STATE OF OHIO, Plaintiff-Appellee, - vs - NICHOLAS C. PETTI, Defendant-Appellant.
CASE NO. 2012-L-045
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
December 24, 2012
[Cite as State v. Petti, 2012-Ohio-6130.]
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR 000019. Judgment: Affirmed.
David L. Doughten, 4403 St. Clair Avenue, Cleveland, OH 44103-1125 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
O P I N I O N
{¶1} Appellant, Nicholas C. Petti, appeals the judgment of the trial court sentencing him to 19 years in prison. Appellant claims the trial court erred when it sentenced him without fully considering the issue of proportionality pursuant to
{¶2} Appellant entered a plea of guilty to robbery, a felony of the third degree, in violation of
{¶3} At his initial sentencing hearing, appellant was sentenced to a prison term of four years for robbery and nine years for aggravated robbery, to be served concurrently for a total of nine years. In addition, appellant was ordered to serve a term of ten years on the RVO specification prior to and consecutive to the above-stated prison term. Thus, appellant was sentenced to a total prison term of 19 years.
{¶4} Appellant appealed, and this court determined that the trial court erred in sentencing appellant to less than the maximum prison term for his first-degree felony, aggravated robbery. Because appellant was sentenced for an RVO specification under former
{¶5} Appellant was resentenced on April 18, 2012. The trial court sentenced appellant to four years in prison on robbery and ten years in prison on aggravated robbery, which the trial court found as a mandatory term of imprisonment pursuant to
{¶6} The trial court also sentenced appellant to an additional term of nine years in prison, pursuant to former
{¶7} Appellant filed a notice of appeal and, as his sole assignment of error, alleges:
{¶9} Appellant alleges the trial court erred when it sentenced him without fully considering the issue of proportionality pursuant to
{¶10} We have previously explained that in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Ohio Supreme Court established a two-step analysis for an appellate court reviewing a felony sentence. In the first step, we consider whether the trial court adhered to all applicable rules and statutes in imposing the sentence. Id. at ¶26. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in
{¶11} As the Ninth Appellate District observed:
{¶12} Kalish did not specifically provide guidance as to the laws and rules an appellate court must consider to ensure the sentence clearly and convincingly conforms with Ohio law. The specific mandate of Kalish is that the sentence fall within the statutory range for the felony of which a defendant is convicted. State v. Gooden, 9th Dist. No. 24896, 2010-Ohio-1961, ¶48, citing Kalish at ¶15.
{¶13} Next, if the first step is satisfied, we consider whether, in selecting the actual term of imprisonment within the permissible statutory range, the trial court abused its discretion. Kalish, supra, ¶26. An abuse of discretion is the trial court s failure to exercise sound, reasonable, and legal decision-making. State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black s Law Dictionary 11 (8th Ed.2004).
{¶14} Addressing the first step of the Kalish test, appellant entered a plea of guilty to robbery, a felony of the third degree, in violation of
{¶15} Appellant s sentence was therefore within the statutory range for these offenses and did not run afoul of sentencing laws existing at the time of his sentencing.
{¶16} We next address the second step of Kalish: whether the sentence selected by the trial court was an abuse of discretion.
{¶17} While the trial court is required to consider the
{¶18} Despite this, appellant argues the trial court failed to conduct a proportionality analysis as required by
{¶19}
{¶20} A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
{¶21} Although appellant argues that the better practice would be to require the sentencing court to make findings explaining why the seemingly disproportionate sentence was justifiable under
{¶23} When I take a look at this case we are dealing with mandatory time, we re dealing with an individual who is categorically a repeat violent offender as defined by statute because of the nature of the offenses here. We have a situation where because of the nature of the offense, because of the nature of the concern of this Court and this judge about recidivism I have no choice but to impose what I perceive to be the maximum sentence which needs to be imposed in this case also to then back that up with a repeat violent offender sentence.
{¶24} For the reasons stated in the opinion of this court, appellant s assignment of error is without merit. It is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
THOMAS R. WRIGHT, J.,
concur.