State v. HinesState v. Hines
Teresa D. Schnittke, Lowell, Ohio, for Appellant.
James Schneider, Washington County Prosecuting Attorney, Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
McFarland, P.J.:
{¶1} This is an appeal from a Washington County Common Pleas Court conviction and sentence, issued after Appellant, Dakota Hines, pled guilty to one count of burglary, in violation of
FACTS
{¶2} On April 9, 2009, a complaint was filed in the Marietta Municipal Court charging Appellant one count of burglary, in violation of
{¶3} The record further includes the pre-sentence report which was ordered by the court prior to sentencing. The report details Appellant‘s extensive juvenile record, as well as the events giving rise to the unauthorized use of a motor vehicle charge while Appellant was out on bond on the pending burglary charge.
{¶4} Ultimately, the trial court sentenced Appellant to the maximum available term of imprisonment on the burglary charge, which was eighteen months. After sentencing, Appellant timely filed the current appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE MAXIMUM AVAILABLE PRISON, WHERE APPELLANT WAS AN EIGHTEEN YEAR OLD, WITH NO PRIOR ADULT RECORD.”
LEGAL ANALYSIS
{¶5} In his first assignment of error, Appellant argues the trial court erred and abused its discretion in sentencing him to the maximum term of imprisonment for his offense, considering that he was only eighteen years old and had no prior adult record. Appellant further contends that the sentence was not supported by the record. Specifically, Appellant argues
{¶6} We begin our analysis with the appropriate standard of review. As we noted in State v. Babcock, Washington App. No. 09CA14, 2009-Ohio-6600, “[i]n the wake of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, there has been considerable and continuing confusion over the proper standard of review in felony sentencing.” As set forth in Babcock, the Supreme Court of Ohio recently addressed the issue in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.3
{¶7} Under Kalish, appellate courts are required to apply a two-step approach when reviewing felony sentences. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in
{¶8} In the case sub judice, Appellant contends that one of the findings in the trial court‘s sentencing entry was not supported by the record. Appellant acknowledges that, post- Foster, trial courts are no longer required to make findings or state reasons for imposing maximum or more than the minimum sentences. However, Appellant argues that the trial court erred and abused its discretion in imposing maximum sentences when some of the findings that it did make were not supported by the record. Additionally, as set forth above, Appellant also contends that the trial court erred and abused its discretion in imposing a maximum sentence, arguing that Appellant did not commit the worst form of the offense and did not pose the greatest likelihood of committing future crimes.
“Whereupon the Court has considered the record of this case, the oral statements made this day, and the pre-sentence report, as well as the principles and purposes of sentencing pursuant to Ohio Revised Code Sections 2929.11 through 2929.19, and the Court then made the following determinations:
[A] The Court FINDS the following prison factors to be present:
(1) The defendant committed the offense while on probation through Washington County Juvenile Court.
[B] The Court FINDS there are no factors present that make this crime more serious than the norm.
[C] The Court FINDS there are no factors present that make this crime less serious than the norm.
[D] The Court FINDS the following factors present which make the Defendant more likely to recidivate:
(1) The defendant committed the offense while on probation through Washington County Juvenile Court;
(2) The defendant has prior juvenile criminal convictions: [list omitted]
(3) The defendant demonstrated a pattern of drug or alcohol abuse related to the offense and refuses to acknowledge the pattern or refuses treatment.
(4) The defendant failed to respond to past community control sanctions. [E] The Court FINDS that the following factor is present that makes this defendant less likely to recidivate:
(1) The defendant has no prior adult convictions.
[F] The Court has weighed the seriousness and recidivism factors and has considered the over-riding purposes of felony sentencing to protect the public from future crime by this offender and others, and the purpose to punish this offender, and has considered the need for incapacitating this offender and deterring the offender and others from future crime, and for rehabilitating the offender. Thereupon the Court FINDS that the sentence it is about to impose is reasonably calculated to achieve these purposes, and is commensurate with, and does not demean the seriousness of the offender‘s conduct, and its impact upon the victim, and is consistent with sentences imposed for similar crimes committed by similar offenders.
[G] The Court further FINDS that the Defendant is not amenable to community control sanctions.”
{¶10} We first note that the trial court sentenced Appellant to eighteen months imprisonment for one fourth degree felony count of burglary. Though this sentence constitutes the maximum sentence for the crime committed, it is within the statutory range. Further, the trial court
{¶11} We now turn to the second prong, whether or not the trial court abused its discretion in imposing the sentence. In this prong, we look at the specific factual finding of the trial court which is contested by Appellant. Appellant challenges the trial court‘s finding that Appellant demonstrated a pattern of drug or alcohol abuse related to the offense and refuses to acknowledge the pattern or refuses treatment. Contrary to Appellant‘s argument, there is sufficient evidence in the record to support the finding of the trial court.
{¶12} For instance, Appellant‘s history of drug and alcohol abuse is detailed in the pre-sentence investigation (PSI) report and indicates that Appellant‘s usage during his teenage years increased from weekly to daily and expanded from marijuana usage to Vicodin and Percocet. An assessment performed prior to sentencing indicates that Appellant was
{¶13} Accordingly, the trial court did not abuse its discretion in sentencing Appellant based upon this finding. Further, although it was no longer obligated to find, and, in fact, did not find, that Appellant‘s conduct constituted the worst form of the offense for purposes of imposing a maximum sentence, the record reflects that Appellant was originally charged with second degree burglary and that only through plea negotiations was Appellant permitted to plead guilty to second degree burglary. Thus, such a finding would have been supported by the record in this case. Further, with respect to Appellant‘s argument that he did not pose the greatest likelihood of committing future crimes, Appellant‘s past history of juvenile convictions indicates otherwise. Appellant argues that the fact that he had no prior adult convictions should mitigate in his favor; however, the record indicates that Appellant had only been eighteen for approximately three months when
{¶14} Because the findings by the trial court are supported by the information contained in the record and the pre-sentence report, we cannot conclude that the trial court abused its discretion in making these findings or in relying upon these findings in imposing the maximum sentence upon Appellant. Thus, Appellant‘s sole assignment of error is overruled. Accordingly, we affirm the decision of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J. and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.