2005 Ohio 1425 | Ohio Ct. App. | 2005
{¶ 2} On the evening of December 27, 2003, appellant broke and entered into the home of an eighty (80) year-old woman ("the victim"). At the time of the break-in, the victim was sleeping on her couch and awoke to find appellant standing in her living room. At one point, the victim was able to momentarily escape through the front door of her house and ran into the street. Appellant gave chase, knocked the victim to the ground, kicked her, and dragged her by her hair and arms back into her residence. Once back inside the house, appellant forced the victim into the bedroom, physically assaulted her, and raped her. Thereafter, appellant took money from the victim's purse, threatened to kill her if she called the police, exited the house, stole the victim's motor vehicle, and drove away from the victim's residence.
{¶ 3} Stemming from this incident, appellant was indicted and charged with five separate criminal offenses.1 Thereafter, on June 4, 2004, appellant entered into a plea agreement with the state in which appellant pleaded guilty to one count of Rape in violation of R.C.
{¶ 4} Subsequent to appellant's entry of the two guilty pleas, the trial court sentenced appellant to consecutive prison terms of six (6) and ten (10) years, respectively, for the burglary and rape offenses, resulting in an aggregate prison sentence of sixteen (16) years.
{¶ 5} It from this judgment that appellant now appeals and sets forth one assignment of error for our review.
{¶ 6} In this assignment of error, appellant asserts that the trial court's order sentencing appellant to more than the minimum sentence of two years in prison for the offense of burglary, to the statutory maximum term of ten years for the offense of rape, and to serve these sentences consecutively are contrary to the United States Supreme Court's decision in Blakely v. Washington (2004), 542 U.S. ___,
{¶ 7} Upon review, if an appellate court clearly and convincingly finds that the record does not support a sentencing court's required findings or determines that a sentence is otherwise contrary to law, R.C.
{¶ 8} Before a trial court may impose a sentence in excess of the statutory minimum, impose the maximum prison sentence for the particular offense, or order that multiple prison sentences be served consecutively, the trial court must make certain findings and, for maximum and consecutive sentences, must give its reasons for doing so on the record. See R.C.
{¶ 9} In the case herein, appellant concedes that the trial court made the necessary findings required by R.C.
{¶ 10} This court has addressed the application Blakely to Ohio's felony sentencing statutes in State v. Trubee, 3d Dist. No. 9-03-65, 2005-Ohio-552, wherein this court recognized the differences between the Washington state sentencing framework found unconstitutional in Blakely and the determinations that an Ohio sentencing court must make before imposing a felony sentence under Ohio law. In Trubee, we determined that:
Unlike the Washington statute, the sentencing "range" created by R.C.
Thus, once a criminal defendant enters a plea of guilty, Ohio's felony sentencing statutes allow a trial court to sentence a criminal offender to a term of imprisonment that is within the overall statutorily prescribed range of sentences provided by R.C.
{¶ 11} Appellant next asserts that even if the United States Supreme Court's decision in Blakely, supra, is inapplicable to the case herein, the trial court's imposition of consecutive sentences, nonetheless, remains contrary to law.
{¶ 12} R.C.
{¶ 13} However, as pertinent to this appeal, before a trial court may find that "consecutive sentences are not disproportionate * * * to thedanger the offender poses to the public;" as required by R.C.
{¶ 14} Prior to making this specific finding the trial court reviewed the victim impact statement, appellant's pre-sentence investigation report, and, in addition, listened to a statement written by the victim which was read into the record by the victim's son-in-law. After considering all of the evidence and the facts of the case and applying them to the recidivism factors listed in R.C.
[i]n reaching this conclusion, the court takes into account the * * *the recidivism factors. The recidivism factors reflect that the defendant* * * has other history of criminal convictions. The defendant hasdemonstrated a pattern of drug or alcohol abuse related to this offenseand has in the past acknowledged the pattern of that offense.
The record herein makes evident that the trial court also considered the list of "less likely" recidivism factors provided by R.C.
{¶ 15} Based on the preceding, it is evident that the trial court properly considered and applied the recidivism factors provided by R.C.
{¶ 16} Specifically, it is undisputed that at the time of sentencing appellant had five (5) prior misdemeanor convictions, which included convictions for assault, resisting arrest, and three traffic offenses, and in addition, also had an outstanding warrant for his arrest for a fourth degree misdemeanor charge of persistent disorderly conduct. In addition, while appellant admitted during the sentencing hearing that he has a problem with drug and alcohol abuse, he did not indicate that he had obtained or was willing to seek, treatment for his addictions. Appellant further admitted that he was under the influence of drugs and alcohol at the time when he committed the offenses herein. Finally, although not expressly found by the trial court, we further note that the circumstances under which the offenses herein occurred indicate that appellant is capable of unprovoked, random, violent criminal acts that could easily recur if appellant remained a part of free society. See R.C.
{¶ 17} In conclusion, we do not find by clear and convincing evidence that the trial court's order of consecutive sentences is contrary to law. Accordingly, appellant's sole assignment of error is hereby overruled. Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed. Bryant and Shaw, J.J. concur.