2005 Ohio 4209 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On March 1, 2004, Fatica was charged by information with one count of Breaking and Entering, a felony of the fifth degree in violation of R.C.
{¶ 3} Fatica was sentenced on April 5, 2004. Fatica received twelve-month prison sentences for each count; the sentences for Breaking and Entering and for Vandalism to be served consecutively to each other, but concurrently with the sentence for Possession of Cocaine for an aggregate sentence of twenty-four months. Fatica was ordered to pay restitution to the adult parole authority on behalf of Thomas Salagovic, owner of the Concord Tavern, and on behalf of the City of Kirtland. Fatica's driver's license was also suspended for two years.
{¶ 4} Fatica timely appeals and raises the following assignments of error:
{¶ 5} "[1.] The trial court erred to the prejudice of the defendant-appellant when it ordered a term of imprisonment where its findings were not supported by the record.
{¶ 6} "[2.] The trial court erred to the prejudice of the defendant-appellant when it ordered consecutive sentences.
{¶ 7} "[3.] The trial court erred by sentencing the defendant-appellant to the maximum term of imprisonment on all charges.
{¶ 8} "[4.] The trial court erred when it sentenced the defendant-appellant to consecutive, maximum sentences based upon a finding of factors not found by the jury or admitted by the defendant-appellant in violation of the defendant-appellant's state and federal constitutional rights to trial by jury."
{¶ 9} An appellate court reviews a felony sentence under a clear and convincing evidence standard of review. R.C.
{¶ 10} In his first assignment of error, Fatica broadly argues that the trial court's findings made "when sentencing him to twelve months imprisonment on each of the charges were not supported by the record."
{¶ 11} When imposing a sentence for a fifth degree felony, the sentencing court "shall determine" whether any of the factors contained in R.C.
{¶ 12} "If the court makes a finding described in division (B)(1)(a) [through] (i) of this section and if the court, after considering the factors set forth in section
{¶ 13} Fatica does not challenge the trial court's findings relative to specific mitigating and aggravating factors. Nor did Fatica object to the contents of the presentence investigation report ("PSI") which included a psychological exam and a record of Fatica's multiple juvenile adjudications and criminal convictions. Rather, Fatica challenges the lower court's finding that, on balance, the seriousness and recidivism factors support the imposition of a prison term.
{¶ 14} As a factor aggravating the seriousness of Fatica's conduct, the court found that the victims, both Mr. Salagovic and the Kirtland Police Department, suffered serious economic loss. With respect to the recidivism factors, the court found that Fatica committed the instant offenses while on parole, that Fatica has a lengthy history of juvenile delinquency adjudications and a history of adult criminal adjudications, that there has been a failure to rehabilitate Fatica, that Fatica failed to respond favorably to the prior imposition of probation and parole, that Fatica demonstrates a pattern of drug and alcohol abuse and has failed to seek treatment, and that Fatica suffers from a serious antisocial personality disorder.
{¶ 15} The court found that there were "no mitigating factors which make these offenses less serious" and that "none of the factors make recidivism less likely in this particular case."
{¶ 16} Fatica asserts that the court failed to consider the following: Fatica showed genuine remorse for the damage he caused by bringing a certified check for $1,798 to the sentencing hearing to make restitution to Mr. Salagovic. Fatica also maintains that the prompt payment of restitution mitigates against the court's finding that the "victim suffered serious economic harm." Fatica expressed the desire to receive treatment for substance abuse. Fatica's conduct was motivated by a desire to help his girlfriend feed her hungry children.
{¶ 17} We hold that the trial court's decision to impose prison terms is clearly and convincingly supported by the record and is not otherwise contrary to law. Fatica's present desire to receive treatment does not mitigate against the fact that he has failed to seek treatment in the past.2 We have often held that an untreated history of substance abuse justifies, rather than mitigates against the imposition of a harsher sentence. E.g.State v. Caldwell, 11th Dist. No. 2002-L-142, 2003-Ohio-6964, at ¶ 30. Similarly, Fatica's prompt payment of restitution to Mr. Salagovic does not invalidate the fact that Mr. Salagovic, as well as the Kirtland Police Department, suffered economic loss. Although a court may consider the prompt payment of restitution as a token of genuine remorse, the original damage caused by the criminal conduct remains a relevant factor in sentencing the offender. Finally, Fatica's alleged desire to help feed his girlfriend's children has no relevancy to the Possession of Cocaine and Vandalism charges. This court has generally deferred to the sentencing court's estimation of an offender's remorse. E.g. State v. Schaub, 11th Dist. No. 2003-L-091, 2005-Ohio-703, at ¶ 48; State v. Murphy, 11th Dist. No. 2003-L-049, 2005-Ohio-412, at ¶ 34 (citation omitted). We will do so in the present case.
{¶ 18} For the foregoing reasons, the mitigating factors raised by Fatica fail to upset the sentencing court's decision to impose prison terms for the fifth degree felonies. Fatica's first assignment of error is without merit.
{¶ 19} Fatica's second assignment of error challenges the sentencing court's imposition of consecutive sentences.
{¶ 20} "A court may not impose consecutive sentences for multiple offenses unless it `finds' three statutory factors. R.C.
{¶ 21} "(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
{¶ 22} "(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.
{¶ 23} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 24} When imposing consecutive sentences for multiple offenses under R.C.
{¶ 25} Fatica does not dispute that the court made the findings required by R.C.
{¶ 26} In our discussion of the previous assignment of error, we noted the various aggravating and recidivism factors cited by the lower court justifying the imposition of prison terms. The court specifically noted the fact that Fatica committed multiple offenses while on parole justified the imposition of consecutive sentences. In addition, the trial court went through Fatica's extensive juvenile and criminal history in detail:
{¶ 27} "For the record, the Court is going to recite those [prior adjudications and convictions] from the presentence report, [they] began at the [age] of 13 when [Fatica] was sentenced to probation in Cuyahoga County Juvenile Court for four counts of aggravated burglary; again at the age of 13, another count of aggravated burglary; again age 13, three additional counts of aggravated burglary. At the age of 14 there were violations of court orders, as well as findings for aggravated burglary, possession of stolen property and forgery. At the age of 15 we are still doing aggravated burglaries. At the age of 16, criminal mischief, assault, and aggravated menacing. At the age of 16 we have drug abuse and minor purchase of liquor; age of 16 [sic] we have resisting arrest and disorderly conduct. At the age of 17 we have the unauthorized use of a motor vehicle, which resulted in a commitment to the Ohio Department of Youth Services.
{¶ 28} "And then we don't miss much of a beat, shortly after turning 18 and becoming an adult, conviction for aggravated burglary, for which there was a prison term imposed by the Cuyahoga County Court of Common Pleas. Also in 1984 we have a conviction for attempting receiving stolen property and drug abuse. In 1990, conviction for carrying a concealed weapon; in 1993, convictions for theft, escape, unauthorized use of a motor vehicle; 1993, attempt to commit vandalism; and in 2003, a conviction for assault out of Geauga County."
{¶ 29} The sentencing court's recitation of Fatica's considerable criminal past constitutes a litany of specific reasons supporting its findings that consecutive sentences are necessary to protect the public from future crime by Fatica. Fatica's second assignment of error is without merit.
{¶ 30} Fatica's third assignment of error challenges the sentencing court's imposition of twelve-month sentences for each of the charges, the maximum possible sentence for a fifth degree felony. R.C.
{¶ 31} Pursuant to R.C.
{¶ 32} In the present case, the sentencing court found on the record that Fatica "does pose the greatest likelihood of committing crimes based on the lengthy and extensive findings of adjudications as a juvenile and lengthy convictions as an adult, so many of them being burglaries, breaking and entering. Obviously [Fatica] cannot conform to the rules we have in our society and he continues to enter the establishments and buildings of others and steals from them. For those reasons, as well as all the other factors the Court previously put on the record, the maximum prison terms are appropriate."
{¶ 33} Again, Fatica does not dispute the court's compliance with R.C.
{¶ 34} In his fourth and final assignment of error, Fatica argues that the imposition of consecutive and maximum sentences violate his state and federal rights to trial by jury. Fatica's argument rests on a line of United States Supreme Court decisions beginning with Apprendi v. New Jersey (2000),
{¶ 35} In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. In Blakely v. Washington (2004),
{¶ 36} Fatica argues that, since Ohio's sentencing statutes require a court to make certain findings before imposing consecutive or maximum sentences, those findings must be determined by a jury or admitted to by the defendant.
{¶ 37} In regard to the imposition of consecutive sentences, this court has consistently distinguished Apprendi andBlakely, which involve sentencing for a single crime. The "statutory maximum" for Apprendi purposes applies to "the penalty for a crime," not to the decision to order the penalties for multiple crimes to be served consecutively. State v.Taylor,
{¶ 38} In regards to the imposition of maximum sentences, this court has also previously held that Ohio's sentencing scheme does not violate Apprendi/Blakely or the
{¶ 39} In the present case, however, we need not consider whether the sentencing court engaged in impermissible judicial fact-finding. Under both Apprendi and Blakely, a sentencing court may consider "the fact of a[n offender's] prior conviction" when imposing a sentence beyond the statutory maximum forApprendi purposes.
{¶ 40} The sentencing court made the "finding" that Fatica poses "the greatest likelihood of committing crimes" based on his history of adult convictions and juvenile adjudications and the fact that Fatica committed the instant offenses while on parole, a fact admitted by Fatica. This record, by itself, "clearly and convincingly" supports the finding that Fatica poses the greatest likelihood of committing future crimes and, therefore, the imposition of the maximum sentences. Colbert, 2005-Ohio-2524, at ¶ 11; Mendenhall, 2005-Ohio-2525, at ¶ 13; State v. Reen, 11th Dist. No. 2003-A-0077, 2005-Ohio-2067, at ¶ 16.
{¶ 41} Fatica's fourth assignment of error is without merit.
{¶ 42} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, sentencing Fatica to three twelve month terms of imprisonment and ordering two of those terms to be served consecutively for an aggregate sentence of twenty-four months, is affirmed.
O'Toole, J., concurs, O'Neill, J., dissents with a Dissenting Opinion.
Dissenting Opinion
{¶ 43} I must respectfully dissent, for this case presents the classic example of what is wrong with criminal sentencing in Ohio. I accept the majority's conclusion that this particular defendant's lack of remorse, failure to accept responsibility for his own actions, and extensive criminal record "clearly and convincingly [support] the imposition of maximum sentences." However, once again I find myself offended by the trial court's making "findings" contrary to the pronouncements of the United States Supreme Court. As so aptly pointed out in the brief of appellant, the evidentiary quality of these "findings" is the precise exercise criticized by the majority of the United States Supreme Court Justices in Blakely v. Washington.3
{¶ 44} As stated by the high court in Blakely:
{¶ 45} "Any evaluation of Apprendi's `fairness' to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, * * * based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong."4
{¶ 46} Anyone who has any familiarity with the criminal justice system in Ohio knows that, as a practical matter, judges routinely are forced to rely upon a presentence investigation report. That document is always an out of court statement offered for the truth of the matter asserted. Rarely is there the opportunity to verify its authenticity or accuracy. As such, it is hearsay in its most basic form. And it is used by trial courts to make the most important decision in the prosecution: who goes to jail, for how long, and who does not. Such a process offends the
