State v. RutterState v. Rutter
OPINION
{¶ 1} Defendant-appellant Danny Rutter appeals his sentence from the Muskingum County Court of Common Pleas on one count of Robbery in violation of R.C.
STATEMENT OF FACTS
{¶ 2} On December 3, 2005, appellant walked into a Kroger‘s grocery store on Maple Avenue, Zanesville, Ohio. While in the store, Loss Prevention Agent, Lori Cain, became suspicious of the appellant‘s actions. After seeing the appellant pick up three packages of meat from the meat department on video camera, Ms. Cain watched as he walked to an area of the store that was unable to be viewed by video camera. Ms. Cain continued to observe the appellant and saw him walk from the “blind” area of the store to one of visibility. Once he was visible, Ms. Cain did not see him carrying the items that he had previously picked up. The appellant made his way out the front door and into the parking lot where Ms. Cain rushed to confront him about the missing items. During this confrontation the appellant became hostile and hit Ms. Cain in the face with his right hand. The appellant tried to run, but Ms. Cain was able to grab his jacket, from which three packages of meat fell to the ground. After a brief struggle where the appellant again swung his fist at Ms. Cain, Jed LaRoche and Jerid Lacy, both employees of Kroger‘s, subdued the appellant until the police could take him into custody.
{¶ 3} Upon being arrested, the appellant admitted to stealing three steaks from Kroger‘s which he intended to sell in order to buy crack cocaine. Appellant further admitted that he had smoked crack cocaine behind the store prior to committing the offenses. The appellant denied striking Ms. Cain.
{¶ 4} Appellant was arraigned on December 14, 2005, on charges of Robbery, a felony of the second degree, and Theft of less than $500, a misdemeanor of the first degree. On February 14, 2006, a jury found appellant guilty to both charges.
{¶ 5} On March 27, 2006, the trial court conducted a sentencing hearing. The court heard testimony from pre-sentence investigator Doug Pollock. Mr. Pollock testified to the fact that the appellant had 82 misdemeanor convictions spanning three counties, served 750 days in the county jail, had previously violated probation, and continued to deny the apparent harm caused to the Kroger‘s Loss Prevention Agent. Mr. Pollock also testified that the Appellant was stealing for the purpose of obtaining drugs and that he had prior felony offenses which had been pled down to misdemeanors. After hearing Mr. Pollock‘s testimony, the trial court ordered the appellant serve eight years in prison for the Robbery conviction and six months of local incarceration for the Theft of less than $500 conviction. The trial court ordered the sentences be served concurrently.
{¶ 6} Appellant timely appeals from his sentence raising the following assignment of error for our consideration:
{¶ 7} “I. THE SENTENCE IMPOSED UPON THE DEFENDANT-APPELLANT WAS CONTRARY TO LAW.”
I.
{¶ 8} In his sole assignment of error, appellant maintains that his sentence is contrary to law. Specifically, appellant argues that because he did not cause serious physical harm to the victim, his conduct is less serious than conduct normally constituting the offense. Therefore, appellant reasons, the trial court‘s imposition of the maximum sentence is contrary to law. We disagree.
{¶ 9} In the case at bar, appellant was convicted of Robbery in violation of R.C.
{¶ 10} For a violation of a felony of the second degree the court must impose a definite prison term of two, three, four, five, six, seven, or eight years. R.C.
{¶ 11} In general, judicial fact-finding is no longer required before a court imposes consecutive or maximum prison terms. See State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856; State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855. Instead, the trial court is vested with discretion to impose a prison term within the statutory range. See Mathis, at ¶ 36. In exercising its discretion, the trial court must “carefully consider the statutes that apply to every felony case [including] R.C.
{¶ 12} Appellant was convicted of a felony of the second degree. Therefore, R.C.
{¶ 13} “(D) Except as provided in division (E) or (F) of this section, for a felony of the first or second degree and for a felony drug offense that is a violation of any provision of Chapter 2925., 3719., or 4729, of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section
{¶ 14} “(1) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under section
{¶ 15} “(2) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under section
{¶ 16} Thus, in order for a trial court to overcome the presumption of imprisonment and impose a community control sanction for a felony of the second degree the trial court would be required to find that such a sanction would adequately punish the offender, that the offender is less likely to re-offend, and that such a sanction would not demean the seriousness of the offense, because the offender‘s conduct was less serious than conduct normally constituting the offense.
{¶ 17} Pursuant to the express language of R.C.
{¶ 18} There is no requirement in R.C.
{¶ 19} We note that the trial court stated in its judgment entry that it considered the purposes and principles of sentencing set forth in R.C.
{¶ 20} Both at the sentencing hearing and in the sentencing entry, the trial court referred to appellant‘s past which includes 82 prior misdemeanor convictions in 3 counties as well as previous probation violations. [R.C.
{¶ 21} Appellant‘s argument that because he did not cause serious physical harm to the security guard the sentence is disproportionate to the seriousness of his crime is not persuasive. That the victim suffered serious physical harm is only one factor for the court to consider in determining the length of sentence. Further in considering whether the offender‘s conduct is less serious than conduct normally constituting the offense, R.C.
{¶ 22} In State v. Kingrey, Delaware App. 04CAA04029, 2004-Ohio-4605, this Court analyzed the proportionality and consistency arguments concerning Ohio‘s sentencing statutes:
{¶ 23} “When reviewing a sentence imposed by the trial court, the applicable record to be examined by the appellate court includes the following: (1) the pre-sentence investigation report; (2) the trial court record in the case in which the sentence was imposed; and (3) any oral or written statements made to or by the court at the sentencing hearing at which the sentence was imposed. R.C.
{¶ 24} “R.C.
{¶ 25} “The court in State v. Ryan, Hamilton App. No. C-020283, 2003-Ohio-1188, applied principles set forth in an article by Judge Burt Griffin and Professor Lewis Katz clarifying for appellate courts the basic principles for achieving the overriding purpose of felony sentencing as: (1) reasonableness, (2) proportionality, and (3) consistency. Id., citing Griffin and Katz, Sentencing Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan (2002), 53 Case W.R.L.Rev. 1, 12. See also, State v. Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341 at ¶ 18.
{¶ 26} “In applying those principles, the court, citing Griffin and Katz, stated that `[t]he Ohio plan attempts to assure proportionality in felony sentencing through consistency. R.C.
{¶ 27} “Simply pointing out an individual or series of cases with different results will not necessarily establish a record of inconsistency. State v. Gorgakopoulos, supra, at ¶ 23. The Ninth District Court of Appeals has stated: `[i]t is not the trial court‘s responsibility to research prior sentences from undefined, and largely unavailable, databases before reaching its sentencing decision. The legislature did not intend to place such a burden on the trial court when it enacted 2929.11(B). The legislature‘s purpose for inserting the consistency language contained in R.C.
{¶ 28} “In State v. Hill (1994), 70 Ohio St.3d 23, 635 N.E.2d 1248, the defendant was convicted of complicity to trafficking in marijuana, and sentenced to one year in prison and further ordered to forfeit his apartment complex. His co-defendant received probation instead of a prison sentence. Id. at 29, 635 N.E.2d at 1252. On appeal, he argued that the trial court abused its discretion by giving him a harsher sentence than was given his co-defendant. Id. The Ohio Supreme Court observed: `[t]here is no question that on its face the sentence received by appellant, when compared to Newbauer‘s punishment, is disproportionate. Given the fact that Newbauer received probation, appellant‘s one-year prison sentence does appear to be harsh. However, as a general rule, an appellate court will not review a trial court‘s exercise of discretion in sentencing when the sentence is authorized by statute and is within the statutory limits. See, generally, Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 24, 34 O.O.2d 13, 14, 213 N.E.2d 179, 180-181. See, also, State v. Cassidy (1984), 21 Ohio App.3d 100, 102, 21 OBR 107, 108-109, 487 N.E.2d 322, 323; State v. Burge (1992), 82 Ohio App.3d 244, 249, 611 N.E.2d 866, 869; and State v. Grigsby (1992), 80 Ohio App.3d 291, 302, 609 N.E.2d 183, 190.
{¶ 29} “`In the case sub judice, the trial court followed the sentencing scheme set forth by the General Assembly and apparently elected the median imprisonment permitted for a fourth-degree felony. See R.C.
{¶ 30} Our review of the record herein does not demonstrate the trial court failed to consider the seriousness and recidivism factors of R.C.
{¶ 31} Although the sentence may appear harsh, we do not find that the sentence was so unusual as to be considered outside the mainstream of local judicial practice.
{¶ 32} Appellant‘s sole assignment of error is overruled.
{¶ 33} For the foregoing reasons, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum Co