State v. OstranderState v. Ostrander
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Eric Allen Marks, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} This is an appeal from a judgment of conviction and sentence entered by the Fulton County Court of Common Pleas after defendant-appellant, Steven E. Ostrander, entered pleas of guilty to one count of theft and one count of possession of criminal tools. Appellant now challenges that judgment through the following assignments of error:
{¶ 2} “First Assignment of Error
{¶ 3} “The trial court erred in finding appellant guity [sic] without calling for an explanation of the circumstances of the offense from appellant or the prosecuting attorney in violation of
{¶ 4} “Second Assignment of Error
{¶ 5} “The trial court abused its discretion by imposing a jail term and by imposing consecutive sentences in violаtion of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Sections 1 and 16 of Article I of the Ohio Constitution.”
{¶ 6} On December 22, 2009, appellant was indicted and charged with one count of theft in violation of
{¶ 7} “THE COURT: The record will reflect that the Defendant has signed the plea of guilty form with approvals of the attorneys, Mr. Gerbitz and the State‘s Attorney Mr. Kennedy. Mr. Ostrander, Count I as amеnded in this case charges that you did on or about November 29, 2009, at Fulton County, Ohio, with purpose to deprive the owner, Wal-Mart, of property or services. [sic] Knowingly obtaining or exerting control over said property or services without consent of the owner or person authorized to give consent. All this being contrary to and in violation of Ohio Revised Code Section
{¶ 8} “MR. OSTRANDER: Yes, sir.
{¶ 9} “THE COURT: Count II as amended charges that you did on or about November 29, 2009, at Fulton County, Ohio, possess, or have under your control a substance, device, instrument, article, or articles with purpose to use it [unintelligible] substance, device, instrument, or article involved in the offense intended for the use of a misdemeanor, all this being contrary to and in violation of Ohio Revised Code Section
{¶ 10} “MR. OSTRANDER: Yes.
{¶ 11} “THE COURT: Is that true?
{¶ 12} “MR. OSTRANDER: Yes, sir.”
{¶ 13} The court then determined that appellant had entered his pleas knowingly and voluntarily, accеpted the guilty pleas, ordered them filed, and referred the matter for a presentence investigation and report.
{¶ 14} On April 28, 2010, the parties returned to court for sentencing. The court stated that it had considered the record, oral statements, the presentence report, as well as the principles and рurposes of sentencing that the court is required to consider under
{¶ 15} In his first assignment of error, appellant asserts that the lower court erred in finding him guilty of the charged offenses without first calling for an explanation of the circumstances of the offenses as required by
{¶ 16}
{¶ 17} “If the offense is a misdemeanor and the accused pleads guilty to the offense, the court or magistrate shall receive and enter the plea unless the court or magistrate believes that it was made through fraud, collusion, or mistake. * * * Upon receiving а plea of guilty, the court or magistrate shall call for an explanation of the circumstances of the offense from the affiant or complainant or the affiant‘s or complainant‘s representatives. After hearing the explanation of circumstances, together
{¶ 18} “A plea to a misdemeanor offense of ‘no contest’ or words of similar import shall constitute a stipulation that the judge or magistrate may make a finding of guilty or not guilty from the explanation of circumstances of the offense. If a finding of guilty is made, the judge or magistrate shall impose the sentence or continue the case for sentencing accordingly. A plea of ‘no contest’ or words of similar import shall not be construed as an admission of any fact at issue in the criminal charge in any subsequent civil or criminal action or proceeding.”
{¶ 19} In Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, the Supreme Court of Ohio declared that the provision in
{¶ 20} The case upon which appellant primarily relies, State v. Spinazee, 6th Dist. No. L-04-1274, 2005-Ohio-1780, simply reaffirmed Bowers and therefore does not answer the question before us. Rather, we find the Seventh District Court of Appeal‘s decision in State v. Russell, 7th Dist. No. 09 MA 156, 2011-Ohio-1181, to be directly on point. In Russell, the defendant pled guilty to a first degree misdemeanor offense. On aрpeal he argued that the trial court‘s failure to call for an explanation of circumstances when accepting his guilty plea was reversible error. The court rejected the proposition. The court first noted that it could find no case law applying Bowers to a guilty plea. The court explained:
{¶ 21} “The main concern in Bowers was that the failure to provide an explanation of circumstances meant that there were no facts on which to find the defendant guilty. A no contest plea is not an admission of guilt, but rather, a stipulation that the court may make a finding of guilty from the explanation of circumstances provided to the court. Bowers, supra, 9 Ohio St.3d at 150 * * *. There is a fundamental difference between pleading guilty and pleading no contest, because a guilty plea constitutes an actual admission of guilt, whereas a plea of no contest requires the trial court to make a finding of guilt based on some type of evidence, at least in a misdemeanor case. State v. Knaff (1988), 128 [Ohio App.]3d 90, 93 * * *.
{¶ 22} “In Bowers, the defendant pleaded no contest to two misdemeanor traffic offenses. The Cuyahoga Falls Municipal Court found the defendant guilty and thereafter denied his motion to withdraw his plea and vacate the judgment. The issue before the
{¶ 23} The Russell court then determined that it was “clear from the entire context of the Bowers case that it is solely directed at situations when a defendant has pleaded no contest,” and that it had no relevance to cases in which an accused entered a guilty plea. Id. at ¶ 14.
{¶ 24} We agree with the reasoning in Russell. We further note that while
{¶ 25} Accordingly, the first assignment of error is not well-taken.
{¶ 26} In his second assignment of error, appellant challenges the sentence imposed upon him by the trial court.
{¶ 27} Appellant asserts that the lower court abused its discretion in sentencing him to a jail term when, in imposing sentence, it failed to consider the purposes of misdemeanor sentencing. He also challenges the consecutive nature of the sentences.
{¶ 28} We review misdemeanor sentences for an abuse of discretion. State v. Cossack, 7th Dist. No. 08 MA 161, 2009-Ohio-3327, ¶ 20. In imposing a sentence for a misdemeanor offense, a trial court must consider the purposes and principles of misdemeanor sentencing as set forth in
{¶ 29} The purposes and principles of misdemeanor sentencing are to protect the public from future crime by the offender and others and to punish the offender.
{¶ 30} “(a) The nature and circumstances of the offense or offenses;
{¶ 31} “(b) Whether the circumstances regarding the offender and the offense оr offenses indicate that the offender has a history of persistent criminal activity and that the offender‘s character and condition reveal a substantial risk that the offender will commit another offense;
{¶ 32} “(c) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender‘s history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender‘s conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;
{¶ 33} “(d) Whether the victim‘s youth, age, disability, or other factor made the victim particularly vulnerable to the offense or made the impact of the offense more serious;
{¶ 34} “(e) Whether the offender is likely to commit future crimes in general, in addition to the circumstances described in divisions (B)(1)(b) and (c) of this section.”
{¶ 35} In addition to the factors expressly set forth in
{¶ 36} The statutory guidelines for a first degree misdemeanor offense allow a trial court to sentence the offender to a maximum jail term of 180 days and a maximum
{¶ 37} In sentencing appellant to two consecutive jail terms of five months each, however, the lower court consistently referred to the felony sentenсing statutes. First, the court stated that the hearing was being held pursuant to the requirements of
{¶ 38} Appellant further asserts that the lower court erred in imposing upon him consecutive sentences and seemingly basing that judgment on the fact that the statе, as part of the plea agreement, agreed not to pursue perjury charges against appellant. Appellant bases this argument on a statement that the court made during the sentencing hearing. After the court heard from appellant, and the parties had presented their arguments to the court on the sentencing issues, the court stated:
{¶ 39} “THE COURT: Well, frankly what neither of you mentioned to the Court, and frankly it‘s not even mentioned in the PSI because I don‘t know if it‘s ever gone to adjudication, but that was the Defendant‘s testimony at the trials of the Co-defendants, Mr.—
{¶ 40} “MR. KENNEDY: Winters.
{¶ 41} “THE COURT: -- Winters, which [unintelligible] I understand perjury charges are not [unintelligible].”
{¶ 42} Given the unintelligible portions оf the transcript as noted above, it is impossible to tell from the record to what extent the lower court either considered or did not consider the perjury issue in sentencing appellant. What is clear, is that the presentence investigation report detailed the circumstances of the current offenses аnd documented appellant‘s extensive juvenile and adult criminal history, dating back to 1986 when he was 14 years old. That history includes numerous other theft offenses. Given
{¶ 43} The second assignment of error is not well-taken.
{¶ 44} On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Fulton County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs оf this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Thomas J. Osowik, P.J. JUDGE
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.sconet.state.oh.us/rod/newpdf/?source=6.