STATE OF OHIO v. JAMES J. KILMIRE
C.A. Nos. 27319, 27320
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 25, 2015
[Cite as State v. Kilmire, 2015-Ohio-665.]
CARR, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR 13 04 0986, CR 13 06 1584
Dated: February 25, 2015
CARR, Presiding Judge.
{¶1} Appellant, James Kilmire, appeals his sentence imposed in the Summit County Court of Common Pleas. This Court affirms but remands the matter for the issuance of a nunc pro tunc entry in case CR-2013-06-1584 (“case two“) to correct a clerical error.
I.
{¶2} Kilmire was initially indicted in April 2013, in case CR-2013-04-0986 (“case one“) оn one count of vandalism, one count of possessing criminal tools, and one count of breaking and entering. A supplemental indictment was issued in June 2013, adding counts 4 through 17. Each was for breaking and entering. Some offenses occurred prior to April 2013, while others occurred while Kilmire was out on bond оn case one. A second supplement to the indictment was filed in June 2013, adding an additional count of breaking and entering. An additional two counts of breaking and entering were added in July 2013, bringing the total counts
{¶3} While it does not appear the cases were ever formally consolidated below, they were heard by the same trial judge and were addressed together at the same plea and sentencing hearings. In August 2013, Kilmire pleaded guilty to all counts in both cases and the matter was referred fоr a presentence investigation report (“PSI“). In October 2013, the trial court sentenced Kilmire to 6 months in prison on each count. The trial court ordered the sentences in counts 1, 2, and 3 in case one to be served concurrently with each other but consecutively to the remaining sentences. The court ordered the sentences in count 4 through 18 from case one to run consecutively to each other and consecutively to the remaining sentences. The trial court ordered that counts 19 and 20 from case one be served concurrently with count 18. Finally, the trial court ordered that the sentence in case two run consecutively to the sentences in case one. Thus, the trial court sentenced Kilmire to an aggregate prison sentence of 8.5 years.1
{¶4} In April 2014, Kilmire filed a motion for delayed appeal in both cases, which this Court granted. Subsequently, he also filеd a motion to consolidate the appeals, which this Court also granted. Kilmire has raised two assignments of error for our review, which we will address out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DID NOT FOLLOW THE STATUTORY SENTENCING GUIDELINES UNDER
R.C. 2929.11 FOR NON-VIOLENT FIFTH DEGREE FELONIES.
{¶6} “This Court applies a two-step approach in reviewing criminal sentences: ‘The first step is to determine whether the sentence is contrary to law. The second step is to determine whether the court exercised proper discretion in imposing the term of imprisonment.‘” State v. Culver, 9th Dist. Summit No. 26945, 2014-Ohio-681, ¶ 42, quoting State v. Smith, 9th Dist. Medina No. 11CA0115-M, 2012-Ohio-2558, ¶ 3, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4, 26.
{¶7} The Supreme Court of Ohio has held that “[t]rial courts have full discretion to impose a prison sentence within the [applicable] statutory range [.]” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. “‘This Court сontinues to recognize that a trial court, after proper adherence to applicable rules and statutes, retains discretion in the imposition of sentences.‘” State v. Maynard, 9th Dist. Medina No. 13CA0045-M, 2014-Ohio-3978, ¶ 5, quoting State v. Jordan, 9th Dist. Summit No. 26598, 2013-Ohio-4172, ¶ 30, citing State v. Weems, 9th Dist. Summit No. 26532, 2013-Ohio-2673, ¶ 18-19. In exercising that discretion, “‘[a] court must carefully consider the statutes that apply to every felony case[,] * * * includ[ing]
{¶8} The trial court imposed a 6-month sentence for each of the 21 counts to which Kilmire pleaded guilty. Each count was a felony of the fifth degree.
{¶9} Prior to imposing sentence, the trial court spent a fair amount of time discussing the case and Kilmire‘s background. The trial court was аware that these two cases alone involved Kilmire breaking into well over a dozen different businesses between October 2012 and May 2013. Additionally, the trial court pointed out that many of Kilmire‘s charges arose during a time when he was out on bond awaiting trial under the charges initially filed in case one. The trial court acknowledged Kilmire‘s difficult childhood and the fact that he was a “daily crack and marijuana user[.]” However, the trial court also found that Kilmire had done little to help himself. The trial court discussed Kilmire‘s lengthy criminal history, pointing out that he had 12 juvenile referrals, 20 prior convictions, numerous other arrests, and had served 2 prior prison terms. The trial court noted the presence of at least two factors supported the imposition of a prison term: (1) Kilmire‘s prior prison terms; and (2) the offenses committed while he was out on bond. See
{¶10} The trial court also discussed the issues of seriousness of the crimes and recidivism. See
{¶11} Given the foregoing, we cannot say that the trial court abused its discretion in sentencing Kilmire to prison. The record supports the trial court‘s findings and it is apparent that the trial court considered
{¶12} With respect to Kilmire‘s contention that the trial court committed reversible error in sеntencing him to an 8.5 year aggregate term for the 21 counts when the maximum prison term authorized for a single fifth-degree felony is only 12 months, we find no merit in this contention. See State v. Graham, 2d Dist. Montgomery No. 25934, 2014-Ohio-4250, ¶ 32 (“[C]onsecutive sentences for multiple convictions certainly may exceed the maximum sentence for the most serious offensе.“) (Internal quotations and citation omitted.). Kilmire has cited no law that would support his proposition. See App.R. 16(A)(7). The heart of Kilmire‘s argument rests in the fact that he was sentenced to several consecutive prison terms for many of the offenses; however, we will address his argument concеrning consecutive sentences below.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES.
{¶14} Kilmire argues in his first assignment of error that the trial court erred in imposing consecutive sentences.
{¶15}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison tеrms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect thе public from future crime by the offender.
“With exceptions not relevant here, if the trial court does not make the factual findings required by
{¶17} In the instant matter, the trial court made the required
{¶18} While the trial court may not have used the precise language of the statute at all times, it is clear from the record that the trial court undertook the appropriate analysis and made the requisite findings. See Bonnell at ¶ 29. With rеspect to case one, the trial court did incorporate these findings into its journal entry. However, the trial court did not incorporate those same findings into its journal entry resolving case two. See State v. Hill, 7th Dist. Carroll No. 13 CA 892, 2014-Ohio-1965, ¶ 20 (“Pre-Foster, appellate courts consistently stated that consecutive sentencing findings are rеquired when the sentences are imposed in separate cases. * * * The wording of
{¶19} The trial court‘s inadvertent failure to include the
{¶20} Kilmire also appears to assert that the trial court‘s finding that consecutive sentencing is not disproportionate to the seriousness of the crimes and the danger he poses to the public is not supported by the record. After reviewing the record, we cannot say the trial court abused its discretion in making this finding.
{¶21} The trial court discussed Kilmire‘s lengthy criminal history pointing out that, “when [Kilmire‘s] not in prison[,] [he‘s] been actively committing crimes, victimizing people in the community.” The trial court noted that Kilmire‘s prior prisons terms, which included a four-
III.
{¶22} Kilmire‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed, but we remand the matter for the trial court to issue a nunc pro tunc entry in case two to incorporate the
Judgment affirmed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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 Appeals at which time the
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
JASON D. WALLACE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.