State v. SaundersState v. Saunders
Rendered on the 28th day of January, 2011.
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STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, Ohio 45419
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Craig Saunders appeals from a judgment of the Greene County Court of Common Pleas, which found him guilty on his guilty pleas of two counts of theft, sentenced him to an aggregate prison term of eighteen months, and ordered him to pay restitution. For the following reasons, the judgment of the trial court will be affirmed.
I
{¶ 3} The indictment did not include facts regarding the amount of money or the circumstances of either offense. Count I contained a specification that the value of the property taken was greater than $5,000; theft of over $5,000 is a fourth degree felony.
{¶ 4} At the plea hearing on Septembеr 21, 2009, the State alleged, and Saunders pled guilty to, the following offenses: The basis for Count I was that Saunders received $79,937.70 from a decedent‘s daughter in 2005 to pay estate disbursements, including estate tax, but kept $40,806.11 for himself, in violation of
{¶ 5} The trial court found Saunders guilty and ordered a presentence investigation; on December 14, 2009, it conducted a sentencing hearing. The court sentenced Saunders to eighteen months on Count I and to twelve months on Count II, to be served concurrently. These sentences were the maximum allowable sentences
{¶ 6} Saunders appeals from his convictions, raising one assignment of error.
II
{¶ 7} Saunders’ assignment of error states:
{¶ 8} “THE TRIAL COURT ERRED IN THE IMPOSITION OF SENTENCE.”
{¶ 9} Saunders contends that the trial court “did not review and/or consider all of the relevant factors as required by the Ohio Revised Code and by case law in the State of Ohio” and that, if it had done so, it would not have imposed the maximum sentences for his offenses. Saunders points out that he was a law school graduate with no prior criminal record, that he “demonstrated a genuine sense of remorsе,” that his likelihood of recidivism was low, that he had no substance abuse problem, and that he “had suffered the loss of his license and faced public scrutiny for his offenses.”
{¶ 10} The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum, consecutive, or more than minimum sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶31. Nevertheless, in exercising its discretion, the trial court must consider the statutory policies that apply to every felony offense, including those set out in
{¶ 11} Under
{¶ 12} “When reviewing felony sentences, an appellate court must first determine whethеr the sentencing court complied with all applicable rules and statutes in imposing the sentence, including
{¶ 13} Saunders’ conviction for theft in an amount over $5,000 was a fourth
{¶ 14} At the sentencing hearing, the trial court stated that it had fully considered the information contained in the presentence investigation report, the information presented at the hearing, and the record. It stated that it had also considered the factors pertaining to the seriousness of the offense and to recidivism and found that prison was consistent with the purposes and principles of sentencing set forth under
{¶ 15} Having concluded that Saunders’ sentence was not contrary to law, we must consider whether the trial court abused its discretion in imposing the sentence that it did. Watkins at ¶41. “[I]n the felony sentencing context, ‘[a]n abuse of discretion can be found if the sentencing court unreasonably or arbitrarily weighs the factors in
{¶ 16}
{¶ 17} (1) The physical and mental injuries suffered by the victim of the offense due to the conduct of the offender were exacerbated because of the physiсal and mental condition or age of the victim;
{¶ 18} (2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense;
{¶ 19} (3) The offender held a public office or position of trust in the community, and the offense related to that office or position;
{¶ 20} (4) The offender‘s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice;
{¶ 21} (5) The offender‘s professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others;
{¶ 22} (6) Thе offender‘s relationship with the victim facilitated the offense;
{¶ 23} (7) The offender committed the offense for hire or as part of an organized criminal activity;
{¶ 24} (8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion;
{¶ 26}
{¶ 27}
{¶ 28}
{¶ 29} In addition to statutory factors, the court may consider the contents of a presentence investigation report, facts supporting a charge of which the defendant was
{¶ 30} The court was presented with a presentence investigation report, which recounted Saunders’ educational and work experience, including his employment with a management recruiter (where he is paid commission) at the time of sentencing. The report stated that Saunders had the “physical ability” to pay financial sanctions, but did not have “the income to satisfy the amount required.” The report also discussed Saunders’ father‘s effort to get a federal grant for his farm, which could be used to help pay restitution, but it was not clear that the money would be received. The report stated that Saunders was diagnosed with depression (for which he had been prescribed medication), but was otherwise in good physical health.
{¶ 31} The presentence report also expressed the view that Saunders “has shown disregard for prior judgments1 being placed upon him to pay restitution” and “has done little to show great remorse to the victims for the offense.” Based on these observations about Saunders’ attitude toward the offenses, and restitution in particular, the probation officer conditioned its sentencing recommendation on whether Saunders had paid restitution (presumably in the probate case). The presentence report recommended that, if restitution had been paid, Saunders be sentenced to three days in
{¶ 32} At the sentencing hearing, the State asked the court to consider numerous factors, including “unindicted matters” and a “pattern of behavior” in Saunders’ law practice of “not necessarily criminal activity but receiving money for legal work that ultimately wasn‘t done.” The prosecutor also asked the court to consider that there were multiple offenses alleged in this complaint, even though Saunders was technically a “first offender.” The prosecutor pointed out that the amount of money involved in Count I greatly exceeded the amount required to charge that offense as a fourth degree felony ($5,000) and that, in the nine months since his indictment, Saunders had not paid any restitution to the victims, despite many promises to do so. The record does not indicate whether any restitution had been paid in the probate case.
{¶ 33} Several factors set forth in
{¶ 34} The nature of an attorney-client relationship heightens the seriousness of any theft by an attorney from his or her client. See Moraine v. Lewis, 151 Ohio App.3d 526, 2003-Ohio- 460, ¶27 (“Attorneys occupy a special and favored position of trust and confidence vis-à-vis their clients.“). “A fiduciary relationship is one in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust.” In re Termination of Employment of Pratt (1974), 40 Ohio St.2d 107, 115. “The relation between attorney and client is a fiduciary relationship of the very highest character, and bonds the attorney to most conscientious fidelity – uberrima fides.” Cox v. Delmas (1893), 99 Cal. 104, 123, 33 P. 836. Black‘s Law Dictionary defines “uberrima fides” as “The most abundant good faith; absolute and perfect candor or openness and honesty; the absence of any concealment or deception, however slight.” Black‘s Law Diсtionary (6 Ed.Rev.1990) 1520.
{¶ 35} Although Saunders’ offenses were not directly related to his former position as a city prosecutor, in that capacity, he had previously been “obliged *** to prevent the offense or bring others committing it to justice;” the trial court could have reasonably concluded that Saunders’ previous position increased the sеriousness of these offenses. Further, as discussed at the plea hearing, “there were discussions about one potential other charge may be filed (sic) and the State is going to waive filing of that charge;” the court may have considered these non-charged activities. Thus, numerous factors supported the imposition of the sentences in this case.
{¶ 36} Saunders cites the dissent in State v. Sims, Greene App. No. 08CA71, 2009-Ohio-5751, in support of his argument that the trial court did not adequately consider the statutory factors in imposing his sentence, particularly the factors showing that his offense was less serious than conduct typically constituting the offense and that his risk of recidivism was low. However, the basis for the concern expressed in the Sims dissent is not present in Saunders’ case. In Sims, the dissent pointed out that none of the more serious factors of
{¶ 37} In Saunders’ case, there is no indication that the trial court “marginalized” the statutory factors, although it did not discuss them specifically. Several factors weighed in favor of finding a serious form of the offense, particularly his position of trust with respect to the victims. Sаunders made no argument that any of the “less serious” factors applied. Saunders claimed to be remorseful (and we have no reason to doubt this) and to be working diligently toward restitution, but not even a token payment had been made, and Saunders seemed to be relying on his parents to make any payments. Even assuming that Saunders’ risk of recidivism was lоw, the trial court could have
{¶ 38} With the facts presented in this case, we cannot conclude that the trial court abused its discretion in imposing maximum, concurrent sentences for the theft offenses.
{¶ 39} The assignment of error is overruled.
III
{¶ 40} The judgment of the trial court will be affirmed. We return the case to the trial court for execution of sentence by entry or any other means that the trial court deems appropriate.
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GRADY, P.J. and BROGAN, J., concurs.
Copies mailed to:
Stephanie R. Hayden
Jay A. Adams
Hon. Sumner E. Walters, Visiting Judge
Hon. J. Timothy Campbell/Hon. Michael Buckwalter