State v. Bovenzi

2012 Ohio 2303

• Court: Ohio Court of Appeals
• Decided: May 24, 2012
• Docket: 97271, 97272
• Status: Published

Opinion

[Cite as State v. Bovenzi, 2012-Ohio-2303.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 97271 and 97272

STATE OF OHIO PLAINTIFF-APPELLEE vs.

MICHAEL BOVENZI DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-552022 and 552321

BEFORE: Keough, J., Celebrezze, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: May 24, 2012 ATTORNEY FOR APPELLANT

John P. Parker 988 East 185th Street Cleveland, OH 44119

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor Terese M. McKenna Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} In these consolidated appeals, defendant-appellant, Michael Bovenzi,

appeals from the trial court’s judgments finding him guilty of three theft-related fifth

degree felonies and sentencing him to 22 months in prison. Bovenzi contends that his

guilty pleas were not knowingly, voluntarily, and intelligently made and that the

22-month aggregate prison term imposed in the two cases was an abuse of the trial court’s

discretion. For the reasons that follow, we affirm.

{¶2} In Case No. CR-552022, Bovenzi entered guilty pleas to attempted grand

theft and misuse of a credit card with an elderly victim, both fifth degree felonies. In

Case No. CR-552321, Bovenzi pled guilty to receiving stolen property, also a fifth degree

felony.

{¶3} The trial court subsequently sentenced Bovenzi in Case No. CR-552022 to

11 months incarceration on each count, to run concurrently. In Case No. CR-552321, the

court sentenced Bovenzi to 11 months incarceration to run consecutive to the sentence in

Case No. CR-552022, for an aggregate term of 22 months.

{¶4} Bovenzi first contends that his pleas were not knowingly, voluntarily, and

intelligently made because the trial court improperly informed him during the plea

colloquies of “bad time,” which no longer exists under Ohio law. The provisions of Ohio law authorizing “bad time” — the Parole Board’s authority to extend an inmate’s

prison term for violations of prison rules — were declared unconstitutional by the Ohio

Supreme Court in 2000. State ex rel. Bray v. Russell, 89 Ohio St.3d 132,729 N.E.2d 359

(2000). The statute that authorized bad time (R.C. 2967.11) was repealed by the

legislature in 2009. Bovenzi argues that his pleas cannot be considered knowing,

voluntary, or intelligent when there is such a “gross misunderstanding” of the law.

{¶5} Our review of the plea colloquies fails to support Bovenzi’s argument

because the trial court made no mention of “bad time” during the plea colloquies.

Although the court made an apparent reference to “bad time” at sentencing, this

advisement had no effect on the entry of Bovenzi’s guilty pleas. Bovenzi’s first

assignment of error is therefore overruled.

{¶6} In his second assignment of error, Bovenzi contends that the trial court

abused its discretion in imposing a 22-month aggregate prison sentence.

{¶7} We review felony sentences under the standard set forth in State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, we 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 is then reviewed under an abuse-of-discretion

standard.

{¶8} Bovenzi makes no argument that the trial court failed to comply with the

applicable rules and statutes in imposing his sentence or that his sentence is contrary to law. Rather, he argues that the trial court abused its discretion in imposing a 22-month

prison sentence for his “low-level, non-violent crimes” because there were other

sentencing options the trial court could have imposed (such as community control) that

would have been much cheaper for the state of Ohio than imprisonment.

{¶9} We find no abuse of discretion. After reviewing the presentence

investigation report, the trial court noted at sentencing that Bovenzi had violated

probation every time he had been placed on probation in the past. The court also found

that he had a high risk assessment, had failed to express any remorse for his crimes, and

that his probation report was “not complimentary.” As Bovenzi has repeatedly

demonstrated that he cannot adhere to the terms of community control, the trial court did

not abuse its discretion in imposing a 22-month prison sentence. Appellant’s second

{¶10} 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE FRANK D. CELEBREZZE, JR., P.J., and COLLEEN CONWAY COONEY, J., CONCUR