State v. HenryState v. Henry
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third Street, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
BRESSLER, J.
{¶1} Defendant-аppellant, Patrick C. Henry, appeals his sentence following his convictions in the Clermont County Court of Common Pleas for theft and three counts оf receiving stolen property.
{¶2} On October 15, 2009, appellant entered guilty pleas to three felony offenses of receiving stolen proрerty in violation of
{¶3} Assignment of Error No. 1:
{¶4} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO THE MAXIMUM TERM OF IMPRISONMENT ON THREE COUNTS OF RECEIVING STOLEN PROPERTY.”
{¶5} Assignment of Error No. 2:
{¶6} “THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE PRISON TERMS AS THE RECORD DOES NOT SUPPORT SUCH A SENTENCE.”
{¶7} In his first and second assignments of error, appеllant challenges his sentence as being excessive and unsupported by the record. Appellant maintains his sentence fails to achievе the overriding purposes of felony sentencing.
{¶8} “Trial courts have full discretion to impose a prison sentence within the statutory range and arе no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶100. “In applying Foster * * * appellate cоurts must apply a two-step approach. First, they must 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. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse-of-discretion
{¶9} A sentence is not clearly and convincingly contrary to law where the trial court “consider[s] the purposes and principles of
{¶10} After reviewing the record, we find appellant‘s sentence is not clearly and convincingly contrary to law. At the sentencing hearing, the trial court expressly stated that it considered the purposes and principles of sentencing under
{¶11} In addition, we find that the trial court did not abuse its discretion in оrdering appellant to serve three consecutive, 12-month terms of imprisonment. It is evident from the record that the trial court gave careful аnd substantial deliberation to the relevant statutory considerations. The court noted appellant‘s criminal history, including at least three previоus felony convictions and at least five previous periods of incarceration. The court also considered statements made by appellant, appellant‘s family, and the victims. We find nothing in the record to indicate that the trial court‘s decision is unreasonable, arbitrary, or unconscionable.
{¶12} Appellant‘s first and second assignments of error are overruled.
{¶13} Assignment of Error No. 3:
{¶14} “THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY RESTITUTION.”
{¶15} In his third assignment of error, appellant argues the trial court abused its discretion in ordering appellant to pay restitution to the victims. Appellant argues the trial court failed to adequately address appellant‘s present and future ability to pay the amounts ordered.
{¶16} Initially, we note that the state argues appellant forfeited the right to presеnt this argument on appeal by failing to object to the trial court‘s restitution order. However, this court has held this argument to be unpersuasive, as ”
{¶17}
{¶18} “[T]here are no express factors that must be taken into consideration or findings regarding the offender‘s ability to pay that must be made on the record.” State v. Martin, 140 Ohio App.3d 326, 338, 2000-Ohio-1942. There must be some evidence in the record, however, to show that the trial court acted in accordance with the legislative mandate. See State v. Adkins (2001), 144 Ohio App.3d 633, 647.
{¶19} We have consistently held that compliance with
{¶20} We find that the information before the trial court, in the form of statements made by appellant and the trial court, and the court‘s reference to the PSI in the sentencing heаring and journal entry, indicates that the court complied with
{¶21} While appellant has not contested the amount of restitution he was ordered to pay, we notice that appellant was ordered to pay a specific amount of restitution exceeding the value of the property set forth in the definition of a misdemeanor theft offense. See State v. Miller, Butler App. No. CA2007-11-295, 2008-Ohio-5661, ¶9-11. The state concedes that appellant‘s misdemeanor theft conviсtion was solely based on his conduct with respect to Biggs, and appellant was ordered to pay $824.46 in restitution to Biggs. However, for a person tо be convicted of misdemeanor theft, the value of the property or services deprived must be less than
{¶22} As this court has previously recognizеd, “restitution can only be ordered for those acts that constitute the crime for which the defendant has been convicted and sentenced.” State v. Smith, Butler App. No. CA2004-11-275, 2005-Ohio-6551, ¶25, citing State v. Hafer, 144 Ohio App.3d 345, 348, 2001-Ohio-2412. Since appellant was convicted of misdemeanor theft, the amount of restitution to be paid to the victim of the offense cannot exceed $500. Miller at ¶11. Accordingly, we vacate the restitution award to Biggs and remand this matter to the trial court for further proceedings in accordancе with this opinion.
{¶23} Appellant‘s third assignment of error is overruled in part and sustained in part.
{¶24} The judgment of the trial court is affirmed in part, reversed in part, and remanded.
YOUNG, P.J., and POWELL, J., concur.