State v. Bledsoe

2012 Ohio 3277

• Court: Ohio Court of Appeals
• Decided: July 20, 2012
• Docket: 24840
• Status: Published

Opinion

[Cite as State v. Bledsoe, 2012-Ohio-3277.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24840

v. : T.C. NO. 11CR1010

JOSHUA D. BLEDSOE : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 20th day of July , 2012.

JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Joshua

Bledsoe, [Cite as State v. Bledsoe, 2012-Ohio-3277.] filed October 6, 2011. Bledsoe appeals from a concurrent sentence of 15 months following

pleas of guilty to two counts of nonsupport of dependents, in violation of R.C. 2919.21(B),

both felonies of the fourth degree. In exchange for his pleas, two additional counts in the

indictment were dismissed. Bledsoe further agreed to pay restitution on all four counts.

{¶ 2} At his August 26, 2011 plea hearing, the trial court made clear that, while

the State agreed to dismiss two of the four counts against Bledsoe, there was no agreement

regarding sentencing. The court correctly advised Bledsoe that he was subject to a

maximum sentence of 18 months on each count, for a possible aggregate term of three years.

{¶ 3} Bledsoe was sentenced on September 27, 2011. Prior to imposing sentence,

Bledsoe spoke, stating that he had been in a motorcycle accident and as a result, he was

released from his employment. He further stated that he resumed work in May and

promptly notified the Child Support Enforcement Agency, but that the Agency did not begin

deducting child support payments until August.

{¶ 4} The court referred to the pre-sentence investigation report and the following

exchange occurred:

THE COURT: Sir, you previously had the opportunity in

non-support court. You were not successful in any respect. You were

revoked in that case for your, quite frankly, utter non-compliance with your

supervision.

In addition, sir, you indicate that you were in a motorcycle accident in 3

2008.1 This indictment was in 2011.

In addition, sir, the pre-sentence investigation, and I will read you a

quote:

“Mr. Bledsoe admitted that these injuries did not keep him from being

employed.”

In addition, sir, it’s my understanding that you made no voluntary

payments on your child support between the time you became employed in

May and now. You waited until it came out of your paycheck. Right?

There’s nothing that demonstrates you made any payments

whatsoever.

THE DEFENDANT: No, ma’am. * * * I thought they was already

takin’ it out, because usually when I reported it, they started takin’ it out

immediately.

THE COURT: * * * Well, and you would have been able to tell from

your check, sir, that it wasn’t coming out.

THE DEFENDANT: I didn’t get a check for a month.

***

THE COURT: - - Mr. Bledsoe, it’s always an excuse. * * *

THE COURT: - - a reason why you don’t support these two children.

1 The pre-sentence investigation report indicates that Bledsoe was in a motorcycle accident in 2006. 4

Sir, you were found in contempt - - let’s see. October the 20th, 2010 you

were found in contempt for failing to pay child support. * * * - - by the

juvenile court. Yet, it continues.

Sir, on each count, after considering the purposes and principles of

sentencing and the seriousness and recidivism factors and especially the fact

that you had previously had an opportunity at non-support court and despite

those opportunities, despite being sentenced, the conduct continued on each

count, I’m going to sentence you to fifteen months at the Corrections

Reception Center. That will be served concurrently.

{¶ 5} Bledsoe asserts one assignment of error as follows:

“MR. BLEDSOE’S FIFTEEN MONTH PRISON SENTENCE IS CLEARLY AND

CONVINCINGLY CONTRARY TO LAW AND AN ABUSE OF THE TRIAL COURT’S

DISCRETION.”

{¶ 6} According to Bledsoe, his sentence is contrary to the principles of felony

sentencing in R.C. 2929.11 and 2929.12, and it is “excessive under traditional concepts of

justice and disproportionate to the crime.”

{¶ 7} As this Court has previously noted:

We review a felony sentence using a two-step procedure. State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, [¶ 4]. First,

we must “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.” Id. If this step is satisfied, the 5

trial court’s sentencing must then be reviewed on an abuse of discretion

standard. Id. Generally, abuse of discretion occurs when a decision is

grossly unreasonable, unsound, illegal, or unsupported by the evidence.

State v. Money, 2d Dist. Clark No. 2009 CA 119, 2010-Ohio-6225, [¶13].

“Ordinarily, a trial court does not abuse its discretion when it imposes a

sentence within the range permitted by the applicable statute.” State v.

Bailum, 2d Dist. Clark No. 2007 CA 55, 2008-Ohio-2999, [¶5]. State v.

Roebuck, 2d Dist. Montgomery No. 24799, 2012-Ohio-1859, ¶ 9.

{¶ 8} We note that Bledsoe did not argue below that his sentence is

disproportionate to sentences imposed in similar circumstances, and he does not argue that

his sentence exceeds the statutory range. Pursuant to R.C. 2929.14(A)(4), as the trial court

indicated, it could have sentenced Bledsoe to a term of 18 months on each count, for a total

aggregate term of three years, and his sentence is accordingly not contrary to law.

{¶ 9} R.C. 2929.12 sets forth statutory factors to consider in felony sentencing.

R.C. 2929.12(A) provides:

* * * a court that imposes a sentence under this chapter upon an

offender 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. In exercising that discretion, the court shall

consider the factors set forth in divisions (B) and (C) of this section relating

to the seriousness of the conduct and the factors provided in divisions (D) and

(E) of this section relating to the likelihood of the offender’s recidivism and, 6

in addition, may consider any other factors that are relevant to achieving

those purposes and principles of sentencing.

{¶ 10} As noted above, while the State agreed to drop the additional felonies,

there was no agreement between the parties regarding sentencing. Bledsoe’s pre-sentence

investigation report indicates that Bledsoe was found to be in contempt of court for failure to

pay child support in 2001, and twice in 2002. He was indicted on four counts of nonsupport

of dependents in 2003, found guilty on two counts, and sentenced to community control. In

2007, he was sentenced to 12 months for failing to comply with the conditions of community

control. In 2010, Bledsoe was found to be in contempt for failure to pay child support, and

his 30 day sentence was suspended on the condition that he make payments as ordered for

six months. The pre-sentence investigation report further provides that Bledsoe has an adult

misdemeanor record as well.

{¶ 11} The trial court indicated that it considered the purposes and principles of

sentencing, and given Bledsoe’s lengthy history of failing to support his children, prior

imprisonment and misdemeanor record, we conclude that the trial court did not abuse its

discretion in sentencing Bledsoe to 15 months.

{¶ 12} Bledsoe’s sole assigned error is overruled, and the judgment of the trial court

is affirmed.

FAIN, J. and HALL, J., concur. [Cite as State v. Bledsoe, 2012-Ohio-3277.] Copies mailed to:

Johnna M. Shia Lori R. Cicero Hon. Mary Katherine Huffman