STATE OF OHIO, Plaintiff-Appellee, v. MATTHEW D. WISEMAN, Defendant-Appellant.
Case No. 11CA9
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
RELEASED 12/01/11
[Cite as State v. Wiseman, 2011-Ohio-6253.]
Harsha, P.J.
DECISION AND JUDGMENT ENTRY
John A. Bay, Bay Law Office, L.L.C., Columbus, Ohio, for appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
Harsha, P.J.
{¶1} Matthew Wiseman appeals his felony sentence claiming that the trial court erred by imposing an aggregate 16 year sentence because it failed to consider the sentencing directives set forth in
I. FACTS
{¶3} At the sentencing hearing, the trial court rejected a jointly recommended ten year sentence and sentenced Wiseman to an aggregate 16 year prison term. Specifically, it sentenced him to 12 months imprisonment for each of his six fifth degree felony convictions, ten years imprisonment for his first degree felony conviction and 6 months imprisonment for his first degree misdemeanor conviction. The trial court ordered that these sentences run consecutively, except for the first degree misdemeanor conviction, which was to run concurrently. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶4} Wiseman presents one assignment of error for our review:
{¶5} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED MR. WISEMAN TO A CUMLATIVE PRISON TERM OF 16 YEARS.”
III. WISEMAN’S SENTENCE
A. Standard of Review
1. Clearly and Convincingly Contrary to Law
{¶7} In examining all applicable rules and statues, the trial court must consider
{¶8} Wiseman was convicted of four counts of breaking and entering in violation of
{¶9} Here, the trial court’s decision was not contrary to law. The sentencing entry confirms that the trial court considered the factors set forth in
2. Abuse of Discretion
{¶10} Next, we must consider whether the trial court abused its discretion by sentencing Wiseman to an aggregate 16 year prison term. An abuse of discretion is “more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” (Internal quotation marks omitted.) Kalish, supra, at ¶19.
{¶11}
{¶12}
{¶13} Wiseman argues that the trial court abused its discretion when it sentenced him to 16 years in prison because it ignored the sentencing directives set forth in
{¶14} However, “[t]rial courts have full discretion to impose a prison sentence within the statutory range * * *.” (Emphasis in original; internal quotation marks omitted.) Kalish, supra, at ¶11. Therefore, “[t]rial courts have the discretion to impose consecutive sentences without stating their reasons for doing so.” (Internal quotation marks omitted.) State v. Voycik, 4th Dist. Nos. 08CA33 & 08CA34, 2009-Ohio-3669, at ¶23.
{¶15} After reviewing the record, we are unable to conclude that the trial court abused its discretion by imposing an aggregate 16 year sentence upon Wiseman. The record indicates that the trial court considered the principles and purposes of sentencing contained in, inter alia,
{¶16} The trial court also considered the factors that weighed in favor of recidivism. First, Wiseman has an extensive juvenile and adult criminal record. Second, Wiseman demonstrated a pattern of drug or alcohol abuse related to this offense. Finally, the trial court found that he has failed to respond to sanctions in the past. There were no factors present that made Wiseman “less likely to recidivate.” The court made it clear that in imposing its sentence, it “has weighed the seriousness and recidivism factors and has considered the over-riding purposes of felony sentencing to protect the public from future crime by this offender and others, and the purpose to punish this offender, and has considered the need for incapacitating this offender and deterring the offender and others from future crime, and for rehabilitating the offender.” The record indicates that the trial court properly considered the sentencing directives set forth in
{¶17} Although Wiseman stresses the fact that the state agreed to a lesser sentence, a deviation from a jointly recommended sentence does not automatically constitute an abuse of discretion. It is undisputed that the trial court is not bound by the state’s sentencing recommendation. State v. Keyes, 4th Dist. No. 05CA16, 2006-Ohio-5032, at ¶10. “No abuse of discretion is present when the trial court forewarns a defendant that it will not consider itself bound by a sentencing agreement and defendant fails to change his plea.” (Internal quotation marks omitted.) Id. at ¶8.
{¶19} In sum, we find nothing in the court’s sentence that shocks our judicial conscience, nor do we conclude the sentence is grossly disproportionate to the crimes and the defendant’s criminal history. See State v. Ross, Lawrence App. No. 10CA31, 2011-Ohio-1136, at ¶8. Accordingly, we overrule Wiseman’s assignment of error and affirm the judgment of the Washington County Court of Common Pleas.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
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 Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: William H. Harsha, Presiding Judge
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.