State v. RobinsonState v. Robinson
{¶1} Defendant-appellant Casey J. Robinson [“Robinson”] appeals his sentences on robbery a felony of the third degree in violation of
Facts and Procedural History
{¶2} Robinson was indicted on the following: Count 1) Aggravated Robbery, a felony of the first degree with a firearm specification; Count 2) Theft (less than $1,000), a first-degree misdemeanor; Counts 3 and 4) Felonious Assault, both felonies of the second degree.
{¶3} On December 3, 2012, pursuant to a written plea agreement, Robinson withdrew his former pleas of not guilty and entered a plea of “guilty” to an amended Count 1, to-wit: Robbery, a felony of the third degree with a firearm specification. In exchange, the state agreed not to make a recommendation and to leave sentencing to the discretion of the Court. The State further agreed to Nolle Counts 2, 3, and 4 at the time of sentencing.
{¶4} On January 14, 2013, Robinson returned to court for sentencing. The Court then ordered Robinson serve a mandatory prison term of three years on the firearm specification and a prison term of 30 months on the robbery conviction. The sentences were ordered to be served consecutively. The Court further informed Robinson that he was subject to a mandatory period of post release control for 3 years upon his release from prison.
{¶5} Robinson raises one assignment of error,
{¶6} “I. THE TRIAL COURT VIOLATED THE APPELLANT‘S CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT SENTENCED THE APPELLANT, A FIRST-TIME FELONY OFFENDER, TO A NEAR- MAXIMUM PENALTY.”
Analysis
{¶7} Robinson contends that the trial court abused its discretion by sentencing him to serve 30 months in prison for his robbery conviction.
{¶8} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 as it relates to the remaining sentencing statutes and appellate review of felony sentencing. See, State v. Snyder, 5th Dist. No. 2008-CA-25, 2008-Ohio-6709, 2008 WL 5265826.
{¶9} In Kalish, the Court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the judicial fact-finding portions of
{¶11} “Thus, despite the fact that
{¶12} Therefore, Kalish holds that, in reviewing felony sentences and applying Foster to the remaining sentencing statutes, the appellate courts must use a two-step approach. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment shall be reviewed under an abuse of discretion standard.” Kalish at ¶4, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶13} The Supreme Court held, in Kalish, that the trial court‘s sentencing decision was not contrary to law. “The trial court expressly stated that it considered the
{¶14} In the case at bar, Robinson pled guilty and was convicted of a felony of the third degree. Sentences that a court can impose are nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
{¶15} Upon review, we find that the trial court‘s sentencing on the charge complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in Sections
{¶16} Having determined that the sentence is not contrary to law we must now review the sentence pursuant to an abuse of discretion standard. Kalish at ¶4; State v. Firouzmandi, supra at ¶40.
{¶17} Post-Foster, “there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶42.
{¶18} There is no requirement in
{¶19} Where the record lacks sufficient data to justify the sentence, the court may well abuse its discretion by imposing that sentence without a suitable explanation. Where the record adequately justifies the sentence imposed, the court need not recite its reasons. In other words, an appellate court may review the record to determine whether the trial court failed to consider the appropriate sentencing factors. State v. Firouzmandi, 5th Dist No. 2006-CA41, 2006-Ohio-5823 at ¶ 52.
{¶20} Accordingly, appellate courts can find an “abuse of discretion” where the record establishes that a trial judge refused or failed to consider statutory sentencing
{¶21} In the case at bar, the court had the benefit of a pre-sentence investigation report. Robinson was twenty-years old at the time of sentencing. He has never held a full-time or part-time job. (Sent. T. at 6). He has a prior assault conviction in March 2011. (Id.). Further, the court noted,
[THE COURT]: Aggravated menacing July of 2011, allegations there you went to a lady’s house and left three bullets in the bedroom and told her next time they were going in her head, sound accurate?
[ROBINSON]: Yes, sir.
[THE COURT]: Drug abuse and resisting arrest, 2012?
[ROBINSON]: Yes sir.
[THE COURT]: 35 total adjudication in Muskingum County as a juvenile? [ROBINSON]: Yes sir.
[THE COURT]: Looks like you posted bond in this case, and then revoked because you tested positive for THC?
[ROBINSON]: Yes, sir.
* * *
[THE COURT]: Mr. Robinson, the three years [on the firearm specification] are mandatory, so you have to serve those. The 30-months is not mandatory time. At some point during that 30-month period, it’s potential that you could file for judicial release...and go through a program, some other possible in-house program.
Sent. T. at 6-7; 10).
{¶22} In the sentencing entry filed January 16, 2013, the trial court noted specifically that it had considered the principles and purposes of sentencing under
{¶23} There is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of Robinson‘s case to suggest that his sentence was based on an arbitrary distinction that would violate the
{¶25} Robinson’s sole assignment of error is overruled.
{¶26} For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN
WSG:clw 0617
For the reasons stated in our accompanying Memorandum-Opinion, the decision of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN