State v. K.W.State v. K.W.
Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public Defender, for appellant.
DECISION AND JUDGMENT
SINGER, J.
{¶ 1} Appellant, K.W., Jr., appeals his sentence from the August 5, 2016 judgment of the Erie County Court of Common Pleas, in which he was sentenced to two concurrent prison terms of seven years for felonious assault in violation of
Assignment of Error
{¶ 2} Appellant sets forth the following assignment of error:
1) The trial court erred when it sentenced K.W., Jr. to seven years in prison for felonious assault and participating in a criminal gang, because that sentence is not supported by the record in this case, in violation of
R.C. 2953.08(G) and2929.11(A) .
Facts
{¶ 3} Appellant was charged with aggravated robbery, felonious assault, and two charges of attempted murder, all with specifications of participating in a criminal gang. Appellant was also charged under
{¶ 4} These charges stemmed from an incident that occurred at a motel when appellant was 15 years old. Appellant and his then 19-year-old friend assaulted the victim, another minor, after a party. The victim suffered serious injuries, including a broken jaw that required surgery.
{¶ 5} Based on police reports, appellant and his co-defendant were members of the Savage Gang. The reports stated appellant and his co-defendant performed what they called “savage calls,” which were assaults on individuals to “toughen them up.” They also bragged about performing other crimes as participants in the gang. After the assault
{¶ 6} Following his arrest, appellant expressed remorse for his actions and a desire to change. His mother even testified to how his time in the detention center matured him and changed him. She stated how he was no longer “the trouble making thug” his criminal record reflected. Appellant has never before been charged with a felony, though he does have a juvenile record that stretches dating back to 2011.
{¶ 7} During the hearing held for a motion to transfer pursuant to
{¶ 8} Appellant argued for a mitigated sentence based on the fact that a 15 year old can be easily influenced by an older individual, the fact that appellant showed remorse and a desire to make up for what he had done, and that despite his juvenile record there had been no real attempts to rehabilitate appellant and thus recidivism was not highly likely. The trial court sentenced appellant to seven years for both crimes to be ran concurrently, and appellant now timely appeals.
{¶ 9} In his sole assigned error, appellant argues the trial court erred in imposing an aggregate prison term of seven years. Appellee contends the record amply supports the sentence under the relevant statutes and that the sentence is not contrary to law.
{¶ 10} We review felony sentences under a two-prong approach.
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant; or (b) That the sentence is otherwise contrary to law.
{¶ 11} See State v. Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, ¶ 6; see also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
{¶ 12} “[A] sentence was not clearly and convincingly contrary to law where the trial court considered the purposes and principles of sentencing under
{¶ 14} Here, appellant was sentenced to two concurrent prison terms of seven years for both second-degree felony convictions. These prison terms are within the statutory range. See
{¶ 15}
{¶ 16} In carrying out its obligations to impose a sentence consistent with the purposes and principles of sentencing, the trial court must weigh the factors indicating that the offender‘s conduct is more serious than conduct normally constituting the offense under
{¶ 17} We further note that a sentencing court is not required to use any specific language or make specific findings to demonstrate that it considered the applicable sentencing criteria. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000); State v. Thebeau, 6th Dist. Ottawa No. OT-14-017, 2014-Ohio-5598, ¶ 16.
{¶ 18} Here, the court expressly stated in open court that it considered
All right. The Court states for the record that it‘s cognizant of the overriding purposes and principles of felony sentencing. The Court does adhere to those purposes and principles. In passing sentence, the Court attempts to achieve those purposes, and make the sentence reflect the seriousness of the Defendant‘s conduct, and it‘s (sic) impact on the victim in this case, be consistent with similar crimes and similarly situated Defendants, and not base the sentence on race, ethnicity, gender, or religion.
The Court also must weigh what are called sentencing factors, those being seriousness factors, as well as what are called recidivism factors, factors making it either more likely or less likely that you would continue
on with a course of criminal conduct. The Court has weighed those factors pursuant to 2929.11(B) , (C), (D), and (E) of the Ohio Revised Code.
{¶ 19} Moreover, the sentencing entry reflects as such:
The Court has considered the record, oral statements, any victim impact statement and presentence investigation report, as well as the principles and purposes of sentencing under
Ohio Revised Code §2929.11 , and has balanced the seriousness and recidivism factors ofOhio Revised Code §2929.12 .
{¶ 20} In light of the trial court‘s statements at the sentencing hearing, as well as the language contained in the sentencing entry, we conclude that the court complied with its obligations under
{¶ 21} Furthermore, our independent review of the record reveals the aggregate sentence imposed was amply supported.
{¶ 22} Specifically, the victim was hospitalized due to the felonious assault, suffering physically, psychologically, and economically in order to overcome his injuries. Further, we find appellant had numerous past convictions showing a potential for recidivism, and that shortly after committing the heinous crime for which he was charged, appellant was riding his bike around the hospital taunting the victim. Factoring in these findings, we hold the record supports the imposed sentence and the sentence is not contrary to law.
{¶ 23} Accordingly, appellant‘s sole assignment of error is not well-taken.
{¶ 24} The judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
James D. Jensen, P.J. JUDGE
CONCUR.
JUDGE