523 N.E.2d 326 | Ohio Ct. App. | 1987
William Turner, the appellant, was sentenced to consecutive terms for a theft offense and a receiving stolen property offense under two case numbers, 193058 and 191784, respectively, in the court of common pleas. In this delayed appeal, Turner contends: (1) he was improperly sentenced on the theft offense in case No. 193058 to an indefinite term of imprisonment; and (2) the trial court failed to comply with the sentencing procedure outlined in R.C.
The record reflects that Turner and co-defendant Arthur Cox were jointly indicted in case No. 191784 for one count of receiving stolen property in violation of R.C.
That indictment also contained prior conviction specifications, but as the record in case No. 191784 has not been provided for our review, we are unable to determine the precise number and nature of these specifications. We note that the transcript of the sentencing hearing on the consolidated cases is ambiguous in this regard. Since Turner has failed to provide us with the record in case No. 191784, we need not consider his assignments of error as they relate to that case.
The same co-defendants were charged in case No. 193058 with one count of theft in violation of R.C.
Pursuant to a plea bargain arrangement, Turner elected to withdraw his not guilty pleas and enter a plea of guilty to the charges in case No. 191784 and to the theft charge with the prior theft offense specification in case No. 193058. In exchange, the receiving stolen property count in case No. 193058 was nolled.
The trial court accepted Turner's guilty pleas in both cases, and imposed an indefinite term of imprisonment of one to five years on the theft charge in case No. 193058, and an indefinite term of two to ten years in case No. 191784, with sentences in both cases to run consecutively.
In his first assignment of error Turner contends that the trial court erred in sentencing him on the theft offense, a fourth degree felony, to an indefinite rather than a definite term in case No. 193058. We agree.
Persons convicted of third and fourth degree felonies are subject to a definite sentence, R.C.
There is no evidence in the instant case that Turner caused physical harm or threatened physical harm with a deadly weapon to any person during the commission of the charged theft offense in case No. 193058. The indictment reflects that Turner was previously convicted in 1977 of the crime of petty theft, a non-violent offense.
Accordingly, Turner was entitled to the definite sentencing provision of R.C.
Turner's first assignment of error is well-taken.
In his second assignment of error, Turner argues that the trial court abused its discretion in imposing the maximum sentence without first considering the factors set forth in *40
R.C.
R.C.
"(A) The following do not control the court's sentencing decision, but shall be considered in favor of imposing a shorter term of imprisonment when determining the term of imprisonment for a felony of the third or fourth degree for which a definite term of imprisonment is imposed:
"(1) The offense was the result of circumstances unlikely to recur;
"(2) The victim of the offense induced or facilitated it;
"(3) There are substantial grounds tending to excuse or justify the offense, though not sufficient to establish a defense;
"(4) The offender acted under strong provocation;
"(5) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense;
"(6) The offender is likely to respond quickly to correctional or rehabilitative treatment."
As subsection (A) specifically states, these sentencing criteria must be considered by the court in determining whether to impose a shorter or longer definite sentence, but are non-binding. Further, the criteria do not limit the matters that may be considered in determining the length of a definite term of imprisonment to be imposed for a third or fourth degree felony. R.C.
We have found no reported Ohio cases or unreported cases from this jurisdiction relating to R.C.
The record reflects that the trial judge reviewed a presentence investigation report before imposing sentence. Therefore, we hold that he had sufficient facts before him to consider the statutory criteria, and it cannot be said that he acted arbitrarily. Turner's second assignment is not well-taken.
This cause is remanded for resentencing consistent with this opinion.
Judgment affirmed in part, reversed in part and cause remanded.
NAHRA, P.J., and MITROVICH, J., concur.
MITROVICH, J., of the Court of Common Pleas of Lake County, sitting by assignment in the Eighth Appellate District.