STATE OF OHIO, Plaintiff-Appellee v. ROBERT MURPHY, Defendant-Appellant
C.A. CASE NO. 2010 CA 81
T.C. NO. 10CR290
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
October 21, 2011
2011-Ohio-5416
DONOVAN, J.
(Criminal appeal from Common Pleas Court)
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402
Attorney for Defendant-Appellant
OPINION
DONOVAN, J.
{¶ 1} Defendant-appellant Robert Murphy appeals from his conviction and sentence for one count of breaking and entering, in violation of
I
{¶ 2} The instant appeals stems from two incidents which occurred during April of 2010. On April 13, 2010, deputies were dispatched to Advantage Car Credit located in Clark County, Ohio, in order to investigate a break-in. The break-in was reported by an employee who was opening the business that day after she observed a broken window at the back of the building. Upon entering, the witness discovered that a television was missing, and the interior had been ransacked. The employee ran to a nearby bank and called 911. During their subsequent investigation, the deputies obtained information implicating Murphy as the perpetrator of the break-in, and he was arrested and taken to jail.
{¶ 3} The second incident occurred on April 29, 2010, when deputies were dispatched to the 1200 block of Wendell Avenue in New Carlisle, Ohio, after a witness reported a suspicious white male carrying a blue bag and a large TV wrapped in plastic walking down Wendell Avenue. The witness further reported that the suspicious male walked to a residence located at 1223 Wendell Avenue and went inside. Upon arriving and approaching the residence, the deputy observed a white van backing out of the driveway. The deputy initiated a traffic stop of the vehicle in which Murphy was a passenger. The reporting witness identified Murphy as the suspicious male earlier seen walking down Wendell Avenue. The driver of the van, Kelly Tapia, informed the deputies that she had reluctantly given Murphy a ride in order to get him away from her children who were present at 1223 Wendell Avenue. Tapia gave the deputies permission to search her van. The
{¶ 4} Murphy admitted that he had placed the television and the blue bag in Tapia‘s van. Murphy stated that the television previously belonged to his brother, Frankie. Murphy stated that he had taken the television in payment for a car. Murphy did not provide an explanation for the items contained in the blue bag. Murphy insisted that the deputies travel to Frankie‘s residence located at 1029 Wendell Avenue in order to verify his story.
{¶ 5} Upon their arrival at 1029 Wendell Avenue, the deputies spoke with the resident of the house, Brendian Morris, who explained that Frankie had moved away approximately two weeks earlier and left nothing behind. The deputies discovered a Dell tower computer and an HP printer in the grass on the side of the house. Morris stated that he did not recognize the items taken from Tapia‘s van nor the computer and printer found on the side of the house. Upon inspection, a detective noticed that the computer tower had a repair tag on the side ostensibly bearing the name and address of the owner. The detective sent the deputies to the address on the computer, 1030 Grissom Avenue. The deputies discovered that the Grissom Avenue residence had been broken into and that items had been removed. Many of the items recovered from Murphy were found to have been stolen from the residence. Additionally, Murphy‘s shoes matched footprints left at the scene, and the backyard of the Grissom Avenue residence connected to the backyard of the home where Murphy initially claimed that his brother lived.
{¶ 6} On May 10, 2010, Murphy was indicted for two counts of burglary, in
{¶ 7} At the sentencing hearing held on July 12, 2010, however, the trial court did not follow the State‘s recommendation regarding in-patient treatment at West Central. Murphy was sentenced to one year for breaking and entering, and four years for burglary, the sentences to run consecutively for an aggregate sentence of five years in prison.
{¶ 8} It is from this judgment that Murphy now appeals.
II
{¶ 9} Murphy‘s first assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING APPELLANT‘S SENTENCE.”
{¶ 11} In his first assignment, Murphy contends that his sentence was improper because the trial court failed to consider
{¶ 12} “The overriding purposes of felony sentencing are to protect the public from future
{¶ 13} crime by the offender and others and to punish the offender. 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.”
{¶ 14} We review a felony sentence using a two-step procedure. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4. “The first step is to ‘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.‘” State v. Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, ¶ 4, quoting Kalish at ¶ 4. “If this step is satisfied, the
{¶ 15} As we recently explained in State v. Watkins, 186 Ohio App.3d 619, 2010-Ohio-740:
{¶ 16} “Sentencing errors assigned regarding the trial court‘s application of
R.C. 2929.11 and2929.12 are reversible or modifiable only upon a finding by clear and convincing evidence that the sentence is contrary to law. State v. Hawkins, Greene App. No. 06CA79, ¶8. See, also, State v. Bowshier, Clark App No. 08-CA-58, 2009-Ohio-3429, ¶6, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855. ‘Contrary to law means’ that a sentencing decision manifestly ignores an issue or factor which a statute requires a court to consider. Hawkins, supra, at ¶8, citing State v. Lofton, Montgomery App. No. 19852, 2004-Ohio-169, ¶11.{¶ 17} “When a trial court imposes a sentence that falls within the applicable statutory range, the court is required to consider the purposes and principles set forth in
R.C. 2929.11 , as well as the recidivism factors enumerated inR.C. 2929.12 . Hawkins, supra, at ¶8, citing Mathis, supra. However, the court need not make any specific findings in order to demonstrate its consideration of those factors. Id. citing State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-301; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-855, ¶42.”
{¶ 19} “The Court considered the record, oral statements of counsel, the defendant‘s statement, the pre-sentence investigation report, the principles and purposes of sentencing under
Ohio Revised Code Section 2929.11 , and has balanced the seriousness and recidivism factors [set forth in]Ohio Revised Code Section 2929.12 .”
{¶ 20} Because the trial court affirmatively stated in its judgment entry that it considered the factors set out in both
{¶ 21} Having concluded that Murphy‘s sentence is not contrary to law, we must now review his sentence under an abuse of discretion standard. Id. at 631. Murphy asserts that certain statements made by the trial court establish that the court considered improper factors when it ignored the recommendation of the State and sentenced him to five years in prison. The trial court abuses its discretion when it considers an improper factor in its sentencing analysis. State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555.
{¶ 22}
{¶ 23} Murphy asserts that the following statements made by the trial court at his disposition clearly establish that the trial court considered improper factors when it sentenced him:
{¶ 24} “The Court: All right. Well, when I took your plea on June 15th, and I knew that the State would be recommending community control with West Central, I did have some reservations, seeing that one of the offenses was a burglary, a felony of the third degree.
{¶ 25} “But I was committed to keeping an open mind and waiting until the pre-sentence report came back. I have to tell you that the pre-sentence report has not helped you.
{¶ 26} “I‘m not even getting to the offenses yet here, but just looking at your life situation here, you quit high school in the ninth grade. You have two kids. It doesn‘t appear that you‘re paying any child support?
{¶ 27} “Murphy: Not very much, sir.
{¶ 28} “The Court: You don‘t support them so I bet the mom of your kids gets some kind of assistance, which means that all of us here in the courtroom are paying to support your children. ***.
{¶ 30} “So, in summary, you have two kids you are not supporting so the community is supporting them.
{¶ 31} “And then instead of saying ‘Thank you,’ to the community for supporting your kids, you‘re going out and burglarizing homes and breaking into businesses.
{¶ 32} “And then when you get caught, you‘re coming into the courtroom asking for help. Well, it‘s not my job to help you. It‘s my job to punish you.” (Emphasis added).
{¶ 33} It is vital to avoid both the reality and “perception that no clear standards are being applied, and that the rule of law is imperiled by sentences imposed for no discernible reason other than the subjective reactions of the sentencing judge.” State v. Nichols, Clark App. No. 2010 CA 60, 2011-Ohio-4671, quoting Harmelin v. Michigan (1991), 501 U.S. 957, 1007, 111 S.Ct. 2680, 115 L.Ed.2d 836. This record establishes that the trial court improperly considered Murphy‘s limited ability to pay child support, as well as assumed and irrelevant facts regarding his children‘s receipt of “assistance” in weighing the appropriate sentence. The trial court‘s reliance on these factors was clearly improper. The trial court‘s apparent indignation over its assumption that Murphy‘s children received “some kind of assistance” and its resultant impact upon the community was an improper factor upon which to rely when fashioning the appropriate sentence. “Even though it has discretion in choosing an appropriate sentence, when a court considers an improper sentencing factor, it has committed an abuse
{¶ 34} Additionally, although
{¶ 35} We also note that the trial court made the following statement before announcing Murphy‘s sentence:
{¶ 36} “The Court: While the State is recommending community control pursuant to their agreement with you, I‘m assuming that the State wasn‘t aware of
{¶ 37} This declaration by the trial court only serves to further highlight the inherently presumptive and speculative nature of its reasoning process when it decided to reject the State‘s recommendation and sentence Murphy to five years in prison.1 There is no evidence in the record which even remotely suggests that the State was unaware of Murphy‘s criminal record, thus it was improper for the trial court to assume such. Rather than simply assuming that the State was ignorant of Murphy‘s prior record, the trial court could have simply questioned the prosecutor in that regard.
{¶ 38} Murphy‘s first assignment of error is sustained.
III
{¶ 39} Murphy‘s second assignment of error is as follows:
{¶ 40} “THE TRIAL COURT ERRED IN ACCEPTING APPELLANT‘S PLEA AS THE PLEA COLLOQUY DID NOT COMPORT WITH
{¶ 41} In his second assignment, Murphy argues that the trial court erred when it accepted his guilty pleas because he did not orally tender the pleas during the hearing. The tendering of a plea of guilty has substantial consequences to a criminal defendant. State v. Singleton, 169 Ohio App.3d 585, 2006-Ohio-6314. In order to effectuate the tendering of a guilty plea, a criminal defendant must do so
{¶ 42} We note that the record of the plea hearing contains the following exchange between Murphy and the trial court:
{¶ 43} “The Court: By pleading guilty[,] you would be giving up all of these rights that we‘ve gone over. Are you telling the Court that you want to give those rights up and plead guilty to breaking and entering and burglary as a third degree felony?
{¶ 44} “Murphy: Yes, sir.” (Emphasis added).
{¶ 45} In our view, this exchange affirmatively establishes that Murphy orally tendered guilty pleas to the charges against him. Thus, we conclude that the trial court complied with
{¶ 46} Murphy‘s second assignment of error is overruled.
IV
{¶ 47} Murphy‘s first assignment of error having been sustained, his sentence is vacated, and this matter is remanded for re-sentencing in accordance with this opinion.
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Andrew R. Picek
John Paul Rion
Hon. Douglas M. Rastatter