State v. McNaughtonState v. McNaughton
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR 000001.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Dale R. McNaughton appeals from a judgment of Lake County Court of Common Pleas which sentenced him to 16 years in prison for his conviction of eight counts of burglary and also ordered him to pay restitution to the victims. After reviewing the record and pertinent law, we affirm the trial court’s judgment.
Substantive Facts and Procedural History
{¶3} Mr. McNaughton has a lengthy criminal record, which began in 1999 while he was a juvenile. He began his adult criminal career in 2004, committing a variety of crimes including receiving stolen property, breaking and entering, theft, aggregated theft, grand theft, and robbery. His commission of crimes was only temporarily interrupted by the two prison terms he served in 2005 and 2008. After his release from prison in 2008, he was charged with various crimes under several case numbers. In the instant case, he was charged with nine counts of burglary, four of which contained a firearm specification, one count of attempted burglary, and one count of engaging in a pattern of corrupt activity.
{¶4} On May 2, 2011, Mr. McNaughton pled guilty to eight counts of burglary, second degree felonies in violation of
{¶5} Mr. McNaughton now appeals, raising two assignments of error:
{¶6} “[1.] The trial court erred by sentencing the defendant-appellant to consecutive sentence of sixteen years in prison.
{¶7} “[2.] The trial court erred to the prejudice of the defendant-appellant when it ordered him to pay $124,104.90 in restitution.”
Review of Sentence Post-Foster
{¶8} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio held that in imposing maximum, consecutive sentences, a trial court is not required to make judicial fact-finding as mandated by the legislature in
{¶9} First, the reviewing court 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 appellate court then reviews the trial court’s decision under an abuse-of-discretion standard. Id. at ¶4.
{¶10} The first prong of the analysis instructs that “the appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in
{¶11} If the first prong is satisfied, that is, the sentence is not “clearly and convincingly contrary to law,” the appellate court must then engage in the second prong of the analysis, which requires an appellate court to determine whether the trial court abused its discretion in selecting a sentence within the permissible statutory range. Id. at ¶17. The court in Kalish explained the effect of
{¶12} “
{¶13} Affirming the trial court’s sentence, the court in Kalish noted the trial court “gave careful and substantial deliberation to the relevant statutory considerations” and found nothing in the record to suggest the trial court’s decision was an abuse of discretion. An abuse of discretion is the trial court’s “failure to exercise sound,
{¶14} On appeal, Mr. McNaughton does not assert his sentence is contrary to law. He only claims the trial court failed to give “careful and substantial deliberation” to the relevant statutory considerations regarding
{¶15}
{¶16} In this case, the trial court indicated that it had considered the presentence report, Mr. McNaughton’s drug and alcohol evaluation, the victim impact statements, letters written on behalf of Mr. McNaughton, and his in-court statement. The court stated it had evaluated the circumstances of this case in light of the purposes and principles of
{¶17} Before imposing consecutive sentences for his conviction of two of the eight counts of burglary, the trial court explained at great length its consideration of the seriousness and recidivism factors under
{¶19} “Obviously the Defendant has not responded favorably to previously imposed sanctions. * * * I recognize a drug abuse problem which relates to the commission of these offenses[;] I am not disputing that. But the Defendant has not gotten treatment for that. You can blame the courts that they should have sent him, but the Defendant can go get help on his own. Nothing prevent[s] him when he was out to try[] to go get the help. * * *
{¶20} “* * *
{¶21} “* * * As I mentioned, I recognize the serious drug issues that you have, Mr. McNaughton, and that that is what you claim, not disputing it necessarily, is what pushed you to commit these crimes. But you have been doing it over and over and over. There comes a point in time when – one of the main purposes in sentencing is you have got to protect the community, protect the community from future criminal conduct, from these serious, serious offenses. Because your history has shown as soon as you get out, you go right back to this.”
{¶22} Despite the record clearly reflecting the trial court’s thorough consideration of the statutory factors, Mr. McNaughton complains that the trial court did not give
{¶23} The transcript reflects that the trial court acknowledged Mr. McNaughton’s drug issues, but balanced it against the need to protect the communities from his repeated commissions of serious offenses while not incarcerated. Regarding his expression of remorse, in which Mr. McNaughton did show some insight into his disease, this court has repeatedly held that a reviewing court must defer to the trial court as to whether the defendant‘s remarks are indicative of genuine remorse, because the trial court is in the best position to make that determination. State v. Dudley, 11th Dist. No. 2009-L-019, 2009-Ohio-5064, ¶22; State v. Stewart, 11th Dist. No. 2008-L-112, 2009-Ohio-921, ¶30; State v. Eckliffe, 11th Dist. No. 2001-L-015, 2002-Ohio-7136, ¶32.
{¶24} Thus, we will not second-guess the trial court’s finding of a lack of genuine remorse by Mr. McNaughton. “Remorse goes to sleep during a prosperous period and wakes up in adversity.” State v. Brown, 11th Dist. No. 2008-152, 2009 Ohio 2189, ¶2, quoting Jean-Jacques Rousseau, Confessions II. The trial court refused to give much weight to Mr. McNaughton’s expression of remorse under the circumstances of this case, and we defer to the trial court for that assessment.
{¶25} The first assignment of error is without merit.
Restitution
{¶26} Under the second assignment of error, Mr. McNaughton contends the trial court erred in finding his ability to pay the restitution.
{¶28} We review an order of restitution for an abuse of discretion. State v. Marbury, 104 Ohio App.3d 179, 181 (8th Dist. 1995); State v. Cisternino, 11th Dist. Nos. 2010-L-031, 2011-Ohio-2453; State v. Rose, 2d Dist. No. 24196, 2011-Ohio-3616; State v. Burns, 8th Dist. No. 95465, 2011-Ohio-4230.
{¶29}
{¶30} “Under
{¶32} The second assignment of error is without merit.
{¶33} Judgment of the Lake County Common Pleas Court is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,