State v. KienzleState v. Kienzle
DECISION AND JOURNAL ENTRY
This сause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{¶ 1} Appеllant, Kenneth Kienzle, appeals from the judgment of the Lorain County Court of Common Pleas. This Court affirms.
I.
{¶ 2} On August 26, 2004, Appellant was indicted on one count оf having a weapon while under disability, in violation of
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A NON-MINIMUM SENTENCE ON APPELLANT, AS SUCH SENTENCE IS CONTRARY TO LAW AND NOT SUPPORTED BY THE RECORD.”
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN IMPOSING A TERM OF INCARCERATION THAT IS NOT PROPORTIONATE TO SIMILARLY SITUATED OFFENDERS.”
{¶ 3} In Appellant‘s assignments of error, he contends that the trial court erred in imposing a non-minimum sentence on a first time felony offender that was disproportionate to other similarly situated offenders. We disagree.
{¶ 4} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Court found thаt Ohio‘s sentencing structure was unconstitutional to the extent that it required judicial fact-finding. Id. at paragraphs one through seven of the syllabus. In constructing a remedy, the Court excised the portions of the statute it found to offend the Sixth Amendment and thereby granted full discretion to trial court
{¶ 5} Additionally, Foster altered this Court‘s standard of review which was previously a clear and convincing errоr standard. State v. Windham, 9th Dist. No. 05CA0033, 2006-Ohio-1544, at ¶ 11. Accordingly, this Court reviews Appellant‘s sentence utilizing an abuse of discretion standard. Id. at ¶ 12. An abuse of discretion is more than an error in judgment or law; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Furthermore, when applying the аbuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621.
{¶ 6} The Foster Court noted that “there is no mandate for judiсial fact-finding in the general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster, supra, at ¶ 42. Moreover, post Foster, it is axiomatic that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph 7 of the syllabus. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing dеcisions. The trial
{¶ 7}
“(A) A court that sentences an offendеr for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing cоurt shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
“(B) A sentence imposed for a felony shall be reasonably calculated tо achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriоusness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offendеrs.”
Appellant was convicted of a third degree felony. Accordingly, the trial court was permitted to utilize its discretion to sentence him within the range of one to five years incarceration for the third degree felony conviction.
{¶ 8} Upon review, this Court cannot say that the trial court аbused its discretion in sentencing Appellant to five years incarceration. The record reflects that Appellant had four adjudications of delinquency and fourteen prior adult convictions.
“I‘m imposing the maximum sentence today, and I‘m doing that based on your prior record, the fact that this involves a weapon, and, in my view, the maximum sentence is needed to adequately protect the public.”
{¶ 9} Accordingly, based upon a consideration of the factors in
{¶ 10} We need not address Appellant‘s argument that the trial court erred in imposing a term of incarceration that is not prоportionate to similarly situated offenders as Appellant has forfeited this argument for appeal. In the instant case, Appellant failed to raise this argument at the original sentencing hearing held on January 27, 2006. Due to Appellant‘s failure to raise this argument below, he has deprived the trial court of the opportunity to correct the alleged errors in the first instance and has thereby forfeited this argument on appeal. See State v. Quine, 9th Dist. No. 29068, 2002-Ohio-6987, at ¶ 7 (finding that Appellant‘s failure to object to his sentence on the ground that his sentence was inconsistent with sentences imposed for similar crimes committed by similar offenders generally constitutes waiver of this argument).
{¶ 11} An exception to the forfeiture doctrine exists, however, if рlain error is found. In re Etter (1998), 134 Ohio App.3d 484, 492; State v. Hairston, 9th Dist. No. 05CA008768, 2006-Ohio-4925, at ¶ 9, quoting State v. McKee (2001), 91 Ohio St.3d 292, 299 fn. 3 (Cook, J., dissenting);
{¶ 12} Appellant‘s assignments of error are overruled.
III.
{¶ 13} Appellant‘s assignments of error are overruled. The judgment of the Lorain County Court of Cоmmon Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out оf this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of
Costs taxed to Appellant. DICKINSON, J., CONCURS
Concurrence Opinion
{¶ 14} I concur in judgment with the majority in all respеcts except in regard to appellant‘s alleged forfeiture. A defendant is not required to object to his sentence in order to prеserve any errors with the sentence for appeal. State v. Reid, 8th Dist. No. 83206, 2004-Ohio-2018, at ¶ 42. See, also, State v. Barnes, 9th Dist. No. 06CA009034, 2007-Ohio-2460, at ¶ 10 (Carr, J., concurring, in part, and dissenting, in part).
(Reece, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.)