STATE OF OHIO v. ERIC A. HENSLEE
Case No. CT2017-0009
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 10, 2017
2017-Ohio-5786
Hon. William B. Hoffman, P.J.; Hon. John W. Wise, J.; Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2016-0375; JUDGMENT: Affirmed
For Plaintiff-Appellee
GERALD V. ANDERSON II
27 North Fifth Street
P. O. Box 189
Zanesville, OH 43702-0189
For Defendant-Appellant
TONY A. CLYMER
140 Matthias Drive
Columbus, OH 43224
ΟΡΙΝΙΟΝ
{¶ 1} Plaintiff-Appellant, Eric A. Henslee appeals the February 2, 2017 judgment of conviction and sentence of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In the early morning hours of September 14, 2016, appellant and a co-defendant broke into a Muskingum County business. The two removed a safe, which they broke open at a second location, taking the more than $5,000.00 in cash they discovered inside.
{¶ 3} The Muskingum County Grand Jury later returned an indictment charging appellant with one count of breaking and entering in violation of
{¶ 4} On December 19, 2016, following plea negotiations with the state, appellant pled guilty as charged for a joint recommendation of community control and restitution. The trial court accepted appellant‘s pleas and ordered a presentence investigation and a drug and alcohol evaluation.
{¶ 5} While being held at the jail pending the presentence investigation and evaluations, appellant accrued seven behavioral infractions. On the day of sentencing, the trial court rejected the recommendation for community control, sentenced appellant to nine months incarceration for each charge, and ordered appellant to serve the sentences concurrently. The trial court made no findings before imposing a prison
{¶ 6} Appellant filed an appeal and the matter is now before this court for consideration. The sole assignment of error is as follows:
I
{¶ 7} THE TRIAL COURT ERRED BY NOT CONSIDERING THE PRINCIPLES AND PURPOSES OF SENTENCING WHICH INCLUDES UTILIZING THE MINIMUM SANCTIONS AVAILABLE TO PUNISH APPELLANT RENDERING THE SENTENCE CONTRARY TO LAW.”
{¶ 8} Preliminarily, we note this case is before this court on the accelerated calendar which is governed by
{¶ 9} One of the important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts, and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983).
{¶ 10} This appeal shall be considered in accordance with the aforementioned rules.
{¶ 11} When reviewing felony sentences we apply the standard of review set forth in
{¶ 12} Appellant failed to object at his sentencing hearing and therefore has forfeited all but plain error. He argues that the trial court committed plain error because 1) it failed to consider the purposes and principals of sentencing required by
{¶ 13} To recognize plain error, we must find obvious error affecting such substantial rights that the error was outcome-determinative. State v. Noling, 98 Ohio St.3d 44, 781 N.E.2d 88, 2002-Ohio-7044, ¶ 62. In the context of sentencing, outcome-determinative means an error that resulted in a sentence which is contrary to law. State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17 N.E.3d 528 ¶ 23, Justice Lanzinger, concurring in part and dissenting in part,
{¶ 14} As to appellant‘s first argument, while there is a mandatory duty for the trial court to consider the relevant statutory factors under
{¶ 15} Next, appellant argues the trial court committed plain error by failing to make findings required by
{¶ 16} Appellant pled guilty to one fourth degree felony and two fifth degree felonies.
{¶ 17} The presumption of a community-control sanction, however, is subject to the exceptions listed in
{¶ 18} The record reflects that appellant had no prior record, and the most serious charge against him at the time of sentencing was a felony of the fourth or fifth degree. The trial court did not contact the department of rehabilitation to request notification of available programing for appellant, but rather requested that the probation department conduct a drug and alcohol evaluation. Appellant was also evaluated by Appalachian Behavioral Healthcare. Transcript of plea at 15. Contacting community based control facilities directly to inquire about placement for an offender is sufficient to meet the requirements of
{¶ 19} At sentencing, the trial court rejected the plea agreement and sentenced appellant to a term of incarceration:
THE COURT: All right. Thank you. I‘ll note for the record we‘re dealing with three separate counts; count one, breaking and entering, a felony of the fifth degree; count two, theft, $1000 or more but less than $7,500, a felony of the fifth degree; count three, safecracking, a felony of the fourth degree.
There‘s a joint recommendation you be placed on community control, pay restitution of $5,316.
Also note for the record, I received the presentence investigation. I‘ve reviewed it thoroughly. I‘ll also note I received the statement/report from Appalachian Behavioral Healthcare, which you were sent based on your – your actions and behaviors in Muskingum County Jail. Also note I received all of the – the – shouldn‘t say all, but I received reports through the Muskingum County Jail on one, two, three, four, five – six or seven different occasions where there‘s been issues with your behavior.
You would agree with that, wouldn‘t you Mr. Henslee?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You didn‘t act appropriately in Appalachian Behavioral Health or at the jail, would you agree?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Based upon that, I‘m not inclined to follow the State‘s recommendation.
Therefore, on count one, you‘ll be sentenced to nine months in prison; on count two, you‘ll be sentenced to nine months in prison; and on
count three, you‘ll be sentenced to nine months in prison. All those terms to run concurrently, for an aggregate prison sentence of nine months.
You‘ll be ordered to pay court costs in this matter. You‘ll be given credit for 85 days of time served. You are ordered to pay restitution in the amount of $5,316.
{¶ 20} The trial court indicated its review of the presentence investigation, which is contained in the record before us. The report indicates appellant does not meet the basic requirements for admission to a community corrections center or residential treatment. Because there was no appropriate placement for appellant, the trial court was therefore permitted to exercise its discretion to sentence appellant to a term of incarceration pursuant to
{¶ 21} We therefore find the record supports the trial court‘s imposition of a prison sentence and the sentence is not contrary to law.1 Appellant‘s sole assignment of error is overruled.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/sg 609