cases the court may, order a presentence investigation and report before
imposing community control sanctions or granting probation.” Therefore, unless a
sentencing court is imposing community control or granting probation in a felony case,
there is no requirement that a court order a pre-sentence investigation. State v. Cyrus
(1992),
Muskingum County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
___________________________________ ___________________________________ ___________________________________ JUDGES JWW/d 0606
Muskingum County, Case No. CT2012-0002
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOSHUA EWERT :
:
Defendant-Appellant : Case No. CT2012-0002 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