State v. Baskin

2016 Ohio 7346

• Court: Ohio Court of Appeals
• Decided: October 17, 2016
• Docket: 1-16-20 1-16-21
• Status: Published

Opinion

[Cite as State v. Baskin, 2016-Ohio-7346.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-16-20

v.

DEANDRE T. BASKIN, OPINION

DEFENDANT-APPELLANT.

PLAINTIFF-APPELLEE, CASE NO. 1-16-21

Appeals from Allen County Common Pleas Court Trial Court Nos. CR20160074 and CR20150467

Judgments Affirmed

Date of Decision: October 17, 2016

APPEARANCES:

Thomas J. Lucente, Jr. for Appellant

Jana E. Emerick for Appellee Case No. 1-16-20

SHAW, P.J.

{¶1} Defendant-Appellant, Deandre T. Baskin, appeals the judgment entries

of sentencing issued by the Allen County Court of Common Pleas journalizing the

imposition of two twelve-month prison terms upon Baskin for two separate

convictions for violating a protection order, in violation of R.C. 2919.27(A)(1),

(B)(3), both felonies of the fifth degree. The trial court ordered the prison terms to

run consecutive for a total stated term of twenty-four months. On appeal, Baskin

claims the trial court failed to properly consider the relevant statutory factors when

determining the appropriate term of prison to impose upon him.

Case Number CR20150467

{¶2} On January 14, 2016, the Allen County Grand Jury indicted Baskin on

one count of violating a protection order. The indictment stated that Baskin on

December 1, 2015, “did recklessly violate the terms of a protection order issued

pursuant to section 2919.26 or 3113.31.” The indictment further specified that

Baskin had previously been convicted of violating a protection order in May of

2014. The State filed a Bill of Particulars indicating that the protection order

implicated in this case was issued on November 20, 2015.

{¶3} Baskin was arraigned, pleaded not guilty to the charge and was

subsequently released on bond. As a condition of his bond, Baskin was ordered to

have no contact with the victim.

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{¶4} On February 29, 2016, pursuant to a negotiated plea agreement, Baskin

withdrew his previously tendered not guilty plea and entered a plea of guilty to the

charge listed in the indictment. Sentencing was continued pending the completion

of a pre-sentence investigation. Baskin’s bond was amended to his own

recognizance. The trial court specifically ordered and emphatically impressed upon

Baskin at the change of plea hearing that he was “not to have any contact directly

or indirectly with” the victim and further clarified that “as it relates to this bond, you

are to stay completely away from her and make no contact.” (Doc. No. 61 at 20,

21).

{¶5} On March 4, 2016, the State filed a motion to revoke Baskin’s bond on

the basis that law enforcement was called to victim’s home, with the victim present,

and Baskin was found hiding in the basement. Baskin had been charged with

another violation of the protection order as a result of the incident. The trial court

granted the State’s motion and revoked Baskin’s bond and a bench warrant was

issued.

Case Number CR20160074

{¶6} Baskin filed a waiver of indictment in the second case involving a

violation of the protection order pursuant to R.C. 2919.27(A)(1), (B)(3). The case

proceeded upon a Bill of Information filed by the prosecutor.

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{¶7} On March 28, 2016, Baskin entered a plea of guilty to the charge and

sentencing was continued pending the receipt of a pre-sentence investigation.

{¶8} On April 20, 2016, Baskin appeared for sentencing in both case

numbers CR20150467 and CR20160074. The trial court sentenced Baskin to the

maximum prison term of twelve months on the charge in each case, with the prison

term in case number CR20150467 to run consecutive to the prison term imposed in

case number CR20160074, for a total stated term of twenty-four months.

{¶9} Baskin now appeals, asserting the following assignment of error.1

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO PROPERLY FOLLOW THE SENTENCING CRITERIA SET FORTH IN OHIO REVISED CODE, SECTION 2929.14 RESULTING IN THE DEFENDANT- APPELLANT RECEIVING A SENTENCE THAT IS CONTRARY TO LAW.

{¶10} In his sole assignment of error, Baskin argues that the record does not

support the trial court’s imposition of maximum, consecutive sentences. Pursuant

to the Supreme Court of Ohio’s recent holding in State v. Marcum,—Ohio St.3d--,

2016-Ohio-1002, ¶ 7, this court will review a felony sentence using the standard set

forth in R.C. 2953.08. Section 2953.08 of the Revised Code governs appeals based

on felony sentencing guidelines. Subsection (G)(2) sets forth this court’s standard

of review as follows:

1 The cases were consolidated for purposes of briefing and argument on appeal.

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(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law.

{¶11} The Supreme Court in Marcum also declared that “it is fully consistent

for appellate courts to review those sentences that are imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is

equally deferential to the sentencing court. That is, an appellate court may vacate

or modify any sentence that is not clearly and convincingly contrary to law only if

the appellate court finds by clear and convincing evidence that the record does not

support the sentence.” Marcum at ¶ 23.

{¶12} Clear and convincing evidence is that measure or degree of proof

which is more than a mere “preponderance of the evidence,” but not to the extent of

such certainty as is required “beyond a reasonable doubt” in criminal cases, and

which will produce in the mind of the trier of facts a firm belief or conviction as to

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the facts sought to be established. Cross v. Ledford, 161 Ohio St. 469, (1954),

paragraph three of the syllabus.

{¶13} Revised Code Chapter 2929 governs sentencing. Revised Code

2929.11 provides, in pertinent part, that 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.” R.C. 2929.11(A). In advancing these purposes,

sentencing courts are instructed to “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.”

Id.

{¶14} Meanwhile, R.C. 2929.11(B) states that felony sentences must be

“commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim” and also be consistent with sentences imposed in

similar cases. In accordance with these principles, the trial court must consider the

factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s

conduct and the likelihood of the offender’s recidivism. R.C. 2929.12(A).

Regarding the imposition of the maximum sentences, there is no statutory

requirement for findings in order to impose such a sentence, and a trial court has the

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discretion to impose a prison sentence within the statutory range. “Trial courts have

full discretion to impose a prison sentence within the statutory range and are no

longer required to make findings or give their reasons for imposing maximum * * *

sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of

the syllabus.

{¶15} At the sentencing hearing, the trial court discussed several facts

contained in the record which supported the sentence imposed in this case. The pre-

sentence investigation report revealed that Baskin has an extensive history of

committing physical violence against women with whom he maintained close

relationships. Specifically, Baskin served ten years in prison for rape and was

released in 2009. Since that time, Baskin was involved in several situations

resulting in his convictions for domestic violence, assault, menacing, and violations

of protection orders involving different victims as well as a history of arrests and/or

convictions for other offenses which the trial court characterized as “endless.” (Doc.

Nos. 26, 50 at p. 23).

{¶16} The trial court also noted that Baskin had not responded well to

sanctions. Trial court stated that “[t]he PSI has got 1,2,3,4,5, 5¼ pages of a history

of nothing but terrible behavior while on supervision.” (Doc. Nos. 26, 50 at p. 23).

The trial court also highlighted the facts of the current cases under review and stated

“[f]rankly, when you were committing this offense, this 2nd felony were [sic] here

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on today three days within probably two days after you were in court pleading guilty

on one of them, it’s pretty obvious to me that you’re not gonna listen to a probation

officer when you don’t listen to the court.” (Id. at 23-24).

{¶17} On appeal, Baskin argues that the trial court’s sentence is unsupported

by the record because (1) the ORAS score of 17 assessed in these cases indicates

that he is a moderate risk for reoffending, (2) there is a presumption against prison

for fourth and fifth degree felonies, and (3) the victim’s testimony at sentencing

indicated that she “induced or facilitated the offense,” the commission of his second

offense after pleading guilty to the first offense, by calling him to her home to help

her with a medical situation concerning her high-risk pregnancy. (Appt. Br. at 7)

{¶18} First, the trial court addressed the apparent discrepancy between the

ORAS number of 17 indicating a moderate risk of reoffending, and Baskin’s

extensive record of unsuccessfully responding to sanctions.2 The trial court noted

that “the defendant has a minimum of five prior felonies, multiple domestic violence

violations and there is no question that clearly the violation in case number

CR20160074 occurred while the defendant was under a sanction awaiting

sentencing in case number CR20150467 is a factor indicating future crime is likely.”

(Doc. Nos. 26, 50 at p. 26). The trial court specifically found the ORAS score of 31,

2 ORAS is the Ohio Risk Assessment System, the tool selected by the Ohio Department of Rehabilitation and Correction to “assess an adult offender’s risk of reoffending and to assess the offender’s rehabilitative needs.” Ohio Adm.Code 5120–13–01(A).

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which indicates a high risk, assessed for Baskin in 2014 to be more accurate given

his criminal history. Furthermore, at least one court has held that “ORAS is a work

in progress, and is not a litmus test for sentencing.” State v. Jennings, 2d Dist. Clark

No.2013 CA 60, 2014-Ohio-2307, ¶ 28. Moreover, there are several factors a trial

court is to consider when fashioning the appropriate felony sentence, the ORAS

score is just one of these factors.

{¶19} Second, we note that R.C. 2929.13(B)(1)(a) sets forth a presumption

for community control if an offender is convicted of or pleads guilty to a felony of

the fourth or fifth degree that is not an offense of violence. However pursuant to

R.C. 2929.13(B)(1)(b)(iii) the trial court has discretion to impose a prison term upon

said offender if the offender violated a term of the conditions of bond as set by the

court. In addition, R.C. 2929.13(B)(1)(b) directs the trial court to determine the

applicability of a list of factors when sentencing an offender for a fourth or fifth

degree felony that is not an offense of violence which includes (x) whether “[t]he

offender at the time of the offense was serving, or the offender previously had

served, a prison term,” and (xi) whether “[t]he offender committed the offense while

under a community control sanction, while on probation, or while released from

custody on a bond or personal recognizance.

{¶20} The trial court found at the sentencing hearing that Baskin had already

served a prison term, which was verified by the pre-sentencing investigation report.

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The trial court also mentioned that Baskin committed one of the offenses for which

he was being sentenced while he was on a personal recognizance bond, and that the

offense constituted a violation of his bond conditions. Moreover, at the hearing on

the Bill of Information for Case Number CR20160074, the trial court acknowledged

that the sentencing statutes created a presumption against prison for fourth and fifth

degree felonies of this kind, but informed Baskin that the presumption can be

“overcome” in certain situations. (Doc. Nos. 24, 50 at 7-8).

{¶21} Finally, even though the victim in this case attempted to minimize the

seriousness of Baskin’s conduct in violating the protection order by stating that the

first violation was simply Baskin attempting to give their daughter a birthday

present, and then taking personal responsibility for the second violation by claiming

she called him to the home because of a medical concern, it was within the trial

court’s discretion to assess her credibility as to those statements and assign weight

to it accordingly.

{¶22} Moreover, on cross-examination, the victim admitted that she sought

a protection order in late November 2015 due to Baskin committing physical

violence against her, and she also admitted that the first violation of that protection

order occurred within a couple weeks of the order being issued and happened at

midnight when their daughter was asleep. Baskin also points to the victim’s

testimony in which she claimed that she tried to get the protection order lifted by

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filing a motion with the Domestic Relations Court that issued the protection order,

however, neither the motions nor the alleged orders denying her request were

submitted at the hearing. The record also reflects that Baskin is the father of the

victim’s three young children, and at forty-four years of age is significantly older

than the victim who was twenty years old at the time of the sentencing hearing.

{¶23} In light of the foregoing, we find no error in the trial court’s imposition

of maximum sentences in these cases and we are also not persuaded by Baskin’s

argument on appeal that the trial court failed to give due consideration to certain

sentencing factors. Although not expressly articulated in the assignment of error,

we also find that the trial court made the appropriate statutory findings to impose

consecutive sentences pursuant to R.C. 2929.14(C)(4). Accordingly, we conclude

that the Appellant failed to prove by clear and convincing evidence that the record

does not support the trial court’s sentence in these cases. Therefore, we do not find

the sentences entered by the trial court contrary to law.

{¶24} For all these reasons, the assignment of error is overruled and the

judgments are affirmed.

PRESTON and ROGERS, J.J., concur.

/jlr

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