STATE OF OHIO v. DUANE WHITT
Appellate Case No. 2014-CA-125
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
March 4, 2016
2016-Ohio-843
Trial Court Case No. 14-CR-117; (Criminal Appeal from Common Pleas Court)
DANIEL T. WHITE, Atty. Reg. No. 0091072, Cordell & Cordell, 10 West Broad Street, Suite 1550, Columbus, Ohio 43215 Attorney for Defendant-Appellant
OPINION
Rendered on the 4th day of March, 2016.
HALL, J.
{¶ 2} In his sole assignment of error, Whitt contends “the record does not clearly and convincingly support” the 18 month-prison sentence he received.
{¶ 3} The charge against Whitt stemmed from him throwing a telephone at his 71-year-old mother and striking her in the shoulder. The offense was a fourth-degree felony because Whitt had a prior domestic-violence conviction. In exchange for his guilty plea, the State agreed to remain silent at sentencing. The matter came before the trial court for disposition on July 15, 2014, but Whitt failed to appear. He subsequently was arrested on a capias, and he came before the trial court for sentencing on October 24, 2014. As relevant here, the trial court imposed the statutory maximum 18-month prison sentence mentioned above.1
{¶ 4} Whitt‘s assignment of error on appeal states: “The trial court erred in imposing the maximum prison term, as the record does not clearly and convincingly support Mr. Whitt‘s sentence.” In support of his argument, Whitt engages in his own analysis of the statutory “seriousness” and “recidivism” factors that guide a trial court‘s sentencing decision. (Appellant‘s brief at 8-9).
{¶ 5} With regard to seriousness, Whitt notes that his offense resulted from an
{¶ 6} Upon review, we find Whitt‘s assignment of error to be unpersuasive. At the outset, we note that he has misstated the standard of review under
{¶ 7} Here we do not find that the record clearly and convincingly fails to support Whitt‘s 18-month prison sentence. At the sentencing hearing, the trial court explicitly indicated its consideration of the statutory seriousness and recidivism factors and addressed them as follows:
In reviewing the factors under [R.C.] 2929.12, this is a felony of the fourth degree. It is an offense of violence. As to factors indicating the seriousness of the offense, the Court finds, the Defendant‘s relationship with the victim facilitated this offense. The victim was the Defendant‘s mother, who was, at the time of the offense, 71 years-old.
Based on the report from the Police Department, and set forth facts represented by the victim, this argument was over a couple cans of tomato soup, and that the victim indicated to the officers, the Defendant couldn‘t believe that she gave them to his brother, across town.
There is no serious physical harm, but there was physical harm caused by the victim being struck by a wireless phone, or a cordless phone
that was thrown at her by the Defendant. The Defendant, in his presentence statement indicates, the argument was over his mother claiming he was making long distance calls on her phone, and he threw the phone, breaking the phone. He denies saying that.
I don‘t find any genuine remorse in the Defendant‘s statement. The officers, actually, observed the bruising or the redness on the victim‘s shoulder.
As to recidivism factors, the Defendant was on community control at the time of the offense. He was placed in that program in case 12-CR-0638, as a result of a motion for judicial release being granted.
The Defendant has a history of criminal convictions, including prior convictions for offenses of violence. In fact, the offense to which he was on community control was for assaulting a police officer.
He has not responded favorably to sanctions previously imposed for the criminal convictions. The most glaring example of that is, in fact, his violation in the community control in the 12-CR-0638 case. He does not have a prior delinquency record. He has no military record to consider. He did score moderate on the Ohio Risk Assessment Survey.
(Sentencing Tr. at 8-9).
{¶ 8} In evaluating the trial court‘s sentencing decision, we first note that the Revised Code did not obligate it to make any particular “findings” before imposing a statutory maximum prison sentence. State v. Graham, 2d Dist. Montgomery Nos. 26205, 26206, 2015-Ohio-896, ¶¶ 17-18. The trial court merely was required to consider the principles and purposes of sentencing as well as the seriousness and recidivism factors. Here the trial court indicated that it had done so. (Doc. # 19 at 1). In any event, as quoted above, the trial court did provide an explanation for the sanction it imposed. That explanation, and the record itself, both support Whitt‘s 18-month prison sentence. The trial court correctly noted that he had prior convictions for, among other things, domestic violence and assault on a police officer. He previously had served prison time and was under supervision when he committed the present offense. With regard to Whitt‘s abuse of alcohol, he and his attorney acknowledged that he previously had completed an alcohol-abuse program, which apparently failed to work as intended. (Sentencing Tr. at 7-8). Although Whitt expressed remorse at sentencing, the trial court had discretion to find no “genuine remorse.” (Id. at 9). In short, the present case is not one where the prison sentence imposed is clearly and convincingly unsupported by the record.
{¶ 9} Whitt‘s assignment of error is overruled, and the judgment of the Clark County Common Pleas Court is affirmed.
WELBAUM, J., concurs.
FROELICH, J., concurring in judgment only:
{¶ 10} Consistent with my concurring opinion in Rodeffer, I disagree that this case is controlled by
{¶ 11}
(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 using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. 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.
{¶ 12} In turn,
{¶ 13} Lambert, supra, involved the appeal of an agreed consecutive sentence; this issue will, with hope, be clarified by the Ohio Supreme Court in State v. Marcum, 141 Ohio St.3d 1453, 2015-Ohio-239, 23 N.E.2d 1195 (argued October 27, 2015).
{¶ 14} As applicable to this case, those factors include:
(1)The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
(3) . . .
(4) . . .
(5) . . .
(6) The offender‘s relationship with the victim facilitated the offense.
(7) . . .
(8) . . .
(9) If the offense is a violation of section 2919.25 or a violation of section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children.
{¶ 15} None of these “more serious” factors was present. The victim did not suffer serious harm and the offense was not committed in the vicinity of children.
{¶ 16} In imposing sentence, the trial court stated, referring to
{¶ 17} Nonetheless, “other relevant factors” such as that the Appellant was on judicial release, that the judge found no genuine remorse, that the Appellant has a previous violent offense, and that previous treatment of his alcohol abuse was unsuccessful, lead me to conclude that the sentence was not an abuse of discretion and to concur in judgment.
Copies mailed to:
Ryan A. Saunders
Daniel T. White
Hon. Richard J. O‘Neill