STATE OF OHIO v. JUSTIN L. MINOR
Case No. CT2014-0027
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 20, 2014
2014-Ohio-4660
Hоn. William B. Hoffman, P.J.; Hon. Sheila G. Farmer, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2014-0015; JUDGMENT: Affirmed
For Plaintiff-Appellee
RON WELCH
27 North Fifth Street
Zanesville, OH 43701
For Defendant-Appellant
ROGER SOROKA
JOSHUA BEDTELYON
503 South Front Street
Suite 205
Columbus, OH 43215
{¶1} On April 24, 2014, appellant, Justin Minor, pled guilty pursuant to a negotiated plea to two counts of trafficking in drugs (heroin) in violation of
{¶2} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶3} “THE MAXIMUM SENTENCE IMPOSED UPON THE APPELLANT BY THE TRIAL COURT WAS CONTRARY TO LAW.”
II
{¶4} “THE MAXIMUM SENTENCE IMPOSED UPON THE APPELLANT BY THE TRIAL COURT WAS AN ABUSE OF DISCRETION.”
I, II
{¶5} Appellant claims the trial сourt erred and abused its discretion in sentencing him to the maximum and near-maximum sentences. We disagree.
{¶6} Appellant cites
(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the reсord, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for reviеw is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the rеcord does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶7} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4, the Supreme Court of Ohio set forth the following two-step approach in reviewing a sentence: “First, they must examine the sentencing court‘s compliance with all applicable rules and statutеs 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 shall be reviewed under an abuse-оf-discretion standard.” In order to find an abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary or
{¶8} As this court explained in State v. Robinson, 5th Dist. Muskingum No. CT2012-0005, 2013-Ohio-2893, ¶ 19-20:
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 сourt need not recite its reasons. In other words, an appellate court may review the record to determine whether the trial court failed to consider the approрriate sentencing factors. State v. Firouzmandi, 5th Dist No. 2006-CA41, 2006-Ohio-5823 at ¶ 52.
Accordingly, appellate courts can find an “abuse of discretion” where the record establishes that a trial judge refused or failed to consider stаtutory 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 sеverity of the sentence shocks the judicial conscience or greatly exceeds penalties usually exacted for similar offenses or defendants, and
the record fails to justify аnd the trial court fails to explain the imposition of the sentence, the appellate court‘s can reverse the sentence. Woosley, supra at 147. This by no means is an exhaustive or exclusive list of thе 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.
{¶9} Appellant pled guilty tо two counts of trafficking in drugs (heroin) in violation of
(2) For a felony of the second degree, the prison term shall be two, three, four, five, six, seven, or eight years.
(4) For а felony of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.
(5) For a felony of the fifth degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months.
{¶10} The trial court sentenced appellant to eleven months in prison on the fifth degree felony and seventeen months on the fourth degree felony, less than the
{¶11} Apрellant first argues his sentence is contrary to law. In its sentencing entry filed May 23, 2014, the trial court specifically stated it considered the “principles and purposes of sentencing under
{¶12} Appellant argues he should not have been sentenced to the maximum sentence of eight years on the secоnd degree felony because the facts do not warrant such a sentence. Although appellant acknowledges he has prior convictions, he argues this was his first drug related offensе and the subject offense was not violent. He argues he has shown “sincere remorse,” has admitted to a drug problem, and has taken steps to “begin the process of rehabilitation.” Appellant‘s Brief at 6.
{¶13}
(A) A court that sentences an offender for a felony shall be guided by the ovеrriding 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 purposes 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 mаking restitution to the victim of the offense, the public, or both. (B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentencеs imposed for similar crimes committed by similar offenders.
{¶14} In the May 23, 2014 sentencing entry, the trial court found the following:
The Court further finds that the defendant has a lengthy criminal history with multiple crimes involving weapоns and has served previous prison terms. Therefore, a maximum sentence is necessary to protect the public or to punish the offender, and the sentence is not disproportionate to the seriousness of his conduct and the danger the offender poses to the public. In addition, the Court finds the offender‘s history of criminal conduct demonstrates a maximum sentencе is necessary to protect the public from future crime.
{¶16} While appellant argues the trial court unreasonably focused on his child support arrearаge, the trial court did so in response to defense counsel stating, “[h]e‘s a father of three. He has another one on the way. He‘s a good father.” T. at 5. The trial court noted appellant was “nearly $16,000 behind in child support, so he hasn‘t really been taking care of his kids the way he should be, has he?” T. at 6.
{¶17} There is nothing in the record to suggest that the trial court‘s decision was unreasоnable, arbitrary, or unconscionable.
{¶18} Upon review, we find the trial court did not err or abuse its discretion in sentencing appellant to the maximum and near-maximum sentences.
{¶19} The sole assignment of error is denied.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
SGF/sg 926