State v. Guy

2016 Ohio 425

• Court: Ohio Court of Appeals
• Decided: February 5, 2016
• Docket: 2015-CA-28 2015-CA-29
• Status: Published

Opinion

[Cite as State v. Guy, 2016-Ohio-425.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NOS. 2015-CA-28; : 2015-CA-29 v. : : T.C. NOS. 13CR446A and 13CR819 SAM GUY, III : : (Criminal appeal from Defendant-Appellant : Common Pleas Court) : : ...........

OPINION

Rendered on the ___5th___ day of ____February____, 2016.

...........

RYAN A. SAUNDERS, Atty, Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

DONOVAN, P.J.

{¶ 1} Defendant-appellant Sam Guy, III, appeals his conviction and sentence for

one count of possession of heroin, in violation of R.C. 2925.11(A), a felony of the third

degree, one count of having a weapon while under disability, in violation of R.C. -2-

2923.13(A)(3), also a felony of the third degree, and one count of failure to appear, in

violation of R.C. 2937.29 and 2937.99, a felony of the fourth degree.

{¶ 2} On June 24, 2013, Guy was indicted in Clark County Common Pleas Case

No. 2013 CR 446A for one count of trafficking in heroin, one count of possession of heroin,

one count of possession of criminal tools, one count of having a weapon while under

disability, and one count of attempted tampering with evidence. Thereafter, on

December 3, 2013, Guy was indicted in Clark County Case No. 2013 CR 819 for one

count of failure to appear.

{¶ 3} On February 4, 2015, Guy pled guilty to one count of possession of heroin

and one count having a weapon while under disability in Case No. 2013 CR 446A. Guy

also pled guilty to one count failure to appear in Case No. 2013 CR 819. In exchange

for his guilty plea in both cases, the State agreed to dismiss the remaining counts in Case

No. 2013 CR 446A. The State also agreed to dismiss a separate indictment against Guy

in Case No. 2013 CR 580. Additionally, the State agreed to remain silent at Guy’s

sentencing hearing. The trial court accepted Guy’s plea and found him guilty.

{¶ 4} On February 24, 2015, the trial court sentenced Guy to three years in prison

for possession of heroin, three years for having a weapon while under disability, and one

year for failure to appear. The trial court ordered that Guy’s sentences were to run

consecutively for an aggregate sentence of seven years in prison.

{¶ 5} Guy filed a timely notice of appeal with this Court on April 8, 2015, in both

cases. We consolidated the cases for purposes of the instant appeal.

{¶ 6} Guy’s sole assignment of error on appeal is as follows:

{¶ 7} “THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE -3-

SENTENCES.”

{¶ 8} In his sole assignment, Guy contends that the trial court’s decision to impose

consecutive sentences was not supported by evidence in the record, and is therefore

contrary to law.

{¶ 9} Initially, we note that Guy was convicted and sentenced for two third degree

felonies and one fourth degree felony. Pursuant to R.C. 2929.14(A)(3)(b), the basic

prison term for a felony of the third degree shall be nine, twelve, eighteen, twenty-four,

thirty, or thirty-six months (three years). For a felony of the fourth degree, the prison term

shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,

seventeen, or eighteen months. R.C. 2929.14(A)(4).

{¶ 10} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender.” R.C. 2929.11(A).

{¶ 11} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.’ State v. Nelson, 2d

Dist. Montgomery No. 25026, 2012–Ohio–5797, ¶ 62. ‘However, the trial court must

comply with all applicable rules and statutes, including R.C. 2929.11 and R.C.

2929.12.’ Id.” State v. Eicholtz, 2d Dist. Clark No. 2012 CA 7, 2013–Ohio–302, ¶ 53.

{¶ 12} Before imposing a consecutive sentence, a trial court is required to find

that: (1) “consecutive service is necessary to protect the public from future crime or to

punish the offender”; (2) “consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public”;

and (3) any of the following: -4-

(a) The offender committed one or more of the multiple offenses while the offender

was awaiting trial or sentencing, was under a sanction imposed pursuant

to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under

post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more

courses of conduct, and the harm caused by two or more of the multiple

offenses so committed was so great or unusual that no single prison term for

any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

R.C. 2929.14(C)(4).

{¶ 13} As this Court recently noted in State v. McGlothan, 2d Dist. Clark Nos.

2014–CA–120, 2014–CA–121, 2014–CA–122, 2015–Ohio–2713, ¶ 12–13:

“On appeals involving the imposition of consecutive sentences, R.C.

2953.08(G)(2)(a) directs the appellate court ‘to review the record, including

the findings underlying the sentence’ and to modify or vacate the sentence

‘if it clearly and convincingly finds * * * [t]hat the record does not support the

sentencing court's findings under division * * * (C)(4) of section 2929.14 * *

* of the Revised Code.’ ” State v. Bonnell, 140 Ohio St.3d 209, 2014–

Ohio–3177, 16 N.E.3d 659, ¶ 28. In State v. Rodeffer, 2013–Ohio–5759, 5

N.E.3d 1069 (2d Dist.), we held that we would no longer use an abuse of

discretion standard in reviewing a felony sentence, but would apply the -5-

standard of review set forth in R.C. 2953.08(G)(2).

Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,

or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it “clearly and convincingly” finds either (1) that the

record does not support certain specified findings or (2) that the sentence

imposed is contrary to law. Rodeffer stated that “[a]lthough [State v.

Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124] no longer

provides the framework for reviewing felony sentences, it does provide * * *

adequate guidance for determining whether a sentence is clearly and

convincingly contrary to law. * * * According to Kalish, a sentence is not

contrary to law when the trial court imposes a sentence within the statutory

range, after expressly stating that it had considered the purposes and

principles of sentencing set forth in R.C. 2929.11, as well as the factors

in R.C. 2929.12.” (Citations omitted.) Rodeffer at ¶ 32.

{¶ 14} Guy does not claim that the trial court failed to make the statutory findings

under R.C. 2929.14(C)(4); rather, he asserts that the record does not support the trial

court's findings.

{¶ 15} Upon review, we conclude that the record clearly establishes that the trial

court made all of the requisite findings to support the imposition of consecutive sentences.

When imposing consecutive sentences, the trial court made the following findings:

Okay. The State agreed to remain silent at disposition. The

defendant has a prior conviction for aggravated trafficking in drugs in 1998

out of Montgomery County for which he served one year in the Ohio State -6-

Penitentiary.

Conviction for aggravated trafficking in drugs and weapons under

disability in 1993 out of Clark County, Ohio, for which he served four years

in the Ohio State Penitentiary.

And trafficking in heroin, two counts, in 2008 out of Clark County,

Ohio, for which he served two years in the Ohio State Penitentiary.

I do find that consecutive sentences are necessary to protect the

public from future crime and to punish the defendant.

That they are not disproportionate to the seriousness of the

defendant’s conduct and to the danger he poses to the public.

And that his history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the defendant.

{¶ 16} Guy received the maximum penalty of three years for each of the third-

degree felonies to which he pled guilty and one year for the fourth degree felony, which

is less than the maximum of eighteen months in prison. Accordingly, his sentence was

within the statutory range and thus, not contrary to law. Furthermore, in determining

Guy’s sentence, the trial court indicated in the judgment entry of conviction that it

considered the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. We have held,

however, that “[a] trial court is not required to state that it considered R.C.

2929.11 and R.C. 2929.12. Unless the sentence is contrary to law, a trial court is

presumed to have considered them.” State v. Neff, 2d Dist. Clark No. 2012–CA–31, -7-

2012–Ohio–6047.

{¶ 17} Furthermore, the trial court articulated the findings required by R.C.

2929.14(C)(4) in order to impose consecutive sentences, namely that consecutive

sentences are necessary to protect the public and punish Guy, that consecutive

sentences are not disproportionate to the seriousness of Guy’s conduct, and that his

history of criminal conduct demonstrated that consecutive sentences are necessary to

protect the public from future crime committed by him. In our view, the record clearly

supports the trial court's findings.

{¶ 18} Guy had five prior felony convictions as an adult, most involving selling

drugs, a weapons charge, and many prior misdemeanor convictions. Guy also has an

extensive juvenile history. Especially significant is the fact that Guy was adjudicated

delinquent on two separate occasions for aggravated robbery, conduct which if committed

by an adult would constitute felonies of the first degree. As noted by the trial court, Guy

had also been imprisoned numerous times. The offenses for which Guy

was sentenced in the cases before us involve illegal drugs and weapons. Finally, Guy’s

judgment entry of conviction incorporates all of the findings made by the trial court at the

sentencing hearing. For the foregoing reasons, we cannot clearly and convincingly find

that the record does not support the trial court's findings.

{¶ 19} Guy’s sole assignment of error is overruled.

{¶ 20} Guy’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

..........

FROELICH, J. and WELBAUM, J., concur. -8-

Copies mailed to:

Ryan A. Saunders Robert Alan Brenner Hon. Douglas M. Rastatter