State v. VoycikState v. Voycik
Teresa D. Schnittke, Lowell, Ohio, for Appellant.
James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Assistant Washington County Prosecutor, Marietta, Ohio, for Appellee.
Kline P.J.:
{¶1} Jeffrey R. Voycik (hereinafter “Voycik“) appeals his maximum, consecutive prison sentences for Possession of Drugs and Theft from the Washington County Common Pleas Court. On appeal, Voycik contends that the trial court erred when it (1) imposed the maximum available prison sentences and (2) ordered Voycik to serve those sentences consecutively. We disagree. First, we find that Voycik‘s sentences for Possession of Drugs and Theft are not clearly and convincingly contrary to law. And second, we find that the trial court did not abuse its discretion in imposing the maximum available sentences or by ordering Voycik to serve those sentences consecutively. Accordingly, we affirm Voycik‘s sentences and the judgment of the trial court.
I.
{¶3} In March or April 2008, Voycik engaged in a series of thefts unrelated to the February 9, 2008 incident. And on June 26, 2008, a Washington County Grand Jury indicted Voycik for Theft, a fourth degree felony, under
{¶4} Under a plea agreement, Voycik pled guilty to both Possession of Drugs charges in the May 29, 2008 indictment. In return, the state agreed to drop the Tampering with Evidence charge. Voycik also pled guilty to an amended charge of fifth degree felony theft.
{¶5} A pre-sentencing report documented Voycik‘s extensive criminal history, including a prior prison term. The prosecutors recommended two concurrent prison terms of anywhere from nine-to-twelve months. Despite that recommendation, the trial court imposed the following sentence: (1) twelve months in prison for fifth degree felony Possession of Drugs; (2) sixty days in jail for third degree misdemeanor Possession of Drugs; and (3) twelve months in prison for fifth degree felony Theft. The trial court ordered Voycik to serve the two sentences for Possession of Drugs concurrently to each other, but
{¶6} Voycik appeals, asserting the following two assignments of error: I. “THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE MAXIMUM AVAILABLE PRISON TERMS IN THIS CASE.” And, II. “THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE PRISON TERMS IN THIS CASE.”
II.
{¶7} In his first assignment of error, Voycik contends that the trial court erred in sentencing him to the maximum available prison terms for Possession of Drugs and Theft.
{¶8} “Appellate courts ‘apply a two-step approach [to review a sentence]. First, [we] must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse-of-discretion standard.‘” State v. Smith, Pickaway App. No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶4 (alterations in original).
{¶9} Here, we find that Voycik‘s two twelve-month sentences are not clearly and convincingly contrary to law. In analyzing whether Voycik‘s sentences are contrary to law, “[t]he only specific guideline is that the sentence[s] must be within the statutory range[.]” State v. Welch, Washington App. No. 08CA29, 2009-Ohio-2655, at ¶7, quoting State v. Ross, 4th Dist. No. 08CA872, 2009-Ohio-877, at ¶10.
{¶10} Voycik pled guilty to two fifth-degree felonies. First, Voycik pled guilty to Possession of Drugs pursuant to
{¶11} Here, the trial court sentenced Voycik to twelve months in prison for Possession of Drugs and twelve months in prison for Theft.
{¶12} Additionally, courts must consider the general guidance factors set forth in
{¶13} Next, after applying the first prong of the above two-step approach, we address the second question of whether the sentences imposed represent an abuse of discretion. An abuse of discretion involves more than an error of judgment or law; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. “In the sentencing context, we review the trial court‘s selection of the sentence within the permissible statutory range.” Smith at ¶17, quoting Kalish at ¶17.
{¶15} Here, we find that the trial court did not abuse its discretion when it imposed the maximum sentences for Voycik‘s two felony convictions.
{¶16} In sentencing Voycik, the trial court took particular note of his extensive criminal history and numerous prior convictions. Indeed, Voycik had seventeen (17) prior adult criminal convictions from 2001 through 2008. In 2004, Voycik was placed on community control supervision after pleading guilty to a felony drug offense. But after committing another felony drug offense in 2005, Voycik
{¶17} Therefore, under the second step of our analysis, we find that the trial court did not abuse its discretion when it sentenced Voycik to maximum sentences for his two felony convictions. Accordingly, we overrule Voycik‘s first assignment of error.
III.
{¶18} In his second assignment of error, Voycik contends that the trial court erred in sentencing Voycik to consecutive prison terms for Possession of Drugs and Theft.
{¶19} Generally, we have analyzed a trial court‘s decision to impose consecutive prison sentences in conjunction with that court‘s decision to impose non-minimum or maximum prison terms. See, e.g., State v. Moman, Adams App. No. 08CA876, 2009-Ohio-2510, at ¶5-12; State v. O‘Daniel, Highland App. No. 08CA13, 2009-Ohio-2241, at ¶10-17; Smith at ¶8-21. However, Voycik has raised the issue of consecutive sentences as a separate assignment of error.
{¶20} We review the trial court‘s decision to impose consecutive sentences under the same two-step approach that we used to review the length of Voycik‘s prison sentences. See Moman at ¶5-12; O‘Daniel at ¶10-17; Smith at ¶8-21. Here, we have already determined that the trial court properly considered the relevant sentencing statutes and that Voycik‘s two prison sentences are within the statutory range. Therefore, we similarly find that Voycik‘s two-year aggregate sentence is also within the statutory range and not clearly and convincingly contrary to law. Next, we must determine whether the trial court abused its discretion by imposing consecutive sentences. “To establish an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will, but perversity of will; not exercise of judgment, but defiance of judgment; and not the exercise of reason, but, instead, passion or bias.” O‘Daniel at ¶14, citing Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, at ¶13.
{¶21} Voycik contends that the consecutive sentences are disproportionate to the seriousness of his conduct or the danger that he poses to the public. Regarding the Possession of Drugs conviction, Voycik argues that consecutive sentences are not appropriate because he merely possessed a single tablet of methylenedioxymethamphetamine, commonly known as “ecstasy.” Voycik further argues that the circumstances of the Theft conviction do not demonstrate
{¶22} However, we note that Lyons was decided before the Supreme Court of Ohio‘s decision in Foster. See, generally, State v. Steward, Highland App. No. 08CA7, 2008-Ohio-7010, at ¶9 (discussing the impact of Foster). The Lyons court based its decision on
{¶23} Here, we find that the trial court did not abuse its discretion by imposing consecutive sentences. Trial courts have the “discretion to impose consecutive sentences without stating their reasons for doing so.” State v. Scott, Pickaway App. No. 07CA5, 2007-Ohio-3543, at ¶9, citing Foster, at paragraph
{¶24} Accordingly, we overrule Voycik‘s second assignment of error. Having overruled both of Voycik‘s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:
Roger L. Kline, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.