State v. WeberState v. Weber
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 24, 2010
APPEARANCES:
For Plaintiff-Appellee
RAMONA FRANCESCONI ROGERS ASHLAND COUNTY PROSECUTOR PAUL T. LANGE ASSISTANT PROSECUTING ATTORNEY 110 Cottage Street, Third Floor Ashland, OH 44805
For Defendant-Appellant
DOUGLAS A. MILHOAN P.O. Box 347 Middlebranch, OH 44652
Gwin, P.J.
{¶1} Appellant Harold G. Weber appeals the sentence rendered by the Ashland County Court of Common Pleas on the basis that it imposes an unnecessary burden on the state‘s resources. The following facts give rise to this appeal.
{¶2} On October 30, 2009, appellant pled guilty to a Bill of Information charging him with one count of Rape, a felony of the first degree involving his five-year-old grandson.
{¶3} On December 18, 2009, the Court held a sentencing hearing. Counsel for appellant addressed appellant‘s service to his country in Korea, his age (seventy years old), his lack of a criminal record, and his genuine remorse for his actions and the harm caused to the victim. Appellant then addressed the Court, saying that he was sorry for his actions and accepted responsibility for them, stating, “I‘m guilty as charged.” The State recommended appellant be imprisoned as opposed to a community control sanction. The Court then reviewed the seriousness of the offense and likelihood of recidivism and found the maximum sentence was appropriate and sentenced appellant to ten years imprisonment.
{¶4} Appellant has timely appealed raising the following assignment of error:
{¶5} “I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.”
I.
{¶6} Appellant maintains in his sole assignment of error the imposition of a ten-year prison sentence results in an unnecessary burden on state resources. We disagree.
{¶8} In a plurality opinion, the Supreme Court of Ohio established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The first step is to “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.” Kalish at ¶ 4. If this first step “is satisfied,” the second step requires the trial court‘s decision be “reviewed under an abuse-of-discretion standard.” Id.
{¶9} As a plurality opinion, Kalish is of limited precedential value. See Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case as “of questionable precedential value inasmuch as it was a plurality opinion which failed to receive the requisite support of four justices of this court in order to constitute
{¶10} In the first step of our analysis, we review whether the sentence is contrary to law. In the case at bar, appellant was convicted of rape a felony of the first degree. For a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, or ten years.
{¶11} Upon review, we find that the trial court‘s sentencing on the charges complies with applicable rules and sentencing statutes. The sentences were within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in Sections
{¶12} Having determined that the sentence is not contrary to law we must now review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4;
{¶13} Under Ohio law, judicial fact-finding is no longer required before a court imposes consecutive or maximum prison terms. See State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856; State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855. Instead, the trial court is vested with discretion to impose a prison term within the statutory range. See Mathis, at ¶ 36. In exercising its discretion, the trial court must “carefully consider the statutes that apply to every felony case [including]
{¶14} There is no requirement in
{¶15} Where the record lacks sufficient data to justify the sentence, the court may well abuse its discretion by imposing that sentence without a suitable explanation. Where the record adequately justifies the sentence imposed, the court need not recite its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545. In other words, an appellate court may review the record to determine whether the trial court failed to consider the appropriate sentencing factors. State v. Firouzmandi, 5th Dist No. 2006-CA41, 2006-Ohio-5823 at ¶ 52.
{¶16} Accordingly, appellate courts can find an “abuse of discretion” where the record establishes that a trial judge refused or failed to consider statutory sentencing factors. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342. An “abuse of discretion” has also been found where a sentence is greatly excessive under traditional concepts of justice or is manifestly disproportionate to the crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. The imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject to review. Woosley, supra at 143-145. Where the severity of the sentence shocks the judicial conscience or greatly exceeds penalties usually exacted for similar offenses or defendants, and the record fails to justify and the trial court fails to explain the imposition of the sentence, the appellate court‘s can reverse the sentence. Woosley, supra at 147. This by no means is an exhaustive or exclusive list of the circumstances under which an appellate court may find that the trial court abused its discretion in the imposition of sentence in a particular case. State v. Firouzmandi, supra.
{¶17} There is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of appellant‘s case to suggest that her sentence was based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment.
{¶18} In the case at bar, the trial court conducted a sentencing hearing in open court. Despite appellant‘s lack of a significant criminal history, this was an extremely serious offense. The trial court noted that this offense was more serious because of the fact that appellant is the victim‘s own grandfather; appellant was suppose to be babysitting the victim at the time of the offense; further, the victim was only five years old at the time of the offense; and the victim has suffered psychological harm as a result of this offense. (T. at 8-9).
{¶19} Further, appellant has not shown genuine remorse. Appellant did not come forward and report this offense to law enforcement. It was reported by the victim‘s Mother. Further, when law enforcement interviewed appellant, he stated that he was putting his finger up his five-year-old grandson‘s anus because his grandson had talked him into it. Even after he pled guilty, appellant told the Adult Parole Authority that he only did this because the victim had talked him into it. During the sentencing hearing, the trial court took particular note of the fact that appellant continued to allege
{¶20} It appears to this Court that the trial court‘s statements at the sentencing hearing were guided by the overriding purposes of felony sentencing to protect the public from future crime by the offender and others and to punish the offender.
{¶21} Based on the record, the transcript of the sentencing hearing and the subsequent judgment entry, this Court cannot find that the trial court acted unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant‘s rights to due process under the Ohio and United States Constitutions in its sentencing appellant. Further, the sentence in this case is not so grossly disproportionate to the offense as to shock the sense of justice in the community.
{¶22} In his assignment of error, appellant contends that his sentence violates the general assembly‘s intent to minimize the unnecessary burden on state and local government resources. Specifically, appellant argues that because of the high cost of housing prison inmates, the cost of housing him in prison beyond the minimum sentence creates an unnecessary burden on state and local resources.
{¶23} In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second District considered this same issue. In rejecting the argument, the court stated “Ober is correct that the ‘sentence shall not impose an unnecessary burden on state or local government resources.’
{¶24} The Ober court concluded, “[a]lthough resource burdens may be a relevant sentencing criterion,
{¶25} Several other appellate courts, including our own, considering these issues have reached the same conclusion. See, e.g., State v. Hyland, Butler App. No. CA2005-05-103, 2006-Ohio-339 at ¶ 32; State v. Brooks (Aug. 18, 1998), Franklin App. No. 97APA-11-1543; State v. Stewart (Mar. 4, 1999), Cuyahoga App. No. 74691; State v. Fox (Mar. 6, 2001), Wyandot App. No. 16-2000-17; State v. Miller, Ashland App. No. 04-COA-003, 2004-Ohio-4636. We agree with the reasoning of the Ober court and other courts considering this issue and find no merit to appellant‘s argument.
{¶27} The judgment of the Ashland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
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HON. W. SCOTT GWIN
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HON. WILLIAM B. HOFFMAN
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HON. SHEILA G. FARMER
WSG:clw 0813
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Ashland County Court of Common Pleas is affirmed. Costs to appellant.
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HON. W. SCOTT GWIN
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HON. WILLIAM B. HOFFMAN
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HON. SHEILA G. FARMER