STATE OF OHIO v. DIANA WILSON
No. 95553
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 14, 2011
2011-Ohio-3463
KENNETH A. ROCCO, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-534919
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 14, 2011
ATTORNEY FOR APPELLANT
Michael K. Webster
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: John P. Colan
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} After entering guilty pleas to charges of attempted arson, vandalism, and child endangering, defendant-appellant Diana Wilson appeals from the four-year prison sentence imposed by the trial court.
{¶ 2} Wilson presents one assignment of error. She argues the trial court failed to make the necessary “findings” prior to imposing more than the
{¶ 3} Wilson‘s assignment of error, consequently, is overruled, and her sentence is affirmed.
{¶ 4} Wilson originally was indicted in this case on five counts, charged with aggravated arson, vandalism, and three counts of child endangering. She entered a not guilty plea at her arraignment.
{¶ 5} Within two months of Wilson‘s indictment, the court psychiatric clinic determined she was not competent to aid in her own defense. The trial court therefore referred her to a facility for that purpose. A month later, Wilson returned to the court, whereupon the clinic also determined she was sane at the time of the incident that led to her indictment.
{¶ 6} When the state notified the trial court that Wilson had agreed to a plea bargain, the trial court conducted a hearing. The prosecutor outlined the arrangement, i.e., in exchange for Wilson‘s guilty pleas to Count 1, amended to constitute a third-degree felony,1 Count 2, and Count 3, amended
{¶ 7} The trial court conducted a colloquy prior to accepting Wilson‘s pleas; the court, too, notified Wilson that Count 1 “carr[ied] anywhere from 1 to 5 years in prison.” The court found Wilson guilty. Rather than ordering the preparation of a presentence report, the trial court indicated it would rely on the psychiatric reports.
{¶ 8} When the case was called for sentencing, the trial court indicated it had requested the prosecutor to have the detective who investigated Wilson‘s case present because the court “didn‘t have some of the facts” at the plea hearing. The record reflects the detective‘s investigation consisted only of “speaking with several family members,” consulting the fire department‘s report, and obtaining information from the homeowner‘s insurance company.
{¶ 9} The detective described the damage done to the home, indicated Wilson had set fires in three separate locations, and the house suffered smoke and water damage as a consequence. The detective set the restitution amount at $12,500.
{¶ 10} Without a presentence report to review, the trial court accepted defense counsel‘s representation that Wilson had been convicted previously of
{¶ 11} After listening to the prosecutor, defense counsel, and Wilson herself, the trial court pronounced sentence. The court began by stating:
{¶ 12} “The — Ms. Wilson, the purpose of sentencing is punishment. That‘s the foremost purpose under the statute, under the law.2 * * * This case calls for punishment.
{¶ 13} “Now, I‘m going to take into consideration all the factors. I believe your remorse is sincere. * * * I‘m going to accept on face value that you were the victim of sexual abuse and I‘m going to accept that you do have love and care for your children at this point, but you, on November 21 [2009], committed a very violent, dangerous act for [sic] which society must be protected.
{¶ 14} “You have to pay this punishment. * * * [T]his imprisonment will put you in a position where you cannot harm other people. * * *”
{¶ 16} “There‘s a whole series of calamities that could occur in a fire * * *.”
{¶ 17} The trial court ultimately imposed concurrent terms of four years on Count 1, one year on Count 2, and six months on Count 3.
{¶ 18} Wilson appeals from her sentence, presenting the following assignment of error.
{¶ 19} “I. The trial court erred in imposing consecutive terms of incarceration without providing findings and reasons in support of those findings.”
{¶ 20} Wilson argues that, because she had not previously served a prison term,
{¶ 21} This court reviews felony sentences to determine whether there is statutory compliance with sentencing and whether the court abused its discretion by imposing sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶4. Wilson‘s four-year sentence was
{¶ 22} Wilson was not entitled to a presumption of the shortest available prison term as a first offender. In Foster, the supreme court severed former
{¶ 23} Although Wilson argues that the court abused its discretion by imposing a four-year sentence because she was a first-time offender, she showed remorse for her behavior, and her medications had stabilized her mental disorder, the record reflects the trial court took these facts into consideration. Nevertheless, the court determined that a four-year prison term was appropriate.
{¶ 24} Under these circumstances, this court cannot find the trial court abused its discretion. State v. Waugh, Cuyahoga App. No. 92896, 2010-Ohio-1976. The trial court indicated its belief that the potential harm of Wilson‘s crimes outweighed any factors that mitigated punishment. Bonnell.
{¶ 26} Wilson‘s sentence is affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR