State v. Krouskoupf

2012 Ohio 1488

Opinion

[Cite as State v. Krouskouph, 2012-Ohio-1488.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : HARRY KROUSKOUPF, III : Case No. CT11-0047 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case. No. CR2011-0123

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 26, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH ROBERT D. ESSEX 27 North Fifth Street 604 East Rich Street Zanesville, OH 43701 Columbus, OH 43215 Muskingum County, Case No. CT11-0047 2

Farmer, J.

{¶1} On May 18, 2011, the Muskingum County Grand jury indicted appellant,

Harry Krouskoupf, III, on one count of aggravated robbery in violation of R.C. 2911.01

and one count of theft in violation of R.C. 2913.02. On July 27, 2011, appellant pled

guilty to an amended count of robbery in violation of R.C. 2911.02, a felony of the

second degree. By sentencing entry filed September 1, 2011, the trial court sentenced

appellant to six years in prison.

{¶2} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶3} "PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL COURT'S

SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW, WAS AN

ABUSE OF DISCRETION, AND VIOLATED THE PROPORTIONALITY

REQUIREMENT OF OHIO SENTENCING LAWS."

{¶4} Appellant claims the trial court erred in sentencing him to six years in

prison when the state recommended four years. We disagree.

{¶5} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence:

{¶6} "In applying Foster [State v., 109 Ohio St.3d 1, 2006-Ohio-856] to the

existing statutes, appellate courts must apply a two-step approach. First, they must Muskingum County, Case No. CT11-0047 3

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 shall be reviewed

under an abuse-of-discretion standard."

{¶7} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

{¶8} Appellant pled guilty to one count of robbery in the second degree and the

trial court sentenced appellant to six years in prison. Felonies of the second degree are

punishable by "two, three, four, five, six, seven, or eight years." R.C. 2929.14(A)(2).

The trial court sentenced appellant within the permissible range. In its sentencing entry

filed September 1, 2011, the trial court noted the following:

{¶9} "The Court has considered the record, all statements, any victim impact

statement, the pre-sentence report prepared, the plea recommendation in this matter,

as well as the principles and purposes of sentencing under Ohio Revised Code

§2929.11 and its balance of seriousness and recidivism factors under Ohio Revised

Code §2929.12."

{¶10} During the July 27, 2011 plea hearing, the trial court explained to appellant

the possible penalty (two through eight years) and specifically cautioned appellant that

the state's recommendation was not binding on the trial court:

{¶11} "THE COURT: Do you understand, Mr. Krouskoupf, that the State's

recommendation is not binding on this Court and, at sentencing, I do not have to follow

it? Muskingum County, Case No. CT11-0047 4

{¶12} "THE DEFENDANT: Yes, sir." T. at 8.

{¶13} There is no evidence to indicate the sentence was disproportional or that

the trial court acted unreasonably or failed to consider the factors set forth in R.C.

2929.11 and 2929.12.

{¶14} Upon review, we find the sentence was neither contrary to law nor an

abuse of discretion.

{¶15} The sole assignment of error is denied.

{¶16} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

s/ Sheila G. Farmer_____________

s/ William B. Hoffman_____________

s/ John W. Wise _____________

JUDGES

SGF/sg 314 [Cite as State v. Krouskouph, 2012-Ohio-1488.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : HARRY KROUSKOUPF, III : : Defendant-Appellant : CASE NO. CT11-0047

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs

to appellant.

JUDGES [Cite as State v. Krouskouph, 2012-Ohio-1488.]