STATE OF OHIO, Plaintiff-Appellee, - vs - KURTIS M. FORSELL, Defendant-Appellant.
CASE NOS. 2019-P-0116, 2019-P-0117, 2019-P-0118, 2019-P-0119, 2019-P-0120, 2019-P-0121, 2019-P-0122, 2019-P-0123, 2019-P-0124
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
October 13, 2020
2020-Ohio-5381
OPINION
Criminal Appeals from the Portage County Court of Common Pleas. Case Nos. 2017 CR 00952, 2017 CR 01001, 2017 CR 01003, 2017 CR 01055, 2017 CR 01088, 2018 CR 00085, 2018 CR 00103, 2018 CR 00248, & 2018 CR 00230.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Seneca Konturas, P.O. Box 662, Aurora, OH 44202 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{1} Appellant, Kurtis M. Forsell, appeals from the November 18, 2019 entry of the Portage County Court of Common Pleas, granting appellee, the state of Ohio‘s, Motion to Revoke and Modify Sanctions and imposing prison sentences in nine consolidated cases. At issue on appeal is the consecutive nature of those prison sentences. The judgment is affirmed.
{3} Three plea hearings were held, at which appellant pleaded guilty to twelve of the charges: eight counts of Receiving Stolen Property (F5) and two counts of Receiving Stolen Property (F4), in violation of
{4} The cases were consolidated for sentencing, following presentence investigations. On April 30, 2018, appellant was sentenced to community control sanctions, including 365 days in jail with credit for 141 days served; successful completion of in-patient rehabilitation followed by transfer to a residential facility; twelve months of the adult probation department‘s Intensive Supervision Program; and 48 additional months of general supervision. Appellant was also ordered to pay restitution in the total amount of $2,028.09; a fine of $300.00; and courts costs, which totaled over $2,000.00 at the time of sentencing.
{5} The trial court notified appellant he would be placed in prison if he violated the terms of his community control and that he faced a total prison term of 13 years—12 months for each fifth-degree felony and 18 months for each fourth-degree felony.
{7} Following his release from jail, appellant failed to report to the adult probation department, prompting the state‘s second motion to modify or revoke his community control sanctions. At a hearing held November 13, 2019, appellant again admitted to violating the terms and conditions of his community control. Defense counsel requested a minimum prison sentence and advised the court that appellant had recently received a three-month prison term in a case before another judge of the court. The prosecutor requested the trial court impose a term of imprisonment and indicated appellant was facing new charges on higher-level felonies for conduct committed while appellant was on community control in these cases.
{8} The trial court granted the state‘s motion, finding appellant was no longer amenable to community control sanctions and that a prison term was warranted. The court imposed consecutive sentences: 12 months on each of the 12 counts, for a total of 12 years imprisonment. The trial court stated it had considered the purposes and principles of felony sentencing and made consecutive sentence findings on the record. Appellant was credited with 635 days for time served in jail and with the Northeast Ohio Community Alternative Program (“NEOCAP“). He was ordered to pay the fine and court costs within five years and to pay restitution within fifteen years.
{10} The sentence was journalized on November 14, 2019. A nunc pro tunc entry was journalized on November 18, 2019, clarifying that appellant‘s sentence is to be served concurrent with the three-month sentence he had received from the other judge in an unrelated case.
{11} In these consolidated appeals from the trial court‘s sentencing decision, appellant raises one assignment of error:
{12} “The trial court erred in sentencing Appellant to consecutive terms on low-level fourth and fifth degree felonies where the sentence is disproportionate to the seriousness of the offender‘s conduct and is not supported by the record.”
{13} “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 imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 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 offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{14} Our standard of review is governed by
{15} “It is important to note ‘that the clear and convincing standard used by
{16} Here, the trial court made a finding under
{17} Appellant specifically takes issue with the trial court‘s finding that consecutive sentences are not disproportionate to the seriousness of his conduct. He contends this finding is not supported by the record because the amount of restitution he was ordered to pay is relatively low. The state responds that the trial court did not err, despite the low amount of restitution, because the record reflects appellant was given opportunities at rehabilitation but continued to engage in criminal behavior.
{18} In support of his argument, appellant relies on two opinions from Ohio‘s Second District Court of Appeals. In Simons, the defendant was sentenced to two consecutive six-year prison terms for endangering children and illegal use of a minor in nudity-oriented material, in addition to shorter sentences for other convictions ordered to be served concurrently with the consecutive six-year sentences. State v. Simons, 2d Dist. Champaign No. 2003-CA-29, 2004-Ohio-6061, ¶2. The Second District held the trial court should not have ordered consecutive service on these two counts because both offenses occurred within a single episode and neither was made materially more serious by the conduct of the other. Id. at ¶38.
{20} We find appellant‘s reliance on Simon and Carter unpersuasive and inapposite to the matter at hand. First, both opinions applied a previous version of
{21} Second, the facts at hand are distinguishable from those in Simons and Carter. The charges in both of those cases arose from conduct committed by the defendant in one incident. In Simons, the criminal conduct in which the defendant engaged to commit the two offenses occurred within a “single episode,” which was permitting or encouraging minors to take pictures of themselves while participating in the
{22} Appellant further asserts the charges against him were felony offenses only because the property involved were credit and debit cards, but that based on the amount of restitution ordered, the harm he caused was minimal. This argument is not well taken. In addition to pleading guilty to eight counts of Receiving Stolen Property involving credit cards, he also pleaded guilty to two counts of Receiving Stolen Property involving motor vehicles, one count of Theft involving $5,000.00 in cash, and one count of Forgery. Regardless of value, it was the legislature‘s intent for Receiving Stolen Property to be a higher-level offense when the property involved is a credit card or motor vehicle. See
{23} Appellant next argues it was error for the trial court to state it had considered “his many revocations,” as he had only one prior revocation in these cases. Appellant has, however, had other revocations of community control sanctions in previous cases that led to prison sentences. It was shortly after his release from prison that appellant began to commit the crimes in these nine cases. This is all reflected in appellant‘s presentence investigation reports.
{25} We agree with the state‘s observation that this case is similar to our recent decision in State v. Woofter, 11th Dist. Portage Nos. 2019-P-0066 et seq., 2020-Ohio-738. In Woofter, the defendant pleaded guilty, in three cases, to seven counts of Receiving Stolen Property and one count of Theft, all fifth-degree felonies. Id. at ¶2. The sentencing court initially imposed community control sanctions, which the defendant subsequently violated. Id. at ¶3. The court then imposed 12-month sentences on each of the eight counts and ran five of them consecutively, for an aggregate term of five years. Id. at ¶4, 8. One of defendant‘s arguments on appeal was that the consecutive sentence was disproportionate to his conduct because the total financial impact was $1,574.32, for
{26} Likewise, here, consecutive sentences are not disproportionate to the seriousness of appellant‘s conduct due to his continued course of criminal conduct despite opportunities for rehabilitation; his lengthy criminal history involving low level offenses; the fact that he had previously served a prison term and a substance abuse treatment program; that he resorted to these crimes only one month after he was last released from prison and committed some of them while on bond; and the number of victims involved. These are all factors a trial court may consider when evaluating whether consecutive sentences are disproportionate to an offender‘s conduct. An offender‘s conduct “encompass[es] more than just the facts supporting conviction on a particular offense.” State v. Diaz, 8th Dist. Cuyahoga No. 102582, 2015-Ohio-4382, ¶9. “[A] sentencing judge can consider the entirety of a defendant‘s actions in a particular case, not just the defendant‘s behavior or actions when committing any one offense.” Id.; accord State v. Dennison, 10th Dist. Franklin No. 15AP-592, 2016-Ohio-8361, ¶61; see
{27} We do not clearly and convincingly find that the trial court erred in imposing consecutive sentences. Appellant‘s sole assignment of error is not well taken and is without merit.
{28} The judgment of the Portage County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.