State v. Arkenburg

2014 Ohio 1361

• Court: Ohio Court of Appeals
• Decided: March 31, 2014
• Docket: 2013-L-087
• Status: Published

Opinion

[Cite as State v. Arkenburg, 2014-Ohio-1361.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2013-L-087 - vs - :

RYAN L. ARKENBURG, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR 000124.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Jay F. Crook, Shryock, Crook & Associates, LLP, 30601 Euclid Avenue, Wickliffe, OH 44092(For Defendant-Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} Ryan Arkenburg appeals from the August 27, 2013 judgment entry of the

Lake County Court of Common Pleas, sentencing him to prison for one count of burglary.

Mr. Arkenburg asserts the trial court erred in imposing a maximum prison term as its

findings were not supported by the record, and that it failed to give substantial

consideration to the statutory sentencing factors. Finding no error, we affirm. {¶2} April 24, 2013, the Lake County Grand Jury returned a two count indictment

against Mr. Arkenburg: Count 1, aggravated burglary, a felony of the first degree in

violation of R.C. 2911.11(A)(2); and Count 2, burglary, a felony of the second degree in

violation of R.C. 2911.12(A)(2). The charges arose from an incident on January 29, 2013

when Mr. Arkenburg was arrested for illegally entering the residence of the victim in this

case. Mr. Arkenburg’s codefendant had a past relationship with the victim. After plea

negotiations, Mr. Arkenburg pleaded guilty to one count of burglary, a felony of the second

degree.

{¶3} During sentencing the trial court made three findings relating to this case: (1)

that the victim suffered severe psychological harm; (2) that the offender acted as part of an

organized criminal activity; and (3) that Mr. Arkenburg’s remorse mitigated against

imposition of a post release control sentence of an additional three years. Based upon

these findings the trial court sentenced Mr. Arkenburg to eight years, the maximum

sentence under law.

{¶4} This appeal timely ensued, Mr. Arkenburg assigning a single error: “The trial

court erred by sentencing the defendant-appellant to eight years in prison.”

{¶5} Mr. Arkenburg makes three arguments in support: (1) the sentence imposes

an unnecessary burden on state or local government resources in violation of R.C.

2929.11(A); (2) a maximum sentence exceeds the minimum sanctions necessary to

protect the public and punish the offender; and (3) the trial court failed to give appropriate

consideration and weight to Mr. Arkenburg’s untreated drug abuse issues and his genuine

remorse under R.C. 2929.12. Additionally, Mr. Arkenburg argues that his actions do not

qualify as being part of an “organized criminal activity.”

2 {¶6} “Subsequent to State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856, 845

N.E.2d 470, appellate courts have applied a two step approach in reviewing felony

sentences. First, courts ‘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 in

imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.’

State v. Kalish, 120 Ohio St.3d 23, 2008 Ohio 4912, ¶26, * * *.

{¶7} “A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing, which 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.’ R.C. 2929.11(A). A court imposing a sentence

for a felony ‘has discretion to determine the most effective way to comply with the

purposes and principles of sentencing set forth in section 2929.11 of the Revised Code.’

R.C. 2929.12(A). ‘In the exercise of this discretion, a court “shall consider” the non-

exclusive list of seriousness and recidivism factors set forth in R.C. 2929.12(B), (C), (D),

and (E).’ (Citation omitted.) State v. Putnam, 11th Dist. No. 2012-L-026, 2012 Ohio 4891,

¶8; R.C. 2929.12(A).

{¶8} “There is no ‘mandate’ for the sentencing court to engage in any factual

finding under these statutes. Rather, ‘(t)he court is merely to “consider” the statutory

factors.’ Foster at ¶42. This standard continues to be applicable after the recent

enactment of H.B. 86, which did not amend R.C. 2929.12. Putnam at ¶9, citing State v.

Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012 Ohio 3349, ¶24 (R.C. 2929.12 is

3 ‘not (a) fact-finding statute() like R.C. 2929.14’).” (Parallel citation omitted.) State v.

Beville, 11th Dist. Ashtabula No. 2012-A-0057, 2013-Ohio-2139, ¶9-11.

{¶9} In this case, the trial court clearly stated its findings regarding the

seriousness and recidivism factors. It found the victim suffered serious psychological

harm, which increased the seriousness of the crime. R.C. 2929.12(B)(2) It found Mr.

Arkenburg acted as part of an organized criminal activity, another factor enhancing the

crime’s seriousness. R.C. 2929.12(B)(7). It found Mr. Arkenburg had a long history of

juvenile delinquency adjudications and criminal convictions, factors showing likelihood of

recidivism. R.C. 2929.12(D)(2); see also R.C. 2929.12(D)(3). It found he committed this

crime while under community control sanctions, less than a year after his release from

prison, another recidivism factor. R.C. 2929.12(D)(1). It found Mr. Arkenburg had not

sought treatment for his drug and alcohol addictions, yet another recidivism factor. R.C.

2929.12(D)(4).

{¶10} Mr. Arkenburg argues the trial court’s sentence imposes an unnecessary

burden on state or local resources. R.C. 2929.11(A). This court has noted this provision

“‘embodies the principle referred to as the “resources conservation” principle found in

former R.C. 2929.13.’” State v. Banks, 11th Dist. Lake No. 2012-L-110, 2013-Ohio-3865,

¶67, quoting State v. Anderson, 11th Dist. Geauga No. 2011-G-3044, 2012-Ohio-4203,

¶35. However, courts have determined that “while resource and burdens to the

government may be a relevant sentencing criterion, the statute ‘does not require trial

courts to elevate resource conservation above the seriousness and recidivism factors.’”

(Citation omitted.) Anderson at ¶36.

4 {¶11} Mr. Arkenburg also believes his sentence exceeds the minimum sanction

necessary to protect the public and punish the offender. Given the seriousness of the

offense and the recidivism factors outlined by the trial court, we disagree.

{¶12} Mr. Arkenburg further asserts the trial court failed to give appropriate

consideration to his drug abuse issues and his sincere remorse. Again, the trial court

noted Mr. Arkenburg had not sought treatment for his alcohol and drug abuse issues.

However, the trial court did note Mr. Arkenburg’s remorse, and responded by not imposing

a sanction for Arkenburg’s violation of post release control – a term of an additional three

years.

{¶13} Finally, Mr. Arkenburg questions the appropriateness of the trial court’s

determination that he engaged in “organized criminal activity.” However, even if we

assume this finding was misplaced, the trial court nonetheless cited other seriousness and

recidivism factors fully justifying Mr. Arkenburg’s sentence, including his lengthy criminal

record, the failure of prior sanctions to rehabilitate him, and the fact he had been released

from prison less than a year prior to this offense and was still under community control

sanctions.

{¶14} We find no error in the trial court’s consideration of the seriousness and

recidivism factors. The trial court did not err in sentencing Mr. Arkenburg to more than a

minimum, and maximum, term of imprisonment. The sole assignment of error lacks merit.

{¶15} The judgment of the Lake County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.