STATE OF OHIO v. JEREME S. OSBORNE
C.A. CASE NO. 2014-CA-107; T.C. NO. 14CR283
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
July 31, 2015
[Cite as State v. Osborne, 2015-Ohio-3058.]
DONOVAN, J.
(Criminal appeal from Common Pleas Court)
Rendered on the 31st day of July, 2015.
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RYAN A. SAUNDERS, Atty, Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
THOMAS B. SCOTT, Atty. Reg. No. 0075341, Suite 2103, 130 West Second Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Jereme S. Osborne, filed September 26, 2014. Osborne appeals from his September 4, 2014 Judgment Entry of Conviction, following a guilty plea, to one count of possession of cocaine, in violation of
{¶ 3} The court indicated as follows: “The defendаnt does have a prior conviction for possession of crack cocaine. He served a six-month prison sentence for that offense. The court is going to order that the defendant be sentenced to one year in the Ohio State Penitentiary, three years optional post-release control.”
{¶ 4} Osborne’s Judgment Entry of Conviction provides in part as follows:
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Upon review of the pre-sentence investigation report, the Court found that it has discretion, pursuant to
Ohio Revised Code Section 2929.13(B)(1)(x) , to impose a prison term upon the defendant because, at the time of the offense, the defendant рreviously had served a prison term.The court considered the record, oral statements of counsel, the defendant’s statement, and principles and purposes of sentencing under
Ohio Revised Code Section 2929.11 , and then balanced the seriousness and recidivism factors underOhio Revised Code Section 2929.12 .* * *
{¶ 5} Osborne asserts the following assignment of error:
THE TRIAL COURT’S SENTENCE IS CONTRARY TO LAW AND A LESSER SENTENCE IS COMMENSURATE WITH AND WOULD NOT DEMEAN THE SERIOUSNESS OF THE OFFENSE.
{¶ 6} Osborne asserts that the trial court “ignored the requirements of
{¶ 7} As this Court previously noted:
In State v. Rodefer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.), we held that we would no longеr use an abuse-of-discretion standard in reviewing a felony sentence, but would apply the standard of review set forth in
R.C. 2953.08(G)(2) .[] Under this statute, an appellate court may increase, reduce, or modify а sentence, or it may vacate the sentence and remand for resentencing, only if it “clearly and convincingly” finds either (1) that the record does not support certain specified findings or (2) that the sentence imposed is contrary to law. Rodeffer stated that “[a]lthough [State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124] no longer provides the framework for reviewing felony sentences, it does provide * * * adequate guidance for determining whether a sentence is сlearly and convincingly contrary to law. * * * According to Kalish, asentence is not contrary to law when the trial court imposes a sentence within the statutory range, after expressly stating that it had considered the purposes and principles of sentencing set forth in R.C. 2929.11 , as well as the factors inR .C. 2929.12 .” (Citations omitted.) Rodeffer at ¶ 32.
State v. Battle, 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 7.
{¶ 8}
{¶ 9} As this Court further noted in Battle:
“The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
R.C. 2929.11 andR.C. 2929.12 . State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
R.C. 2929.11 rеquires trial courts to be guided by the overriding principles of felony sentencing. Those purposes are “to protect the public from future crime by the offender and others and to punish the offendеrusing the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” R.C. 2929.11(A) . The court must “consider the neеd for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing * * *, commensurate with and not demeaning to the sеriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
R.C. 2929.12(B) sets forth nine factors indicating an offender’s cоnduct is more serious than conduct normally constituting the offense;R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct is less serious.R.C. 2929.12(D) and(E) each list five factors that trial courts are to consider regarding the offender’s likelihood of committing future crimes. Finally,R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service record and “whether the offender has an emotional, mental, or physical condition that is traceable to the offender’s service in the armed forces of the United States and that was a contributing factor in the offender’s commission of the offense or оffenses.” Battle at ¶ 9-11.
{¶ 10} As this Court noted in Battle, in “State v. Miller, 2d Dist. Clark No. 09-CA-28, 2010-Ohio-2138, we held that a defendant’s sentence was not contrary to law when the trial court expressly stated in its sentencing entry that it had considered
{¶ 11} Osborne’s sentence is within the authorized range, and the trial court indicated in its Judgment Entry of Conviction that it considered
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WELBAUM, J., concurs.
FROELICH, P.J., dissenting:
{¶ 12} The legislature, via H.B. 86, decided that individuals cоnvicted of possession of small amounts of drugs should be sentenced to community control and, where available, receive drug treatment so as to lessen the chances of their reoffending аnd to increase their opportunities to become contributing members of society. See Am.Sub.H.B. 86; Ohio Legislative Serv. Comm., Fiscal Note & Local Impact Statement to Am.Sub.H.B. 86, at 8-9 (Sept. 30, 2011), noting that H.B. 86 incorрorated several sentencing reform initiatives from a study and report of the Council of State Governments’ Justice Reinvestment; Ohio Legislative Serv. Comm., Final Analysis for Am.Sub.H.B. 86,
{¶ 13} H.B. 86 “provides, in certain felony casеs, a preference for one or more community control sanctions rather than the imposition of a prison sentence. * * * The bill’s numerous criminal sentencing changes are generally designеd to reduce the size of the state’s prison population and related institutional operating expenses by: (1) diverting otherwise prison-bound nonviolent offenders into less expensive community-based alternative sanctions, and (2) reducing the lengths of stay for certain offenders that are sentenced to a prison term from what those lengths of stay might otherwise have been under current law and practice.” Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement to Am.Sub.H.B. 86, at 2-3 (Sept. 30, 2011). See also State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20 (“The General Assembly * * * enacted Am.Sub.H.B. No. 86 (“H.B. 86”) * * * with a legislative purpose to reduce the state’s prison population and to save the associated costs of incarceration by diverting certain offenders from prison and by shortening the terms of other offenders sentenсed to prison.”).
{¶ 14} Appellant, age 27, had one prior felony, possession of crack cocaine nine years ago, and was sentenced to six months imprisonment. He is employed part-timе on an on-call basis, still never had drug treatment, and pled guilty to having 0.3 grams of cocaine in his pocket for which he paid $10 while drunk at a bar.
{¶ 15} The judgment that he serve the maximum penalty of 12 months in prison will cоst the taxpayers tens of thousands of dollars,1 and all but guarantees that he will never
{¶ 16}
{¶ 17} I would clearly and convincingly find that the record does not suрport the trial court’s findings under
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Copies mailed to:
Ryan A. Saunders
Thomas B. Scott