STATE OF OHIO v. MICHAEL J. PAVLINA
No. 99207
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 22, 2013
[Cite as State v. Pavlina, 2013-Ohio-3620.]
Jones, P.J., Kilbane, J., and E.T. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-567544
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Oio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Russell
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Michael Pavlina, appeals from the trial court‘s sentencing judgment, wherein it sentenced Pavlina to a maximum 12-month prison term in this case, to be served consecutively to a 12-month prison term in another case, Cuyahoga C.P. Case No. CR-551609. We affirm in part and reverse in part, and remand.
{¶2} In October 2012, Pavlina was indicted by way of information on a single charge of drug possession, a felony of the fifth degree; he pleaded guilty to the charge. The charge in this case resulted in a violation of the terms of his community control sanctions in CR-551609. The trial court sentenced him on the two cases at the same hearing. The court sentenced him to the maximum term of 12 months on this case, and ordered that it be served consecutively to the other case. Pavlina now raises two assignments of error fоr our review:
I. The trial court committed plain error when it failed to make statutorily necessitated findings before imposing consecutive sentences.
II. The trial court abused its discretion in imposing maximum, consecutive sentencеs.
{¶3} In his first assignment of error, Pavlina contends that the trial court erred in sentencing him to consecutive terms without making the statutorily mandated findings.
{¶4}
{¶5} Under
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offensеs were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Id.
{¶6} In sentencing Pavlina, the trial court discussed his prior criminal record, which dated back to juvenile adjudications in 1988. Pavlina also had numerous adult convictions, starting in 1989, which included aggravated burglary and domestic violence. Pavlina was placed on community control sanctions for some of his convictions, and violated the terms of those sanctions in most instances. For examрle, in CR-551609, Pavlina was placed on community control so that he could get treatment; Pavlina admitted
{¶7} Based on Pavlina‘s prior criminal history, the court stated: “Clearly, you have not benefitted from * * * incarceration, nor have you benefitted from * * * community control. You have violated almost every time.”
{¶8} The court made the following findings:
The Court finds * * * that this offense was committed while the defendant was on a term of community control. The Court finds that the defendant‘s criminal history as outlined on the record * * * shows that consecutive terms * * * are necessary to protect the public based upon this defendant‘s extensive history and failure to comply with any conditions of probation.
* * *
Based on the findings necessary under House Bill 86, taking into consideration this defendant‘s history, the fact he was on probation to this Court when the offense was committed, the fact thаt he blatantly lied to his [probation officer] about receiving treatment, which was the sole goal that this Court wanted for him, the fact that he has been a constant problem to the Strongsville Police Department with regard to bеing drunk and disorderly as outlined in the arrest reports in the probation report, the Court finds consecutive sentences are necessary.
{¶9} The trial court‘s judgment entry of conviction and sentence states:
The court considered all required factors of law. The court finds that prison is consistent with the purpose of
R.C. 2929.11 .* * *
The court finds that this defendant has an extensive criminal history, has not benefitted from prior incarcerations or community control sanctions, сommitted the instant offense while on community control to this court, and intentionally mislead his probation officer about attending drug treatment (which was the sole purpose of his community control sanctions).
The court is of the position that a single sentence would demean the seriousness of the defendant‘s criminal behavior and that consecutive sentences are necessary to fulfill the purposes of felony sentencing.
{¶10} The court here made all but one — regarding disproportionality — of the required findings under
{¶11} On the record before us, the trial court did not engage in the appropriate analysis to support a finding that consеcutive sentences are not disproportionate to the seriousness of Pavlina‘s conduct and to the danger he poses to the public.
{¶12} In light of the above, the first assignment is sustained and the case is remanded to the trial court to consider whether consecutive sentences are appropriate, and if so, to enter the proper findings on the record. See State v. Dodson, 8th Dist. Cuyahoga No. 98521, 2013-Ohio-1344, ¶ 11, citing State v. Walker, 8th Dist. Cuyahoga No. 97648, 2012-Ohio-4274, ¶ 87.
{¶13} For his second assigned error, Pavlina contends that the trial court errеd in sentencing him to the maximum 12 months for his fifth-degree felony.
{¶14} A sentencing court must consider the principles and purposes of sentencing in
{¶15} Although a sentencing judge was formerly required to engage in detailed judicial fact-finding in order to justify imposing maximum sentences, this is no longer the case. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. Rather, the decision to impose the maximum sentence is simply part of the trial court‘s overall discretion in issuing a felony sentence.
{¶16} Pаvlina contends that his prior criminal record, which the trial court relied on in sentencing him, did not “speak to either [R.C.] 2929.11 or 2929.12 — except as to whether [he] should or should not have been granted community control sanctions” and, therefоre, the trial court erred in imposing the maximum sentence. We disagree.
{¶17} The trial court considered “all required factors of the law” and found that “prison is consistent with the purpose of
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 making restitution to the victim of the offеnse, the public, or both.
Id.
{¶18} The trial court explained that the sentence it imposed on Pavlina was based
{¶19}
{¶20} In light of the above, the 12-month maximum sentence was proper. The seсond assignment of error is, therefore, overruled.
{¶21} The trial court‘s judgment is affirmed as it relates to the 12-month sentence, but reversed as it relates to making it consecutive to the sentence in CR-551609; case remanded.
It is ordered that аppellant and appellee split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTING:
{¶22} I agree with the majority opinion insofar as it affirms Pavlina‘s 12-mоnth sentence for his fifth-degree felony. However, I respectfully dissent from its decision to reverse Pavlina‘s consecutive sentence.
{¶23} The majority determined the trial court failed to make a finding that “consecutive sentenсes are not disproportionate to the seriousness of the offender‘s conduct and to the danger he poses to the public” as required by
{¶24} There is no provision in
{¶25} In this case, the trial court held a lengthy hearing and made many thoughtful findings on the record. It discussed Pavlina‘s lengthy criminal rеcord that included
{¶26} Therefore, I would affirm the trial court‘s judgment.