821 N.E.2d 192 | Ohio Ct. App. | 2004
{¶ 1} Defendant-appellant, Scott R. Taylor ("Taylor"), appeals from the decision of the Lake County Court of Common Pleas, imposing consecutive sentences for two counts of receiving stolen property. For the reasons set forth below, we affirm the decision of the trial court.
{¶ 2} On June 18, 2003, Taylor was indicted by the Lake County Grand Jury for one count of failure to comply with order or signal of police officer, a third degree felony, in violation of R.C.
{¶ 3} On June 19, 2003, Taylor waived his right to be present at the arraignment and the trial court entered not guilty pleas on his behalf. On July 31, 2003, Taylor appeared in court and opted to change his plea to guilty as charged on all counts. After accepting Taylor's pleas, the matter was referred to the Lake County Adult Probation Department for a presentence investigation report, a drug and alcohol evaluation, and a psychiatric evaluation.
{¶ 4} On September 3, 2003, Taylor appeared for his sentencing hearing. The trial court sentenced Taylor to three years for the failure to comply conviction, to be served consecutively with the other convictions as required by R.C.
{¶ 5} "The trial court erred to the prejudice of the defendant-appellant when it ordered consecutive sentences on counts two and three."
{¶ 6} Specifically, Taylor asserts that the trial court misapplied the consecutive sentencing factors contained in R.C.
{¶ 7} Since Taylor's assignment of error challenges the propriety of his sentencing, we first turn to the applicable standards of review. An appellate court reviews a felony sentence under a clear and convincing evidence standard of review. R.C.
{¶ 8} "A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both." R.C.
{¶ 9} To impose consecutive sentences on a defendant, R.C.
{¶ 10} In addition, this court has stated that "R.C.
{¶ 11} Finally, "[w]hen reviewing the imposition of a sentence upon a defendant by a trial court, this court will not disturb the sentence unless we find, *601 by clear and convincing evidence, that the record does not support the sentence or that the sentence is contrary to the law."State v. Fitzpatrick, 11th Dist. No. 2001-L-017, 2002-Ohio-1172, 2002 Ohio App. LEXIS 1207, at *5 (citation omitted).
{¶ 12} Taylor, relying on State v. Johnson (May 11, 2001), 2nd Dist. No. 18383, 2001 Ohio App. LEXIS 2101, argues that the court failed to consider Taylor's "long standing drug and alcohol problem stemming from an abusive childhood" as mitigating factors that do not support the imposition of consecutive sentences under counts two and three. Taylor's reliance on Johnson is misplaced.
{¶ 13} In Johnson, the Second District held that the trial court did not make all of the necessary findings to impose consecutive sentences, discussing at great length the seriousness of the crime and the impact on its victims, but failing to adequately address the necessity of the consecutive sentencing to protect the public or whether consecutive sentences were disproportionate to the danger the defendant posed to the public. In addition, the court was unable to determine clearly from the record, which of the factors contained within R.C.
{¶ 14} Here, by contrast, the trial court, in making its findings, reviewed a video tape taken from cameras installed in each police cruiser involved in the chase, the presentencing report, and Taylor's psychological report. The court also heard from the prosecution, the defense, and Taylor himself. The court then made the following findings on the record:
{¶ 15} "That consecutive sentences are necessary in order to protect the public and punish the offender and are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public. That the offenses were committed while the offender was awaiting trial or sentencing, that he was under warrant for arrest. That the harm that was caused by the multiple offenses was so great or unusual that no single prison term for any one of the offenses committed as part of a single course of conduct that reflect the seriousness of the offender's conduct and that the offender's history of criminal conduct demonstrates that the consecutive sentences are necessary to protect the public from future crime by the offender." Thus, the court's findings satisfied the statutory requirements with respect to the first two factors. Additionally, the court found all three of the factors in 2929.14(E)(4) (a)-(c).
{¶ 16} With respect to each of the factors, the court provided a litany of reasons supporting its findings. The court determined that a police officer had suffered physical harm as a result of the chase and that there was a threat of physical harm to others during the course of the chase and, thus, the harm caused by the multiple offenses was so great or unusual that no single prison term for any of *602 the offenses reflected the seriousness of the conduct. The trial court further found that the chase involved excessive speeds, endangering the lives of others as well as a complete disregard for traffic laws. The court also found that at the time of the offense, Taylor was using stolen license plates and driving with a suspended license. In addition, the trial court found that the offense was committed while Taylor was under a warrant for arrest and while he was under community control sanctions for a previous offense. The court also addressed Taylor's history of criminal convictions and delinquency adjudications, and his failure to respond favorably to previously imposed sanctions, demonstrating the necessity of imposing consecutive sentences to protect the public. We, therefore, cannot find, by clear and convincing evidence, that the trial court's record fails to support a finding allowing for the imposition of consecutive sentences.
{¶ 17} Taylor's final argument, that the court improperly failed to consider his history of substance abuse stemming from an abusive childhood, is also not well taken. On the contrary, the record indicates that the court considered his substance abuse history and his failure to seek treatment up until this point as a factor in determining that Taylor showed no genuine remorse for his actions. In addition, the court relied heavily on Dr. Fabian's psychological report, which indicated a high likelihood that Taylor would relapse and re-offend, even if he received treatment. Furthermore, as this court has previously held, not only is there no case or rule of law supporting the proposition that an offender's drug abuse mitigates against the imposition of consecutive sentences, but that where such factors are considered, courts have found substance abuse, particularly when an offender has demonstrated a history of failure to avail himself of treatment, as a factor that justifies imposing consecutive sentences. State v. Caldwell, 11th Dist. No. 2002-L-142,
{¶ 18} For the foregoing reasons, Taylor's assignment of error is without merit.
{¶ 19} By leave of this court granted on October 14, 2004, Taylor raises the following supplemental assignment of error: "The trial court erred when it imposed consecutive sentences based upon of finding of factors which R.C.
{¶ 20} Under Ohio's sentencing statutes, "if the court [is] imposing a sentence upon an offender for a felony * * *, the court shall impose the shortest prison term authorized for the offense * * * unless * * * the offender previously had served a prison term * * * [or] [t]he court finds on the record that the shortest prison *603
term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender * * *." R.C.
{¶ 21} The range of possible terms for failure to comply with order or signal of police officer, a third degree felony, is one to five years, with an additional statutory requirement that the sentence be served consecutively with any other sentence imposed. The range of possible terms for receiving stolen property, a fourth degree felony, is six to eighteen months. The range of possible terms for receiving stolen property, a fifth degree felony, is six to twelve months.
{¶ 22} In Apprendi v. New Jersey (2000)
{¶ 23} Taylor, relying on Apprendi and Blakely, argues that his consecutive sentence went beyond the "statutory maximum" for Apprendi
purposes since the trial court made a number of factual findings under R.C.
{¶ 24} Under R.C.
{¶ 25} Turning to Taylor's main argument, both Blakely and Apprendi can be distinguished from the instant case, as they deal with the issue of sentencing for a single crime. Courts in Ohio have consistently held that Apprendi does not apply to consecutive sentencing as long as the sentence does not exceed the statutory maximum for each individual underlying offense. See, State v. Carter, 6th Dist. No. L-00-1082, 2002-Ohio-3433 at ¶ 25 (holding that appellant's two eight year consecutive sentences for rape, because they were each within the ten year statutory range for a single offense, did not violate Apprendi.) Accord, State v. Gambrel (Feb. 2, 2001), 2nd Dist. No. 2000-CA-29, 2001 Ohio App. LEXIS 339 at *14; State v. Brown, 2nd Dist. No. 18643, 2002-Ohio-277, 2002 Ohio App. LEXIS 211, at *15 (maximum sentence); Statev. Wilson (Oct. 25, 2002), 6th Dist. No. L-01-1196, 2002-Ohio-5920. Federal courts have likewise held that Apprendi is not implicated in consecutive sentencing. See, United States v. Wingo (C.A.6, 2003), Case Nos. 01-1669, 2003 U.S. App. LEXIS 18828, at **12; United States v.Sauceda (C.A. 6, 2002), Case No. 01-2340, 2002 U.S. App. LEXIS 19118, at **3- ** 4. We find nothing in the holding of Blakely that would change this rule. Since Taylor's individual sentences are all less than the statutory maximum, his supplemental assignment of error is without merit.
{¶ 26} For the foregoing reasons, both of Taylor's assignments of error are without merit. The judgment of the Lake County Court of Common Pleas is affirmed.
O'Neill, J., Rice, J., concur.