2007 Ohio 2218 | Ohio Ct. App. | 2007
{¶ 2} The following is a summarization of the underlying facts giving rise to appellant's convictions and is taken from the pre-sentence investigation report. On January 17, 2006, Columbus police were dispatched to an alleged burglary in progress. The caller of the report was inside his residence at 1558 Atcheson Street, Columbus, Ohio, and advised that three men, later identified as appellant, James Peppers ("Peppers"), and Jarvis Williams ("Williams"), kicked in the door and gained entry to the other half of the duplex. According to the caller, he saw the men trying to kick in the neighbor's front door, whereupon he immediately called the police. The caller also heard the men going through his neighbor's residence and then exit out the back door. The caller then heard the men trying to kick in the rear door of his residence as the police arrived. One of the responding officers observed three males trying to kick the rear door at 1558 Atcheson. Seeing a handgun, the officer instructed the men to drop their weapons and get on the ground. Peppers and Williams, who were both carrying handguns, complied with the officers' orders, but appellant fled the scene. Appellant was apprehended a short time later.
{¶ 3} Appellant was indicted on January 27, 2006 on two counts of attempted aggravated burglary with specification, one count of burglary with specification, and one count of having a weapon under a disability. On May 9, 2006, appellant entered a plea of guilty to one count of attempted aggravated burglary with specification, a felony of the second degree in violation of R.C.
{¶ 4} Appellant appeals his sentence asserting the following two assignments of error for our review:
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT VIOLATED DEFENDANT-APPELLANT'S DUE PROCESS RIGHTS WHEN IT IMPOSED A SENTENCE UPON HIM WHICH WAS INCONSISTENT WITH SENTENCES IMPOSED UPON CO-DEFENDANTS FOR SIMILAR OFFENSES.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED AT SENTENCING WHEN IT FAILED TO CONSIDER MITIGATING FACTORS OF DEFENDANT-APPELLANT'S CONDUCT PURSUANT TO OHIO REVISED CODE §
2929.12 (C)(4).
{¶ 5} Because they are interrelated, appellant's two assignments of error will be addressed jointly. Together, appellant's two assignments of error challenge the imposed sentence and specifically allege the sentence is too harsh because he received a similar sentence to that of his co-defendants, even though his co-defendants were older than he and were allegedly more culpable.1
{¶ 6} Appellant was sentenced after the Supreme Court of Ohio renderedState v. Foster,
{¶ 7} Pursuant to R.C.
{¶ 8} Pursuant to R.C.
*5(A) 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.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
{¶ 9} R.C.
{¶ 10} Here, in its sentencing entry, the trial court stated that it "considered the purposes and principles of sentencing set forth in R.C.
{¶ 11} With respect to the consistency requirements of R.C.
Consistency, however, does not necessarily mean uniformity. Instead, consistency aims at similar sentences. Accordingly, consistency accepts divergence within a range of sentences and takes into consideration a trial court's discretion to weigh relevant statutory factors. The task of an appellate court is to examine the available data, not to determine if the trial court has imposed a sentence that is in lockstep with others, but to determine whether the sentence is so unusual as to be outside the mainstream of local judicial practice. Although *6 offenses may be similar, distinguishing factors may justify dissimilar sentences.
State v. Battle, Franklin App. No. 06AP-863,
{¶ 12} Moreover, not only does the trial court's sentencing entry indicate that R.C.
* * * What bothers me the most about you being 19 is not so much in terms of what type of sentence to impose, but your history.
At the age of 19 you've done quite a bit. You've done quite a bit of damage throughout the community at a very young age.
(Tr. at 8.) *7
{¶ 13} Lastly, we note that an individual has no substantive right to a particular sentence within the range authorized by statute. State v.Templeton, Richland App. No. 2006-CA-33,
{¶ 14} Upon review of the record, we do not find that appellant has demonstrated by clear and convincing evidence that the imposed sentence is not supported by the record, or otherwise contrary to law. Accordingly, we overrule appellant's two assignments of error. *8
{¶ 15} For the foregoing reasons, appellant's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
KLATT and FRENCH, JJ., concur.