State v. GregaState v. Grega
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Nathaniel J. Grega, appeals from the judgment on sentence entered by the Ashtabula County Court of Common Pleas. We affirm.
{¶2} Appellant was indicted on one count of robbery, in violation of
{¶3} Appellant appealed his conviction and, in State v. Grega, 11th Dist. Ashtabula No. 2012-A-36, 2013-Ohio-4094, this court affirmed in part, reversed in part, and remanded the matter for resentencing. This court concluded the robbery and theft offenses should have been merged for sentencing. On remand, the trial court merged the two convictions and the state elected to proceed to sentencing on the robbery charge. The trial court again imposed a three-year term of imprisonment for the robbery conviction and gave appellant credit for time served. This appeal follows.
{¶4} Each of appellant‘s two assigned errors challenge the sentence imposed by the trial court. In reviewing felony sentences, this court has utilized two seemingly distinct standards. On one hand, this court has stated it reviews felony sentences pursuant to the two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26. Under the first prong, appellate courts “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.” Id. “If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” Id.
{¶5} Post-H.B. 86, however, this court has also applied the standard set forth under
{¶6} The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: {¶7} (a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶8} (b) That the sentence is otherwise contrary to law.
{¶9} Our use of the foregoing, ostensibly different, standards of review may initially appear inconsistent. In practice, however, there is no real distinction between the two standards. The point of retaining Kalish for reviewing general felony sentences is merely to underscore the trial court has discretion to enter sentence within a respective felony range. Accordingly, the analysis employed under either standard will inevitably be the same.
{¶10} Nevertheless, because H.B. 86 functioned to revive the standard of review set forth under
{¶11} Because they are related, we shall address appellant‘s assignments of error together. The provide, respectively:
{¶12} “[1.] The trial court abused its discretion and erred to the prejudice of appellant by sentencing him to thirty-six months of imprisonment, in that said prison sentence is excessive for the purposes set forth in Ohio Revised Code Section 2929.11(A) and (B), and is not necessary to protect the public.
{¶13} “[2.] The trial court abused its discretion to the prejudice of appellant by imposing a thirty-six month prison sentence when consideration of the factors in 2929.12 tended to favor a lesser sentence.”
{¶14} Under his assigned errors, appellant does not assert the sentence was clearly and convincingly contrary to law. Instead, he contends the trial court abused its discretion when it essentially reinstated its original sentence for felony-three robbery. Appellant maintains the sentence is disproportionately excessive when the facts that led to the charges are considered in light of the purposes and principles of felony sentencing as well as the statutory recidivism and seriousness factors. We do not agree.
{¶15} Both
{¶16} In this case, appellant was convicted of robbery for the theft of merchandise in a department store. As he was leaving the store, a security officer stepped in front of him and asked appellant to accompany her back into the store. Appellant grabbed the officer by her shoulders, lifted her off the ground, and moved her so that she was no longer blocking his path. Appellant observes that, even though a 36-month sentence is “mid-range for robbery,” it is excessive given appellant‘s actions. We do not agree.
{¶17} Notwithstanding the relatively benign nature of the underlying robbery, the trial court, at the re-sentencing hearing, emphasized the underlying matter represented appellant‘s fourth felony conviction. The record also demonstrates appellant had been convicted of more than 25 misdemeanor crimes since 2001, 11 of which were theft offenses. Further, in its judgment entry, the trial court stated it had considered the record, oral statements, the presentence investigation report, the purposes and principles of felony sentencing under
{¶18} Appellant‘s assignments of error lack merit.
{¶19} For the reasons discussed in this opinion, the sentence entered by the Ashtabula County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.