State v. MooreState v. Moore
Brian A. Smith, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} This matter is before the court as a delayed appeal, challenging the imposition of sentence as lacking support in the record. Finding no error in sentencing, we affirm.
A. Facts and Procedural Background
{¶ 2} In February 2017, appellant was indicted in case No. CR0201701379 on two counts of burglary, in violation of
{¶ 3} While case No. CR0201701379 was pending, the state indicted appellant in a separate case, case No. CR0201701585, on one count of breaking and entering, in violation of
{¶ 4} In May 2017, appellant entered into a plea agreement to resolve both cases. Pursuant to the plea agreement, the state amended Count I of case No. CR0201701379 to the lesser included offense of burglary, a felony of the third degree, and agreed to dismiss thе remaining counts at sentencing. Appellant agreed to tender a no contest plea to the lesser included offense in case No. CR0201701379, as well as to the sole count in case No. CR0201701585. The trial court accepted the plea in each case, and entered a guilty finding in each case.
{¶ 5} On May 30, 2017, the trial court sentenced appellant to a term of 24 months in prison in case No. CR0201701379, and to a term of 10 months in prison in case No. CR0201701585, and after reciting the statutory language under
{¶ 6} At the sentencing hearing, the trial count imposed a sentence in each case, with ruling in the present matter as follows:
It will be the order of the Court in Case No. 17-1379 the defendant having been convicted of the offense of burglary, in violation of Revised Code Section
2911.12(A)(3) and (D), a felony of the third degrеe, * * * a hearing pursuant to2929.19 , having afforded the defendant and counsel rights to make statements pursuant to Criminal Rule 32(A)(1), as well as having considered2929.11 , as it relates to Case No. 17-1379 the defendant will be sentenced to the Ohio Department of Rehabilitation & Corrections for a period of 24 months, until released according to law, and is ordered to pay the costs of prosecution. The defendant will be given credit for 63 days of time served as of today‘s date.Also, pursuant to the plea agreement in this case, a nolle prosequi is hereby entered as it relates to Counts 2, 3, and 4 of that indictment.
The Court has considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing under
R.C. 2929.11 , and has balanced the seriousness, rеcidivism and other relevant factors underR.C. 2929.12 .The Court finds on May 16, 2017, the defendant entered a plea of no contest and was found guilty by the Court of the lesser included offense of Burglary, a violation of
R.C. 2911.12(A)(3) &(D), a felony of the 3rd degree as to count 1.The Court further finds the defendant is not amenable to community control and that prison is consistent with the purposes оf
R.C. 2929.11 . It is ORDERED that defendant serve a term of 24 months in prison.
{¶ 8} On November 28, 2017, appellant filed a pro se motion for leave to file delayed appeal of case No. CR0201701379, arguing “he did not file a timely appeal because S.B. 49 recently became effective” and the legislative intent of that law favors a delayed appeal. As good cause for appeal, appellant argued the interests of justice in permitting his sentences to run concurrently. Appellant did not seek leave to appeal in case No. CR0201701585.
{¶ 9} On January 11, 2018, we granted leave for a delayed appeal оf case No. CR0201701379. On January 31, 2018, appellant filed a pro se notice of appeal, and
{¶ 10} Appellant now challenges the sentence in casе No. CR0201701379, arguing the record contradicts the trial court‘s findings under
{¶ 11} In response, the state notes that appellant only appeals the sentence in case No. CR0201701379, and the trial court properly applied
{¶ 12} The statutory sentencing range for third-degree burglаry for appellant is “twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.”
Assignment of Error
{¶ 13} Appellant asserts а single assignment of error in challenging the sentence in case No. CR0201701379.
Whether the trial court‘s sentence of appellant, which included consecutive sentences, was supported by the record, where appellant acknowledged his prior drug addiction and requested treatment, and where appellant expressed genuine remorse for the offenses.
II. Analysis
{¶ 14} As previously noted, appellant seeks review of the judgment in case No. CR0201701379, and that entry contains no language indicating a consecutive sentence. Consecutive sentences, pursuant to
{¶ 15} Therefore, whether the trial court properly imposed a consecutive sentence in case No. CR0201701585 is an issue that appellant must raise in an appeal of that separate case, challenging that separate judgment. Therefore, while appellant references
{¶ 16} We review felony sentences under
{¶ 17} Stated differently, tо better illustrate the standard,
{¶ 18} Pursuant to
(a) That the record 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 section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant; or(b) That the sentence is otherwise contrary to law.
State v. Jones, 6th Dist. Sandusky No. S-18-013, 2019-Ohio-301, ¶ 182, citing State v. Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, ¶ 6; Marcum at ¶ 23.
{¶ 19} Appellant does not challenge his sentence under either section of
{¶ 20} Therefore, while a sentence may fall within the statutory range and comply with the law, we must still conduct an independent review of the record to determine whether that sentence lacks sufficient support. State v. K.W., 6th Dist. Erie No. E-16-051, 2017-Ohio-4338, ¶ 20-21. After our review, we may vacatе or modify the trial court‘s sentence if we find “by clear and convincing evidence that the record does not support the sentence.” Marcum at ¶ 23.
{¶ 21} The purposes of felony sentencing are three-fold: “to protect the public from future crime * * * to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes * * *.”
{¶ 22} In determining the appropriate sentence, a court considers the purposes and principles factors under
{¶ 23} In this case, there is no dispute that the trial court recited consideration of the purposes and principles of sentencing under
{¶ 24} In challenging his sentence, appellant argues that there are deficiencies in the record before the trial court related to recidivism factors under
{¶ 25} The relevant sections under
(E) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes:
* * *
(4) The offense was committed under circumstances not likely tо recur.
(5) The offender shows genuine remorse for the offense.
{¶ 26} The relevant sections under
(D) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes:
* * *
(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the оffense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
{¶ 27} Appellant argues the record demonstrates that the offenses were committed under circumstances not likely to recur once he is sober. At his sentencing hearing, appellant indicated he was “on drugs all the time,” but had been clean at one point in his life “for five years three months 33 days.” Based on review of the record, however, appellant‘s criminal history contradicts his claim that sobriety will ensure no future offenses. As the trial court noted, appellant‘s criminal record spans decades, with eight prior felony convictions and 39 prior misdemeanor convictions. Despite appellant‘s assertion of more than five years of sobriety, there is no corresponding period in his criminal record, spanning more than five years, without criminal activity. At sentencing, appellant acknowledged his most recent felony conviction in 2012, and the record demonstrates misdemeanor convictions between 2012 and the present conviction.
{¶ 28} Additionally, appellant contends he demonstrated genuine remorse at the timе of sentencing, as evidenced by the transcript of the sentencing hearing, and based on this remorse, he is not likely to commit future crimes. The only evidence of remorse presented at hearing consisted of appellant‘s own words. “However, a court is not required to believe that the defendant is remorseful simply because such statements were
{¶ 29} Finally, appellant argues the record shows he fully acknowledged his drug addiction and requested treatment as part of a community control sentence as his “one chance,” and the trial court failed to consider this request in sentencing him to prison. The trial rejected community control as a sеntence. Instead, the trial court noted appellant had received “a lot of chances[,]” had served prison time for other offenses, and “it doesn‘t seem as though we‘ve gotten your attention because you‘re still committing crimes.”
{¶ 30} Upon careful review of the record, we find appellant failed to demonstrate that the record does not clearly and convincingly support the trial court‘s findings relative to sentencing. Accordingly, we find no basis for reversal or modification, relative to the trial court‘s findings under
III. Conclusion
{¶ 31} For the forеgoing reasons, we affirm the judgment of the Lucas County Court of Common Pleas. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Gene A. Zmuda, J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.