State v. LombardoState v. Lombardo
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-520240
Roger M. Bundy
4766 Broadview Road
Cleveland, Ohio 44109
Also listed:
James Lombardo
Inmate Number 564-695
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: James Hofelich
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).
{¶ 1} Appellant, James Lombardo, appeals his sentence from the Cuyahoga County Court of Common Pleas. For the reasons outlined below, we affirm in part, reverse in part, and remand for further proceedings.
{¶ 2} On February 3, 2009, a Cuyahoga County grand jury indicted Lombardo on three counts of felonious assault. A jury trial commenced on April 29, 2009.
{¶ 3} According to the facts adduced at trial, on the evening of January 11, 2009, several people, including Anthony Smart, Pamela Grady, and Lombardo, were at a house rented by Phil Lewis in Cleveland, Ohio. There was testimony that Lombardo left sometime during the evening. Later that evening, Smart and Grady retired to one of the bedrooms in Lewis‘s house.
{¶ 4} At approximately 1:30 a.m., Smart and Grady heard people yelling and trying to get into the bedroom where they were sleeping. The people were later identified as Lombardo, Bobbie Meadows, and “Ray.” These men were apparently trying to get into the bedroom to retrieve some scrap metal they had placed there earlier that day. Smart and Grady refused Lombardo entry, saying it was not their room and Lombardo should return when Lewis‘s son was home. The commotion in the hallway prompted Lewis to come into the hall from his room, carrying a bat and yelling for everyone to leave his house.
{¶ 6} In the defense‘s case, Meadows testified that once everyone was outside, Smart attacked Lombardo with the snow shovel, Lombardo then hit Smart once, and no one hit Grady at all. Lombardo testified, and his testimony corroborated Meadow‘s.
{¶ 7} The jury returned not guilty verdicts on Counts 1 and 3, and a guilty verdict of the lesser-included offense of aggravated assault, in violation of
{¶ 8} The court stated that its review of Lombardo‘s lengthy criminal record and his involvement with drugs compelled it to focus on protecting the public from future crimes, as well as to punish him for the aggravated assault. The court also acknowledged that it would respect the jury‘s verdict, which validated Lombardo‘s claim he was provoked by Smart. The court
{¶ 9} Lombardo filed this appeal, raising two assignments of error.
{¶ 10} “I. Defendant was denied due process of law when the court based his sentence upon alleged criminal activity for which defendant has never been charged or convicted.”
{¶ 11} In his first assignment of error, Lombardo argues the court sentenced him based on information that he was involved with stealing scrap metal, a crime he was not charged with in this case. He contends that the court obviously disagreed with the jury verdict and, therefore, sentenced him to the maximum allowable prison time for a fourth-degree felony. We are not persuaded.
{¶ 12} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio Supreme Court held that trial courts have full discretion to impose a prison sentence within the statutory range and are not required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences. Id. at paragraph seven of the syllabus.
{¶ 13} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the supreme court set forth how appellate courts are to review felony
{¶ 14} The Kalish court explained that the applicable statutes a trial court must apply include the felony sentencing statutes
{¶ 15} In sentencing Lombardo, the trial court expressly stated that its decision to impose a prison sentence would be based both on what will punish the defendant for his act and what will protect the public from future crimes by the same defendant.2 The court then addressed Lombardo‘s lengthy
{¶ 16} We find that the trial court‘s sentence was not “clearly and convincingly contrary to law” because the trial court expressly stated that it must impose a sentence that both punishes Lombardo and protects the public from future crimes he might commit, albeit without mentioning either
{¶ 18} Applying the second prong of the analysis to the underlying case, we find the trial court “gave careful and substantial deliberation to the relevant statutory considerations,” and that “there is nothing in the record to suggest the trial court‘s decision was unreasonable, arbitrary, or unconscionable.” See Kalish, at ¶ 20. The trial court explained its pertinent considerations under the statutes, including Lombardo‘s extensive criminal record, his failure to rehabilitate, his repeated involvement with drugs, and his history of violence, all of which suggest a high likelihood of recidivism. The court concluded that Lombardo was not “amenable to any type of
{¶ 19} On this record, the trial court did not abuse its discretion in sentencing him to 18 months in prison. Lombardo‘s first assignment of error is overruled.
{¶ 20} “II. The trial court erred in sentencing defendant by failing to advise defendant of the consequences of violating postrelease control as required by
{¶ 21} In his second assignment of error, Lombardo argues that although the trial court mentioned postrelease control when it sentenced him, the court did not inform him of the consequences of violating its terms. We agree.
{¶ 22} In State v. Samilton, Cuyahoga App. No. 92823, 2010-Ohio-439, this court held: “Under
{¶ 23} Here, the trial court informed Lombardo he was subject to three years’ postrelease control, but made no mention of the consequences he would face for violating its terms. This error constitutes a failure to properly impose postrelease control. In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus, the court held, “For criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in
{¶ 24} Therefore, Lombardo‘s second assignment of error is sustained, necessitating that we remand for the trial court to employ the “sentence-correction mechanism” of
Judgment affirmed in part, reversed in part, and cause remanded.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS
CHRISTINE T. MCMONAGLE, J., CONCURS WITH SEPARATE OPINION
{¶ 25} I concur in all the findings of the majority, but write separately only to address a small issue arising out of State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, and addressed most artfully by the Ninth Appellate District in State v. Trifari, 9th Dist. No. 08CA0043-M, 2009-Ohio-667. We have all been slavishly citing the first prong of review under Kalish, i.e., whether the sentence imposed by the court is “clearly and convincingly contrary to law.”
{¶ 26} The Ninth District observed the following:
{¶ 27} “In the Wizard of Oz, after Dorothy‘s house fell on the Wicked Witch of the East, the Munchkins called upon the coroner to determine whether the witch who had terrorized them was morally, ethically, spiritually, physically, positively, absolutely, undeniably, and reliably dead. The coroner assured them that he had thoroughly examined her ‘[a]nd she‘s not only merely dead, she‘s really most sincerely dead.’ She was dead. An assurance that she was ‘most sincerely dead’ added nothing.
{¶ 29} In short, a sentence is either “according to law” or “contrary to law,” and our first-prong analysis should be limited solely to resolution of that issue. To suggest that there are degrees of “contrary to law” results in unnecessary analysis and is occasionally misleading to resolution of the issue.