State v. PeckState v. Peck
STATE OF OHIO PLAINTIFF-APPELLANT
vs.
RICKY PECK DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-511394
BEFORE: Stewart, J., Rocco, P.J., and Blackmon, J.
RELEASED: September 10, 2009
ATTORNEYS FOR APPELLANT
William D. Mason Cuyahoga County Prosecutor
BY: Mary McGrath Brad S. Meyer Assistant County Prosecutors The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Steve W. Canfil Standard Building, Suite 2000 1370 Ontario Street Cleveland, OH 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellee, Ricky Peck, pleaded guilty to one count of receiving stolen property, a fifth degree felony. The court sentenced Peck to serve 45 days in the county jail and ordered him to make restitution to the victim in the amount of $1,500. The state of Ohio appeals from this sentence pursuant to
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{¶ 2} The state first argues that the court should have imposed a term of postrelease control as a means of enforcing the ordered restitution.
{¶ 3} Even assuming that the state is correct in its argument that postrelease control should have been ordered as a means of enforcing the restitution order, we cannot rectify that error because Peck would have long ago been released from confinement, thus barring the imposition of postrelease control. The court offset the 45-day period of residential sanction with Peck‘s time-served while awaiting trial. It is unclear from the record exactly how many days of residential sanction Peck would be required to serve after that offset. But given that more than eight months have elapsed since sentencing, there appears to be little likelihood that Peck is still
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{¶ 4}
{¶ 5} Peck pleaded guilty to a violation of
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{¶ 7} The state argues that a community control sanction is absurdly short because Peck is a repeat offender with “approximately 18 felony convictions over the course of 25 years.” It further argues that in this and other cases the court has “ignore[d] that part of the goals of felony sentencing is to punish the offender.” Appellant‘s Brief at 6.
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{¶ 9} Although the court must consider the statutory factors contained in
{¶ 10} Moreover, the court‘s discretion to impose a community controlled sanction is broad –
{¶ 11} The court‘s sentencing entry states that the court considered all required factors of the law, so it fulfilled its legal obligations. Moreover, we find no abuse of discretion on the record before us. The state failed to offer any evidence of Peck‘s prior felony record at the time of sentencing. In related circumstances, we have held that a defendant who claims a sentence is disproportionate to sentences imposed on other offenders must raise the issue to the trial court and present evidence to support the claim and preserve it on appeal. State v. Redding, Cuyahoga App. No. 90864, 2008-Ohio-5739, at ¶18, fn. 7. Having offered no evidence of Peck‘s prior criminal history, the state failed to preserve the issue for appeal.
{¶ 13} And even if the state had offered such evidence, it would be difficult to conclude that the court abused its broad discretion by ordering Peck to serve a community residential sanction. The court considered the circumstances of the crime based on Peck‘s and defense counsel‘s statements during sentencing. The court also considered that, despite having served a prior prison term, Peck was not then on postrelease control and nearly one year had elapsed with Peck being on good conduct. On these facts, an abuse of discretion would not have been shown.
{¶ 14} Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR