2007 Ohio 6736 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 2} Procedural History
{¶ 3} On August 23, 2006, the Geauga County Grand Jury handed down a five count indictment against Mr. Lee, charging him with: two counts of burglary, one being a felony of the second degree, in violation of R.C.
{¶ 4} The charges stemmed from different incidents where Mr. Lee identified himself as a Trumbull County corrections officer and entered the homes of the victims, under the guise of working undercover, indicating that he was looking for escapees.
{¶ 5} Mr. Lee pled guilty to the lesser included offense of burglary, a felony of the third degree, in violation of R.C.
{¶ 6} At the sentencing hearing on January 11, 2007, defense counsel advised the court that until 1979, Mr. Lee led a law-abiding life. Then, following a divorce and after undergoing two hip surgeries in 2002, Mr. Lee started abusing crack cocaine, other drugs and alcohol. Defense counsel stated that Mr. Lee underwent a mental health evaluation and was found to be depressed. Defense counsel further advised the court that Mr. Lee has started to seek spirituality and drug counseling. Defense counsel asked the court to impose community control sanctions. Mr. Lee made a statement to the court expressing his remorse and stating that he did not intend to hurt anyone or to steal anything during the commission of the crimes. *3
{¶ 7} The court sentenced Mr. Lee to a five-year prison term on the third degree burglary charge, with up to three years post-release control, and to a $750 fine. The court also sentenced Mr. Lee to eighteen months each on the remaining two charges (burglary of the fourth degree and impersonating a peace officer), each sentence to be concurrently served. Mr. Lee filed a timely appeal, raising one assignment of error:
{¶ 8} "The trial court erred when it sentenced Raymond Lee to a maximum sentence of five years."
{¶ 9} Standard of Review Post-Foster
{¶ 10} In State v. Foster,
{¶ 11} 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),
{¶ 12} We recognize that although the abuse of discretion standard will govern most post-Foster sentencing appeals, there are certain, limited circumstances in which the clear and convincing standard that was left unexcised by Foster, pursuant to R.C.
{¶ 13} Since R.C.
{¶ 14} Review of Sentence
{¶ 15} Mr. Lee challenges the trial court's decision to impose on him the five-year maximum sentence for his third degree burglary conviction. Pursuant to R.C.
{¶ 16} In sentencing an offender for a felony conviction, pursuant to R.C.
{¶ 17} Pursuant to Foster, "[although a trial court is required to consider the seriousness and recidivism factors, the court does not `need to make specific findings on the record in order to evince the requisite consideration of all applicable seriousness and recidivism factors.'" State v. Lewis, 11th Dist. No. 2006-L-224,
{¶ 18} Mr. Lee contends that the trial court abused its discretion in sentencing him to the maximum sentence for his third-degree burglary, because it failed to consider the seriousness and recidivism factors under R.C.
{¶ 19} We disagree and find that the trial court properly considered and reviewed the factors set forth in R.C.
{¶ 20} The court was particularly troubled by the manner in which Mr. Lee entered the unsuspecting homes of the victims while acting under the guise of a correctional officer. The trial court stated: "I am looking at the seriousness, the recidivism, and what I consider to be a sinister pattern of behavior here of pretending to be someone, preying on the trust of these poor people out there in the countryside. When a cop comes to their door, their first instinct is to help him. And you used that trust and you abused that trust to actually enter their houses. And on one of them, Jean Giles is 80 some years old. She was traumatized by this incident."
{¶ 21} In its judgment entry, the court reiterated that prior to imposing its sentence, it considered the entire record, the pre-sentence investigation report, the *7
victim impact statements, the purposes and principles underlying sentencing as set forth in R.C.
{¶ 22} Mr. Lee's assignment of error is overruled.
{¶ 23} The judgment of the Geauga County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY OTOOLE, J., concurs in judgment only with Concurring Opinion.
Concurrence Opinion
{¶ 24} I write separately to express dissatisfaction with the standard of review applied to this R.C.
{¶ 25} I respectfully note this seems to be the third standard promulgated by this court for the review of R.C.
{¶ 26} That being said, the record in this case indicates the trial court appropriately applied the R.C.