State v. HobbyState v. Hobby
{¶1} Appellant Jason R. Hobby appeals his sentence еntered in the Ashland County Court of Common Pleas on one count of having weapons while under disability and one count of receiving stolen property following a guilty plea.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The undisputed facts and procedural history are as follows:
{¶4} On March 21, 2011, Sergeant Tim Kitts of the Ashland County Sheriff‘s Office was dispatched to a residence on County Road 1175 in Ashlаnd, Ohio, to investigate the theft of two Husqvarna chainsaws and one 22-caliber Marlin Magnum rifle from a garage.
{¶5} An investigation into this theft and several other area thefts involving lawn equipment, conducted by Deputy Jason Martin of the Ashland County Sheriff‘s Office, revealed that the primary perpetrators of these thefts were Defendant-Appellаnt Jason R. Hobby and William Hickerson.
{¶6} On April 28, 2011, a Court of Common Pleas of Ashland County, Ohio grand jury, charged Appellant with the following: one count of Having Weapons While Under Disability, in violation of
{¶8} Prior to trial and while Appellant was released on bond, a confidential informant working with Detective Brian Evans and Sergeant Donald Garrison of the Ashland Police Department made two (2) controlled purchases of cocaine from Appellant.
{¶9} Shortly thereafter, on May 26, 2011, the Ashland County Grand Jury charged Appellant with two counts of Trafficking In Cocaine, in violation of
{¶10} Appellant subsequently entered pleas of not guilty to these two additional charges, and the trial court set the matter for trial on August 9, 2011.
{¶11} On June 28, 2011, the State of Ohio, pursuant to Ohio Criminal Rule 13, filed a motion to join the two cases and all five charges brought against Appellant, as well as to continue the trial set for July 12, 2011.
{¶12} By Judgment Entry file July 12, 2011, the trial court granted the State‘s motion, ordered that the indictment issued in Case No. 11-CRI-039 be joined for trial with the indictment issued in Case No. 11-CRI-051, and scheduled the combined matter for trial on August 9, 2011.
{¶13} On August 1, 2011, pursuant to a plea agreement entered into with the State, Appellant agreed to the following: (1) with regards to Case No. 11-CRI-039, to enter pleas of guilty to Count One, Having Weapons While Under Disability, in violation of
{¶14} In exchange, the State agreed to dismiss all remaining charges in Case Nos. 11-CRI-039 and 11-CRI-051 against Appellant. (Id. at 4-5.)
{¶15} After explaining to Appellant the nature of the charges against him, the effect of a guilty plea, Appellant‘s constitutional rights, and the maximum penalty provided by law for Appellant‘s offenses, the trial court accepted Appellant‘s pleas of guilty and found Appellant guilty of the two remaining charges brought against him. (Id. at 7-8).
{¶16} At sentencing, the trial court, after considering the provisions of Ohio Revised Code Chapter 2929, the circumstances of the offenses committed, the information cоntained in the pre-sentence investigation, and the information furnished by the parties to the case, sentenced Appellant to the following: (1) as to Count One, Having Weapons While Under Disability, in violation of
{¶17} The trial court further ordered that Appellant: (1) receive credit for the thirty-one (31) days Appellant spent in the Ashland County Jail; and (2) pay Four
{¶18} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶19} “I. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO, WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF THE TRIAL COURT’S DISCRETION.
{¶20} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO, IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES”
I.
{¶21} In his First Assignment of Error, Appellant argues that the consecutive sentence in this matter was either contrary to law or an abuse of discretion. We disagree.
{¶22} Recently in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470 as it relates to the remaining sentencing stаtutes and appellate review of felony sentencing. See, State v. Snyder, 5th Dist. No. 2008–CA–25, 2080–Ohio–6709, 2008 WL 5265826.
{¶23} In Kalish, the Court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the judicial fact-finding portions of
{¶24} In Kalish, the Court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the judicial fact-finding portions of
{¶25} “Thus, a record after Foster may be silent as to the judiciаl findings that appellate courts were originally meant to review under
{¶26} “Thus, despite the fact that
{¶27} Therefore, Kalish holds that, in reviewing felony sentences and applying Foster to the remaining sentencing statutes, the appellate courts must use 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 in imposing the term of imprisonment shall be reviewed under an abuse of discretion standard.” Kalish at ¶ 4, State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶28} The Supreme Court held, in Kalish, that the trial court‘s sentencing decision was not contrary to law. “The trial court expressly stated that it considered the purposes and principles of
{¶29} The Court further held that the trial court “gave careful and substantial deliberation to the relevant statutory considerations” and that there was “nothing in the record to suggest that the court‘s decision was unreasonable, arbitrary, or unconscionable.” Kalish at ¶ 20.
{¶30} In the case sub judice, Appellant was convicted of Having Weapons While Under Disability, a felony of the third degree, and Receiving Stolen Property, a felony of the fifth degree. For a violation of a felony of the third degree, the potential sentence
{¶31} The trial court imposed a sentence of three (3) years in prison on the Having Weapons While Under Disability charge and twelve (12) months on the Receiving Stolen Property charge, to be served consecutively.
{¶32} Upon review, we find that the trial court‘s sentencing on the charge complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in
{¶33} Having determined that the sentence is not contrary to law we must now review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v. Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the triаl court gave careful and substantial deliberation to the relevant statutory considerations.
{¶34} Under Ohio law, judicial fact-finding is no longer required before a court imposes consecutive or maximum prison terms. See State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470; State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1. Instead, the trial court is vested with discretion to impose a prison term within the statutory range. See Mathis, at ¶ 36. In exercising its discretion, the trial court
{¶35} There is no requirement in
{¶36} Where the record lacks sufficient data to justify the sentence, the court may well abuse its discretion by imposing that sentence without a suitable explanation. Where the record adequately justifies the sentence imposed, the court need not recite
{¶37} Accordingly, appellate courts can find an “abuse of discretion” whеre the record establishes that a trial judge refused or failed to consider statutory sentencing factors. Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342 (1st Dist.1978). An “abuse of discretion” has also been found where a sentence is greatly excessive under traditional concepts of justice or is manifestly disproportionate to the crime or the defendant. Woosley v. United States, 478 F.2d 139, 147 (8th Cir.1973). The imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject to review. Woosley, supra at 143–145. Where the severity of the sentence shocks the judicial conscience or greatly exceeds penalties usually exacted for similar offenses or defendants, and the record fails to justify and the trial court fails to еxplain the imposition of the sentence, the appellate courts can reverse the sentence. Woosley, supra at 147. This by no means is an exhaustive or exclusive list of the circumstances under which an appellate court may find that the trial court abused its discretion in the imposition of sentence in a particular case. State v. Firouzmandi, supra.
{¶38} In the instant case, there is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of Appellant‘s
{¶39} Here, the trial court conducted a sentencing hearing in open court. The trial court considered the information provided by the parties; the fact that eight were different victims; the overriding purposes of felony sentencing; the statutory factors set forth in
{¶40} From our review, it appears to this Court that the trial court‘s statements at the sentencing hearing were guided by the overriding purposes of felony sentencing to protect the public from future crime by the offender and others and to punish the offender.
{¶41} Based on the record, the transcript оf the sentencing hearing and the subsequent judgment entry, this Court cannot find that the trial court acted unreasonably, arbitrarily, or unconscionably, or that the trial court violated Appellant’s rights to due process under the Ohio and United States Constitutions in its sentencing of Appellant. Further, the sentence in this case is not so grossly disproportionate to the offense as to shock the sense of justice in the community.
{¶42} Further, the Supreme Court of Ohio held in State v. Hodge, 128 Ohio St.3d 1, 2010–Ohio–6320:
{¶43} “For all the foregoing reasons, we hold that the decision of the United States Supreme Court in Oregon v. Ice does not revive Ohio‘s former consecutive-sentencing statutory provisions,
R.C. 2929.14(E)(4) and2929.41(A) , which were held unconstitutional in State v. Foster. Because the statutory provisions are not revived, trial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new legislation requiring that findings be made.{¶44} The trial court in this case did not err in imposing consecutive sentences without applying
R.C. 2929.14(E)(4) and2929.41(A) , and defendants such as Hodge, who were sentenced without application of the statutes are not entitled to resentencing. Id. at ¶ 39–40. See, State v. Fry, 5th Dist. No. 10CAA090068, 2011–Ohio–2022 at ¶ 16–17.”
{¶45} Upon review, we find neither error as a matter of law in the trial court sentencing Appellant to consecutive sentences nor any abuse of discretion.
{¶46} Appellant’s First Assignment of Error is overruled.
II.
{¶47} In his Second Assignment of Error, Appellant argues that the sentence imposed by the trial court creates an unnecessary burden on State resources. We disagree.
{¶48} In this case, Appellant argues that essentially the trial court erred by not complying with the new sentencing law, House Bill 86, which did not come into effect until September 30, 2011, two days after Appellant was sentenced. Appellant urges this Court to consider the purposes of the new sentencing reforms in determining whether
{¶49} In State v. Ober, Second Dist No. 97CA0019, 1997 WL 624811 (Oct. 10, 1997), the Second District considered this same issue. In rejecting the argument, the court stated “Ober is correct that the ‘sentence shall not impose an unnecessary burden on state or local government resources.’
{¶50} The Ober court concluded, “[a]lthough resource burdens may be a relevant sentencing criterion,
{¶52} Further,
{¶53} Appellant’s Second Assignment of Error is overruled.
{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas, Ashland County, Ohio, is affirmed
By: Wise, J.
Delaney, P. J., and
Hoffman, J., concur.
JUDGES
JWW/d 0510
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES