State v. RiversState v. Rivers
JUDGMENT: Affirmed.
Atty. Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecutor, 21 W. Boardman St., 6th Floor., Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. John A. McNally, IV, 2236 Burma Dr., Youngstown, OH 44511 for Defendant-Appellant.
Dated: December 20, 2018
{¶1} Defendant-Appellant Stephen A. Rivers appeals after pleading guilty in the Mahoning County Court of Common Pleas to improperly handling a firearm in a motor vehicle, obstructing official business, and operating a vehicle under the influence. He contests the trial court’s sentencing decision on all three counts. Specifically, with regard to the two felonies, Appellant contends the trial court did not properly consider the seriousness and recidivism factors or his military service prior to sentencing. With regard to the OVI count, Appellant argues the trial court erred by imposing a jail term applicable to offenders who had two previous OVI convictions within the past ten years; he argues there was only evidence of one prior conviction presented at sentencing. For the following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On March 15, 2018 Appellant was indicted on five charges: (1) improperly handling a firearm in a motor vehicle in violation of
{¶3} On May 2, 2018, Appellant entered a Crim.R. 11 plea agreement whereby Appellant pled guilty to counts one, two, and five of the indictment; in exchange, the state recommended a sentence of 9 months and dismissed the remaining two counts. The sentencing hearing was held immediately after the plea hearing pursuant to the requests of both the state and defense counsel. The court sentenced Appellant to 12 months in prison on the felonies and a mandatory jail term of 30 days on the unclassified misdemeanor OVI. The court ordered the sentences to run concurrent.
ASSIGNMENTS OF ERROR 1 – 2: FELONY SENTENCING
{¶4} Appellant sets forth three assignments of error. His first two assignments of error correspond to sentencing on the two felonies, and he combines them to argue:
“DEFENDANT’S TWELVE-MONTH TERMS OF IMPRISONMENT UNDER R.C. 2929.12 FOR DEFENDANT APPELLANT’S GUILTY PLEAS TO IMPROPERLY HANDLING A FIREARM IN A MOTOR VEHICLE AND OBSTRUCTING OFFICIAL BUSINESS ARE CONTRARY TO LAW.”
{¶5} The standard of review in a felony sentencing appeal is dictated by
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate courts’ standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶6} From this, the Ohio Supreme Court concluded the plain language of
{¶8}
{¶9} In exercising its discretion to determine the most effective way to comply with the purposes and principles of sentencing,
{¶10}
{¶11}
{¶12} As for recidivism, the following factors indicate an offender is more likely to commit future crimes: (1) the offense was committed while on certain forms of release; (2) prior convictions; (3) the offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child or the offender has not responded favorably to sanctions previously imposed for criminal convictions. (4) the offender has demonstrated a pattern of drug or alcohol abuse related to the offense, and he refuses to acknowledge it or be treated; and (5) the offender shows no genuine remorse.
{¶13} Finally,
{¶15} Some statutes require specific findings to be memorialized on the record. For instance,
{¶16} The Supreme Court has stated when considering the purposes of sentencing under
{¶17} As this court has consistently held, “it is not required that the sentencing court state on the record at the sentencing hearing that it has considered these statutes.” State v. Hardy, 7th Dist. No. 14 MA 30, 2015-Ohio-2206, ¶ 13, quoting State v. Bellard, 7th Dist. No. 12 MA 97, 2013-Ohio-2956, ¶ 11. “[E]ven in the case of a completely silent record—no mention of the factors in the entry or the hearing—this court has held that ‘it will be presumed that the trial court considered the relevant factors in the absence of an affirmative showing that it failed to do so unless the sentence is
{¶18} Furthermore, the sentencing entry explicitly states: “the court has considered the record, the statements and recommendations of counsel and of Defendant, as well as the purposes and principles of sentencing under O.R.C. 2929.11. The court has balanced the seriousness and recidivism factors under O.R.C. 2929.12 * * *.” In addition, the trial court made comments on the record indicating why he felt Appellant should have a sentence three months longer than the nine months recommended by the state. For instance, the court commented:
“Seemed like you go looking for trouble. You go drinking when you know that drinking messes you up, and you know you should be taking your medicine and you don’t take your medicine. And you end up, by the grace of God, instead of hurting this guy real bad or killing this guy, that you just brush him… So you’re on probation when this occurs and you’re drinking when you shouldn’t be drinking, you’re not medicating when you should be medicating. You improperly handled a firearm in a motor vehicle, you’re prohibited from having a firearm… You obstruct official business and you have an unclassified OVI. So I don’t think what the lawyers are recommending is out of line, but I think you need to do a little bit more time in the penitentiary than you would have to do with the recommended sentence.”
(Tr. 24-25). A reading of the sentencing transcript undermines Appellant’s argument that the court did not evince its consideration of the pertinent sentencing factors, which as aforementioned was not even required here.
{¶19} Appellant more specifically contests the trial court’s consideration of
{¶20} Division (F) uses the same language contained in division (B), (C), (D), and (E): the trial court shall consider the factors. Under the analysis set forth above, if the General Assembly intended to require the trial court to make specific findings under
{¶21} Here, statements were presented at sentencing about Appellant’s prior military service, his injuries sustained while in the military, and their potential contribution to the facts surrounding the conviction. (Tr. 19-24). The trial court listened to the comments of the defendant and defense counsel and asked questions about Appellant’s military service and injuries. Not only is there an absence of a showing that the court failed to consider division (F), but the record clearly shows the sentencing judge did consider Appellant’s military service, injuries, and Appellant’s argument as to the injuries contribution to this offense.
{¶22} Appellant seems to make an additional argument that the amount of time between the plea/conviction and sentencing “only a few moments later” is not adequate for the trial court to have considered all the seriousness and recidivist factors found in
{¶23} Appellant was aware the court was not required to accept the nine-month recommendation by the state and could impose a sentence up to the maximum of eighteen months authorized by the statute. (Tr. 5-6). The sentencing court sentenced Appellant to twelve months, three months more than the recommendation, with comments indicating consideration of various sentencing factors. The trial court is not required to specify its consideration of
ASSIGNMENT OF ERROR 3: JAIL SENTENCE UNCLASSIFIED MISDEMEANOR
{¶24} Appellant’s third assignment of error contends:
“SENTENCING DEFENDANT-APPELLANT TO A MANDATORY THIRTY (30) DAY JAIL TERM FOR VIOLATION OF R.C. 4511.19(A)(1)(a) IS CONTRARY TO LAW WHEN DEFENDANT-APPELLANT DID NOT HAVE TWO OR MORE CONVICTIONS UNDER R.C. 4511.19(A)(1)(a) IN THE PREVIOUS TEN YEARS.”
{¶25} For Appellant’s unclassified misdemeanor OVI conviction in violation of
[A]n offender who, within ten years of the offense, previously has been convicted or pleaded guilty to two violations of division (A) or (B) of this section or other equivalent offenses is guilty of a misdemeanor. The court shall sentence the offender to all of the following:
(i) If the sentence is being imposed for a violation of division (A)(1)(a) * * *, a mandatory jail term of thirty consecutive days. * * * The court may impose a jail term in addition to the thirty-day mandatory jail term. Notwithstanding the jail terms set forth in sections 2929.21 to 2929.28 of the revised code, the additional jail term shall not exceed one year, and the cumulative jail term imposed for the offense shall not exceed one year.
(Emphasis added).
{¶26} When asked about Appellant’s record, defense counsel responded, “He had a misdemeanor OVI in Girard Court, Your Honor, that he is still on probation for and has not complied with the license reinstatement fees.” (Tr. 4). Appellant also voiced that he was on probation for a prior OVI conviction arising out of Girard in the winter of 2017. (Tr. 14). From this, Appellant admits there was evidence at sentencing that he had one prior OVI in the past ten years. Such offense would carry a mandatory
{¶27} Appellant contends that without evidence being presented on a second prior OVI, he should not have been sentenced under division (G)(1)(c)(i). However, Appellant pled to an OVI offense listed in the indictment without amendment. Appellant pled to the OVI in count five which was brought under
AND the grand jurors of this County, in the name and by the authority of the State of Ohio, upon their oaths, do find and present that [Appellant] on or about 12/14/2017, in the County of Mahoning aforesaid, and the State of Ohio, within ten years of this offense, [Appellant] having previously been convicted of or pled guilty to two violations of this division, division (A) or (B) of Section 4511.19 of the Revised Code, or a municipal OVI offense, to wit: in the Girard Municipal Court, Case No. 16 TR 4986 on or about 04/09/17 and Mahoning County Area Court #4, Case No. 16 TR 1881 on or about 05/09/16, he did operate any vehicle, streetcar, or trackless trolley, within this state, while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, in violation of Section 4511.19(A)(1)(a) of the Revised Code, an Unclassified Misdemeanor, against the peace and dignity of the State of Ohio.
Accordingly, the two prior OVI offenses appear within the indictment itself.
{¶29} In sum, the court did not err in sentencing Appellant to the mandatory minimum jail term required by the statute. This was the pertinent mandatory minimum, and the court could have imposed a sentence of up to a year on the OVI to which Appellant pled guilty. Therefore, the 30-day jail sentence was not improper, and this assignment of error is overruled.
{¶30} For the foregoing reasons, the trial court’s judgment is affirmed.
Waite, J., concurs.
Bartlett, J., concurs.
For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.