State v. LeasureState v. Leasure
For Plaintiff-Appellee
KAREN DESANTO KELLOGG
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, OH 44805
For Defendant-Appellant
DAVID R. STIMPERT
10 East Main Street
Ashland, OH 44805
{1} On May 24, 2011, appellant Adrian M. Leasure entered a plea of guilty to a charge of aggravated possession of drugs, in violation of
{2} At a subsequent sentencing hearing, the trial court, after considering (1) statements from appellant and his legal counsel; (2) the overriding purposes of felony sentencing; (3) the statutory factors set forth in
{3} Appellant has timely appealed raising the following assignments of error:
{4} “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.
{5} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO, IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.”
{6} In his First Assignment of Error appellant argues that his consecutive sentences in this case are contrary to the law and the trial court abused its discretion in sentencing him to a 10-month prison term. Appellant maintains in his Second Assignment of Error the imposition of a ten-month prison sentence results in an unnecessary burden on state resources. We disagree.
{7} At the outset, we note there is no constitutional right to an appellate review of a criminal sentence. Moffitt v. Ross, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341(1974); McKane v. Durston, 152 U.S. 684, 687, 14 S.Ct. 913. 917(1894); State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668(1997); State v. Firouzmandi, 5th Dist No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175. An individual has no substantive right to a particular sentence within the range authorized by statute. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d 393 (1977); State v. Goggans, Delaware App. No. 2006-CA-07-0051, 2007-Ohio-1433, 2007 WL 914866, ¶ 28. In other words “[t]he sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction ... It is not the duration or severity of this sentence that renders it constitutionally invalid....” Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690(1948).
{8} 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
{9} 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
{10} 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
{11} “Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under
{12} “Thus, despite the fact that
{13} 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.
{14} 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
{15} In the case at bar, appellant was convicted of a felony of the fifth degree. For a violation of a felony of the fifth degree, the potential sentence that a court can impose is six, seven, eight, nine, ten, eleven, or twelve months. Appellant was sentenced to a sentence of ten months.
{16} 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 and appellant agrees that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in
{17} 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 trial court gave careful and substantial deliberation to the relevant statutory considerations.
{18} 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
{19} There is no requirement in
{20} 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
{21} Accordingly, appellate courts can find an “abuse of discretion” where 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 explain 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.
{22} In the case at bar, 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
{23} In the case at bar, the trial court conducted a sentencing hearing in open court. Appellant concedes that the trial court considered statements from appellant and his legal counsel; the overriding purposes of felony sentencing; the statutory factors set forth in
{24} 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.
{25} Based on the record, the transcript of 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 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.
{26} In his Second Assignment of Error, appellant contends that his sentence violates the general assembly‘s intent to minimize the unnecessary burden on state and local government resources. Specifically, appellant argues that essentially the trial court
{27} 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.’
{28} The Ober court concluded, “[a]lthough resource burdens may be a relevant sentencing criterion,
{29} Several other appellate courts, including our own, considering these issues have reached the same conclusion. See, e.g., State v. Hyland, Butler App. No. CA2005-05-103, 2006-Ohio-339, 2006 WL 215052, ¶ 32; State v. Brooks, 10th Dist. No. 97APA-11-1543, 1998 WL 514111(Aug. 18, 1998); State v. Stewart, 8th Dist. No. 74691, 1999 WL 126940 (Mar. 4, 1999); State v. Fox, 3rd Dist. No. 16-2000-17, 2001 WL 218433( Mar. 6, 2001); State v. Miller, 5th Dist. No. 04-COA-003, 2004-Ohio-4636, 2004 WL 1945548. We agree with the reasoning of the Ober court and other courts considering this issue and find no merit to appellant‘s argument.
{30} Further,
{31} Accordingly, for all of the reasons cited above, we overrule appellant‘s First and Second Assignments of Error in their entirety.
By Gwin, J.,
Delaney, P.J., and
Hoffman, J., concur
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Ashland County Court of Common Pleas is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN