State v. LipkerState v. Lipker
Rendered on the 26th day of July, 2013.
LISA M. FANNIN, Atty. Reg. No. 0082337, Clark County Assistant Prosecuting Attorney, 50 East Columbia Street, P.O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
ROBERT L. SCOTT, Atty. Reg. No 0086785, 8801 North Main Street, Suite 200, Dayton, Ohio 45415 Attorney for Defendant-Appellant
WELBAUM, J.
I. Facts and Course of Proceedings
{¶ 2} On March 19, 2012, Brent M. Lipker was indicted by the Clark County Grand Jury on three counts of Burglary as felonies of the second degree in Case No. 12 CR 187. Lipker was subsequently indicted on two additional counts of Burglary in Case Nos. 12-CR-211 and 12-CR-285. Appellee, the State of Ohio, agreed to dismiss Case Nos. 12-CR-211 and 12-CR-285 if Lipker agreed to plead guilty to the three counts of Burglary in Case No. 12-CR-187. As part of the plea agreement, Lipker also had to agree to pay restitution to two of the victims in the amount of $8,000 and $200. Lipker accepted the plea agreement, and on May 23, 2012, he pled guilty to three counts of Burglary. The two counts in Case Nos. 12-CR-211 and 12-CR-285 were dismissed.
{¶ 3} The three counts to which Lipker pled guilty arose from Lipker breaking into three separate residences in Clark County, Ohio on March 8, 2012. Lipker was only 21 years old when he committed these offenses, but he had an extensive criminal record as a juvenile.
{¶ 4} In December 2005, Lipker violated his probation and was ordered to complete a drug court program. In March 2006, he violated his probation again, and was assigned and transported to a drug and alcohol treatment program. In December 2006, he committed a third probation violatiоn, and was placed in a detention center for five or six days.
{¶ 5} In July 2007, Lipker was charged with breaking and entering and vandalism. He was bound over on these charges, but the charges were later dismissed. In 2008, Lipker was charged with robbery and was also bound over on this charge. He pled guilty to robbery and was imprisoned until he was placed on judicial release and community control in June 2010. While on judicial release and community control, Lipker committed the burglary offenses that are the subject of this case.
{¶ 6} At Lipker’s sentencing hearing on June 13, 2012, the trial court reviewed the relevant sentencing factors set forth in
{¶ 7} Lipker appeals the trial court’s sentence, claiming that it was an abuse of
II. Did the Trial Court Abuse its Discretion When Sentencing the Appellant?
{¶ 8} Lipker’s sole assignment of error states that:
The Trial Court Erred and Abused its Discretion by Imposing Conseсutive Sentences on the Defendant-Appellant.
{¶ 9} Under this assignment of error, Lipker argues that the trial court abused its discretion in imposing three consecutive four-year prison terms, because the burglary offenses occurred оn the same day, they were Lipker’s first offenses since becoming an adult, and they were committed five years after his last juvenile offense. Lipker also claims that his drug abuse led to the offenses. Lipker contends that his prison sentenсe is excessively harsh, given all of these factors.
{¶ 10} A two-step approach is used in Ohio to review felony sentences. “[A]n appellate court must first determine whether the sentencing court complied with all applicаble rules and statutes in imposing the sentence, including
A. Appellant’s Prison Sentence Is Not Contrary to Law
{¶ 12} In addition to sentencing a defendant within the appropriate statutory range, “the trial court must comply with all applicable rules and stаtutes, including
{¶ 13} Pursuant to
A court that sentences an offender 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 using the minimum sanctions that the court determines accomplish those purposеs without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court 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.
{¶ 14} Pursuant to
{¶ 15} With regard to consecutive prison sentences,
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms 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 disproportionаte 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 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.* * *
(c) The offender’s history of criminal conduct demonstrates that consеcutive sentences are necessary to protect the public from future crime by the offender.
{¶ 16} During the sentencing hearing in this case, the trial court discussed the relevant factors set forth in
{¶ 17} The trial court’s purpose and reasoning for imposing three consecutive four-year prison terms complies with
B. Appеllant’s Prison Sentence Is Not an Abuse of Discretion
{¶ 18} “A trial court has broad discretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless the trial court abused its discretion.” (Citations omitted.) State v. Bray, 2d Dist. Clark No. 2010 CA 14, 2011-Ohio-4660, ¶ 28.
“Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. It is to be expected that most instances of abuse of
discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result. (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 19} The fact that the 2012 burglaries were Lipker’s first offenses since becoming an adult, and were committed five years after his last juvenile offense, does not render the trial court’s sentence unreasonable. Lipker has engaged in thе same pattern of conduct since he was a minor, and, despite approximately seven years of intervention by court services and treatment programs, he has not changed his behavior upon entering into adulthood.
{¶ 20} Additiоnally, the fact that the three offenses occurred on the same day does not render the trial court’s sentence unreasonable. While the three burglaries did occur on the same day, the trial court noted that the two offеnses dismissed pursuant to the plea agreement occurred on a separate day, February 24, 2012. Accordingly, the burglaries of March 8, 2012, were not isolated incidents.
{¶ 21} The record demonstrates that the trial court decided to impose three consecutive four-year prison terms based on Lipker’s criminal history, the economic harm caused by his offenses, his unfavorable response to previous sanctions, his failure to rehabilitate from drug
{¶ 22} Lipker’s sole assignment of error is overruled.
III. Conclusion
{¶ 23} Having overruled Brent M. Lipker’s sole assignment of error, we hereby affirm the judgment of the trial court.
FAIN, P.J. and FROELICH, J., concur.
Copies mailed to:
Lisa M. Fannin
Robert L. Scott
Hon. Richard J. O’Neill