State v. Ferrell

2011 Ohio 1180

• Court: Ohio Court of Appeals
• Decided: March 9, 2011
• Docket: 10 MA 95
• Status: Published

Opinion

[Cite as State v. Ferrell, 2011-Ohio-1180.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 10 MA 95 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) DAVID C. FERRELL, III ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 10TRD540

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Joseph Macejko Youngstown City Prosecutor 26 S. Phelps Street Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Robert J. Rohrbaugh, II Robert J. Rohrbaugh, II, LLC 4800 Market Street, Suite A Boardman, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 9, 2011

WAITE, P.J. -2-

{1} Appellant David C. Ferrell III appeals the sentence imposed on him

after entering a plea of no contest to two misdemeanor traffic offenses. Appellant

argues that the trial judge failed to consider the purposes and principles of

misdemeanor sentencing found in R.C. 2929.21-22. The state did not respond to this

appeal. Appellant did not provide a transcript of the sentencing hearing, and without

the transcript we must presume that the proceedings in the trial court were correct.

Further, in the sentencing judgment entry the judge states that the court considered

the statutory sentencing criteria. Based on the record provided for us on appeal, we

affirm the judgment of the trial court.

{2} On March 29, 2010, Appellant was charged with one count of driving

under suspension in violation of Youngstown Municipal Ordinance (“Ord.”) 335.07(a),

and failure to stop after an accident in violation of R.C. 4549.02(A). Both charges

were first degree misdemeanors. On May 25, 2010, Appellant entered into a written

Crim.R. 11 plea agreement. He agreed to plead no contest to operating a vehicle

without a license, R.C. 4510.12(B)(2), a minor misdemeanor, and failure to stop after

an accident, R.C. 4549.02(A), a first degree misdemeanor. He also agreed to pay

$116.50 in restitution to the victim. The plea hearing and sentencing took place the

same day. The trial court’s sentencing entry was filed on May 25, 2010. The court

sentenced Appellant to 60 days in jail, a $500 fine, restitution to the victim, and three

years of probation. This appeal followed on June 15, 2010. No transcripts were

ordered for this appeal. After Appellant filed his brief for this appeal, the state

responded on August 12, 2010, with a document stating that it would not be filing a -3-

brief. When an appellee fails to file a brief, App.R. 18(C) allows the appellate court to

“accept the appellant's statement of the facts and issues as correct and reverse the

judgment if appellant's brief reasonably appears to sustain such action.”

ASSIGNMENT OF ERROR

{3} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING

TO PROPERLY CONSIDER THE PURPOSES AND APPROPRIATENESS OF

MISDEMEANOR SENTENCING WHEN IMPOSING APPELLANTS [SIC]

SENTENCE.”

{4} Appellant argues that a judge sentencing a criminal defendant for

misdemeanor crimes must consider the purposes and principles of misdemeanor

sentencing found in R.C. 2929.21-22, and must consider the misdemeanor

sentencing factors found in R.C. 2929.22. Appellant contends that the trial court did

not abide by these statutes and that his sentence should be reversed.

{5} R.C. 2929.21(A) states:

{6} “A court that sentences an offender for a misdemeanor or minor

misdemeanor violation of any provision of the Revised Code, or of any municipal

ordinance that is substantially similar to a misdemeanor or minor misdemeanor

violation of a provision of the Revised Code, shall be guided by the overriding

purposes of misdemeanor sentencing. The overriding purposes of misdemeanor

sentencing are to protect the public from future crime by the offender and others and

to punish the offender. To achieve those purposes, the sentencing court shall

consider the impact of the offense upon the victim and the need for changing the -4-

offender's behavior, rehabilitating the offender, and making restitution to the victim of

the offense, the public, or the victim and the public.”

{7} In general, a sentencing court should be guided by the overriding

purposes of misdemeanor sentencing found in R.C. 2929.21(A), which are to protect

the public from future crime by the offender and others, and to punish the offender.

In order to achieve those purposes, the sentencing court is to consider the factors

found in R.C. 2929.22, which include: the nature and circumstances of the offense;

the impact of the offense upon the victim; the need for changing the offender's

behavior; the need for rehabilitating the offender; the need for making restitution to

the victim of the offense and to the public; whether the conduct was committed with

heedless indifference to the consequences; whether the victim's age or any other

factor made the impact of the offense more serious; whether the offender is likely to

commit future crimes in general; or any other factor relevant to achieving the

purposes and principles of sentencing. State v. Gill, 7th Dist. No. 09 MA 71, 2010-

Ohio-5525, ¶14; State v. Hause, 12th Dist. No. CA2008-05-063, 2009-Ohio-548, ¶11.

{8} We stated in State v. Crable, 7th Dist. No. 04 BE 17, 2004-Ohio-6812:

{9} “According to R.C. 2929.22, the trial court must consider the criteria

listed in that statute before sentencing someone convicted of a misdemeanor.

However, the trial court is not required to recite on the record its reasons for imposing

the sentence. Failure to consider the sentencing criteria is an abuse of discretion;

but when the sentence is within the statutory limit, a reviewing court will presume that

the trial judge followed the standards in R.C. 2929.22, absent a showing otherwise. -5-

Failing to explain the statutory reasons behind a certain sentence is only fatal if there

are mitigating factors without any aggravating factors given at the sentencing

hearing.” (Citations omitted.) Id. at ¶24.

{10} Although a sentencing court formerly was required to make specific

factual findings prior to imposing a maximum sentence, that requirement was

eliminated after the Ohio Supreme Court's ruling in State v. Foster, 109 Ohio St.3d 1,

845 N.E.2d 470. Although Foster involved felony sentencing, we specifically

invalidated as unconstitutional the requirement in R.C. 2929.22(C) that the trial judge

make factual findings as a prerequisite to imposing a maximum misdemeanor

sentence. State v. Brooks, 7th Dist. No. 05MA31, 2006-Ohio-4610, ¶27-28, 34-38.

The trial court did not impose the maximum jail term in this case, so there is no issue

regarding whether or not the court should have made any specific factual findings to

justify a maximum sentence.

{11} The sentencing court has discretion to determine the most effective way

to achieve the purposes and principles of sentencing set forth in section 2929.21 of

the Revised Code. R.C. 2929.22(A). An appellate court reviews a trial court's

sentence on a misdemeanor violation under an abuse of discretion standard. R.C.

2929.22; State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155,

¶15. An abuse of discretion means more than a mere error of judgment; it implies

that the trial court's decision was unreasonable, arbitrary, or unconscionable. State

v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144. -6-

{12} The sentencing judgment entry states that “[t]he Court considered the

statutory sentencing criteria.” Appellant has not cited to any part of the record that

contradicts this statement. Appellant argues that the trial court did not make a

separate determination of the appropriateness of community control sanctions, and

that this deficiency should entitle him to a new sentencing hearing. “Just as

consideration of the principles and purposes of sentencing are presumed from a

silent record, consideration of the appropriateness of a community control sanction is

also presumed from a silent record as nothing in R.C. 2929.22(C) requires the court

to evince its consideration on the record.” State v. Best, 7th Dist. No. 08 MA 260-

2009-Ohio-6806, ¶26, citing State v. Cossack, 7th Dist. No. 08MA161, 2009-Ohio-

3327, ¶21-22, 29, and State v. Friesen, 3d Dist. No. 3-05-06, 2005-Ohio-5769, ¶23-

24.

{13} Although the record, such as it exists, is silent as to the court’s

consideration of specific sentencing factors, including factors relating to community

control, nothing here overcomes the presumption that the trial court considered all

the proper factors in sentencing Appellant. Appellant’s argument regarding

community control sanctions is further contradicted by the fact that the court did

impose a community control sanction as part of the sentence. Intensive probation

supervision is listed as a community control sanction in R.C. 2929.27(A)(5), and the

court imposed this as part of the sentence. A misdemeanor sentencing court may

impose both a jail term and community control sanctions as part of the same

sentence. R.C. 2929.25(A)(1)(a). In this case, the court imposed 60 days of jail time, -7-

out of a possible maximum sentence of 180 days, and imposed a variety of other

sanctions, including community control. Thus, Appellant’s argument that the court

did not consider whether to impose community control sanctions flies in the face of

this record on appeal, because the court not only considered community control

sanctions, but actually imposed them.

{14} Although the state did not reply to Appellant’s arguments in this case,

App.R. 18(C) does not require reversal on appeal simply due to a lack of response

from the appellee. Based on the record as it exists, here, nothing in Appellant’s brief

reasonably justifies reversing the trial court’s judgment. The judgment is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.