State v. JickState v. Jick
For Plaintiff-Appellee: Attorney Lynn Maro, 7081 West Boulevard, Youngstown, OH 44512
For Defendant-Appellant: Attorney Douglas A. King, 91 W. Taggart Street, P.O. Box 85, East Palestine, OH 44413
DeGenaro, J.
{¶1} This timely appeal comes for consideration upon the record in the trial court, the parties’ briefs and their oral argument before this Court. Appellant, Justin Jick, appeals the April 28, 2008 decision of the Struthers Municipal Court that imposed two consecutive six-month sentences after accepting Jick‘s guilty plea to receiving stolen property, a first degree misdemeanor in violation of
{¶2} Jick contends that the trial court abused its discretion by imposing maximum and consecutive sentences. Jick also asserts that the trial court‘s decision was contrary to law because it did not properly consider the proportionality of the sentence to the crime, the purposes and principles of misdemeanor sentencing, or the unnecessary burden on government resources. The State counters that although Jick‘s arguments are meritless, this Court should nonetheless reverse as the trial court failed to provide Jick with the opportunity for allocution.
{¶3} Jick‘s failure to raise objections during sentencing waived the issues raised on appeal, absent plain error. Jick failed to demonstrate that the trial court committed an abuse of discretion, let alone plain error, by imposing maximum and consecutive sentences. The judgment of the trial court with regard to Jick‘s convictions is affirmed. However, due to the contravention of Jick‘s right to allocution, Jick‘s sentences are vacated and this case is remanded for resentencing.
Facts
{¶4} The record reflects that Jick was one of multiple people participating in the activities that lead up to the offenses. On January 12, 2008, the first victim‘s purse was stolen from her vehicle, which was parked in her garage. Though the victim‘s purse was found the following day, some of its contents were missing, including a cell phone, city prosecutor identification badge, and cash. On January 24, 2008, Jick was found to be in possession of the victim‘s cell phone. During that search, Jick was also found to be in possession of a second victim‘s credit cards.
{¶5} Jick was charged with one count of burglary, in violation of
{¶6} Jick‘s sentencing hearing was held on April 28, 2008. Prior to imposing the sentence, the trial court discussed the plea agreement with Jick in order to reconfirm that Jick‘s plea had been knowing, voluntary and intelligent. The trial court asked Jick‘s counsel if there was anything she wanted to say, in response to which counsel listed mitigating factors, requested concurrent sentencing, and requested a five week abeyance so that Jick could finish high school. The trial court did not ask Jick if he had anything to say on his own behalf before the sentence was imposed. The trial court discussed the possibility of Jick‘s graduation, and inquired into pending charges against Jick for a separate theft offense. The trial court then imposed a six month sentence for each of the two counts, and ordered that the sentences be served consecutively. The trial court did not utter any specific findings when explaining the sentences to be imposed. The trial court allowed Jick to remain on judicial release until the date of Jick‘s completion of high school.
Abuse of Discretion in Misdemeanor Sentencing
{¶7} Jick puts forth the following five assignments of error on appeal:
{¶8} “The trial court erred in imposing the maximum sentences on Defendant/Appellant.”
{¶9} “The trial court erred in imposing consecutive sentences upon Defendant/Appellant”
{¶10} “The Defendant/Appellant‘s sentence was not proportional relative to the Defendant‘s conduct leading to the charges and therefore the sentences are contrary to law.”
{¶11} “Defendant/Appellant‘s sentences are contrary to law as they do not serve the overriding purposes and principles of sentencing as expressed in ORC 2929.21.”
{¶12} “The trial court‘s imposition of maximum consecutive sentences in the
{¶13} Jick‘s five assignments of error will be addressed together due to the commonality of the arguments. Jick asserts that the trial court erred in sentencing because it failed to consider both the general and certain specific parts of the misdemeanor sentencing statutes,
{¶14} An appellate court reviews a misdemeanor sentence for abuse of discretion. State v. Reynolds, 7th Dist. No. 08 JE 9, 2009-Ohio-935, at ¶9. An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. Moreover, as Jick failed to raise issue with any of the trial court‘s findings or lack thereof during the sentencing hearing, he has waived appellate review of the matter, absent plain error. State v. Milliken, 7th Dist. No. 07 BE 37, 2009-Ohio-1019, at ¶27-29. Pursuant to
{¶15} Jick argues that the trial court must make some minimum indication that the sentences serve the principles and purposes of misdemeanor sentencing, pursuant to
{¶16} We note that the mandate of
{¶17}
{¶18} Pursuant to
{¶19}
{¶20} It is true that a trial court must consider the criteria of
{¶21} A misdemeanor of the first degree carries a maximum sentence of one hundred and eighty days.
{¶22} There is nothing apparent in the record indicating that the trial court failed to consider the criteria of
{¶23} Given that Jick‘s arguments rely solely on the absence of specific findings or statements by the trial court, and do not provide any affirmative showing that the trial court in fact did not consider the requisite statutory criteria, his arguments are meritless. Accordingly, the trial court‘s decision to impose maximum consecutive sentences was not an abuse of discretion, let alone plain error.
{¶24} The State puts forth the following proposition of law:
{¶25} “A misdemeanor sentence within the statutory permitted sentencing range and otherwise consistent with misdemeanor sentencing must nonetheless be reversed for resentencing when no right of allocution is afforded.”
{¶26} Although Jick does not raise the issue, the State has pointed out that the trial court did not afford Jick his right to allocution prior to sentencing, in contravention to the mandates of
{¶27} The common law right to allocution, codified in the Rules of Criminal Procedure, requires the following: “At the time of imposing sentence, the court shall do all of the following: * * * Afford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment.”
{¶28}
{¶29} In this case, the trial court did not ask Jick if he had anything to say on his own behalf before the trial court imposed the sentence. Jick did not get the opportunity to potentially express remorse or make any mitigating statements pertinent to his case. Jick did participate in the conversation between the trial court and counsel as to whether Jick was about to graduate from high school, though the context of the discussion was a request for an abeyance of the sentence, rather than an examination of Jick‘s impending
{¶30} The record indicates that the opportunities Jick had to speak with the trial court during his sentencing hearing did not amount to being afforded his right to allocution. The trial court failed to strictly comply with the mandate of
Conclusion
{¶31} Jick failed to point to anything on the record which rebutted the presumption that the trial court took into consideration all applicable misdemeanor sentencing statutes when arriving at its sentencing decision. The trial court therefore did not commit an abuse of discretion, let alone plain error, for the reasons argued by Jick. The judgment of the trial court with regard to Jick‘s convictions is affirmed. However, because the trial court failed to strictly comply with
Donofrio, J., concurs.
Waite, J., concurs.