STATE OF OHIO, Plaintiff-Appellee -vs- ADAM M. ROSE, Defendant-Appellant
Case No. 18CA005
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 6, 2018
2018-Ohio-4888
Hon. W. Scott Gwin, P.J.; Hon. Patricia A. Delaney, J.; Hon. Earle E. Wise, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County Court of Common Pleas, Case No. 17CR080. JUDGMENT: Affirmed.
For Plaintiff-Appellee SEAN WARNER Prosecuting Attorney Holmes County Prosecutor‘s Office 164 East Jackson Street Millersburg, OH 44654
For Defendant-Appellant DAVID M. HUNTER 244 West Main Street Loudonville, OH 44842
{¶1} Appellant Adam M. Rose [“Rose“] appeals his conviction and sеntence after a negotiated guilty plea in the Holmes County Court of Common Pleas.
Facts and Procedural History
{¶2} Rose was charged by Grand Jury Indictment on October 10, 2017 with, three counts of Domestic Violence in violation of
{¶3} Based upon a plea arrangement Rose pled guilty to two counts of Domestic Violence - misdemeanors of the first degree, one count of Aggravated Menacing - a misdemeanor of the first degree, one count of attempted Aggravated Assault - a felony of the fifth degree, one count of Abduction - a felony of the third degree, one count of Petty Theft - a misdemeanor of the first degree and one count of Prohibitions Concerning Companion Animals - a felony of the fifth degree.
{¶4} On May 10, 2018, Rose was sentenced on his guilty plea to a term of incarceration of thirty-six months on the Abduction charge, twelve months each on the Prohibitions Concerning Companion Animals and Attempted Aggravated Assault to be served consecutively for a total period of incarceration of sixty (60) months. The trial court further sentenced Rose to jail terms of six months each on the Domestic Violence
Assignments of Error
{¶5} Rose raises two assignments of error,
{¶6} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE MAXIMUM SENTENCE FOR HIS FELONY CONVICTION.
{¶7} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES FOR HIS FELONY CONVICTIONS.
I. & II.
STANDARD OF APPELLATE REVIEW.
{¶8} We review felony sentences using the standard of review set forth in
{¶9} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court‘s findings under relevant statutes, or (2) the sentence is otherwise contrary to law.
ISSUES FOR APPEAL.
a).Whether the trial court properly imposed the maximum sentence in Rose‘s case.
b). Whether the trial сourt properly imposed consecutive sentences in Rose‘s case.
R.C. 2929.13(B) .
{¶11}
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction or combination of community control sanctions if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions that are available for persons sentеnced by the court.
Emphasis added.
(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply:
(i) The offender committed the offense while having a firearm on or about the offender‘s person or under the offender‘s cоntrol.
(ii) If the offense is a qualifying assault offense, the offender caused serious physical harm to another person while committing the offense, and, if the offense is not a qualifying assault offense, the offender caused physical harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by the court.
(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department,
within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction that is available for persons sentenced by the court.
(v) The offense is a sex offense that is a fourth or fifth degree felоny violation of any provision of
Chapter 2907. of the Revised Code .(vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.
(vii) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that сaused physical harm to a person.
(viii) The offender held a public office or position of trust, and the offense related to that office or position; the offender‘s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender‘s professional reputation or position facilitated the offense or was likely to influence the future conduct of others.
(ix) The offender committed the offense for hire or as part of an organized criminal activity.
(x) The offender at the time of the offense was serving, or the offender previously had served, a prison term.
(xi) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.
Emphasis added.
{¶12} In the case at bar, Rose plead guilty to Abduction, a felony of the third degree. Rose was previously convicted of Robbery and Felonious Assault. (Sent. T. at 4). Rose was on probation at the time of committing these offenses. (Sent. T. at 16). Accordingly, the court had discretion to impose a prison term for the fifth degree felonies.
R.C. 2929.13(C) .
{¶13}
{¶14} According to
R.C. 2929.11 and R.C. 2929.12 .
{¶15} The Marcum court further noted,
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an apрellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
146 Ohio St.3d at ¶23, 2016-Ohio-1002, 59 N.E.3d 1231 (emphasis added).
{¶16}
{¶17}
{¶18} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the court discussed the effect of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court severed the judicial-fact-finding portions of
{¶19} “Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under
{¶20} Thus, 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. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions.
{¶21} There is no requirement in
{¶22} In the case at bar, the trial court heard the victim, the victim‘s stepfather, the victim‘s sister and the victim‘s mothеr. (Sent. T. at 9-12.) The court heard from Rose‘s attorney, the state‘s attorney and Rose. The trial court reviewed the presentence investigation report, the investigation reports, the victim impact statements and the appellant‘s sentencing memorandum. (Sent. T. at 16).
{¶23} In the case at bar, the record supports that the harm caused the victim was “serious physical harm” [
{¶24} Accordingly, the trial court considered the purposes and principles of
R.C. 2929.13(D) .
{¶25}
R.C. 2929.14 (B)(2)(e) .
{¶26}
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶27}
{¶28} In Ohio, there is a statutory presumption in favor of concurrent sentences for most felony offenses.
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish thе offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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 sеction
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 offenses 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.
(с) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶30} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons tо support its findings.
{¶31} Furthermore, the sentencing court is not required to recite “a word-for-word recitation of the language of the statute.” Bonnell, ¶29. “[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the
{¶32} In this case, the record does support a conclusion that the trial court made all of the findings required by
{¶33} The trial court considered this factor. Sent. T. at 18.
{¶34} This provision does apply to Rose‘s case. Sent. T. at 16; 18.
{¶35} The trial court considered this factor. Sent. T. at 18.
{¶36} The trial court made a specific finding concerning this factor.
R.C. 2929.20 .
{¶37}
{¶38} In the case at bar, the plea was in exchange for the state dismissing or reducing several felony charges.
{¶39} Given that the trial court is not obligated to refer to every factor listed in
{¶40} Accordingly, the trial court considered the purposes and principles of sentencing [
{¶41} Upon review, we find that the trial court‘s sentencing on the сharges complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. We also find that the record in the case at bar supports the trial court‘s findings under
{¶43} Roses’ First and Second Assignments of Error are overruled.
{¶44} The judgment of the Holmes County Court of Common Pleas is affirmed.
By Gwin, P.J,
Delaney, J., and
Wise, Earle, J., concur