State v. Lipker

2013 Ohio 3278

• Court: Ohio Court of Appeals
• Decided: July 26, 2013
• Docket: 2012-CA-55
• Status: Published

Opinion

[Cite as State v. Lipker, 2013-Ohio-3278.]

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

STATE OF OHIO

Plaintiff-Appellee

v.

BRENT M. LIPKER

Defendant-Appellant

Appellate Case No. 2012-CA-55

Trial Court Case No. 2012-CR-187

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 26th day of July, 2013.

...........

LISA M. FANNIN, Atty. Reg. No. 0082337, Clark County Assistant Prosecuting Attorney, 50 East Columbia Street, P.O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

ROBERT L. SCOTT, Atty. Reg. No 0086785, 8801 North Main Street, Suite 200, Dayton, Ohio 45415 Attorney for Defendant-Appellant

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

WELBAUM, J. 2

{¶ 1} Defendant-Appellant, Brent M. Lipker, appeals from the prison sentence

imposed after he pled guilty to three counts of Burglary as felonies of the second degree. Lipker

argues that the trial court abused its discretion in imposing three consecutive four-year prison

sentences. We conclude that the trial court did not abuse its discretion. Lipker’s sentence was

reasonable based on his criminal history, the economic harm caused by his offenses, his

unfavorable response to previous sanctions, his failure to rehabilitate from drug addiction, and

the fact that he was on community control when he committed the burglary offenses. The

judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 2} On March 19, 2012, Brent M. Lipker was indicted by the Clark County Grand

Jury on three counts of Burglary as felonies of the second degree in Case No. 12 CR 187.

Lipker was subsequently indicted on two additional counts of Burglary in Case Nos. 12-CR-211

and 12-CR-285. Appellee, the State of Ohio, agreed to dismiss Case Nos. 12-CR-211 and

12-CR-285 if Lipker agreed to plead guilty to the three counts of Burglary in Case No.

12-CR-187. As part of the plea agreement, Lipker also had to agree to pay restitution to two of

the victims in the amount of $8,000 and $200. Lipker accepted the plea agreement, and on May

23, 2012, he pled guilty to three counts of Burglary. The two counts in Case Nos. 12-CR-211

and 12-CR-285 were dismissed.

{¶ 3} The three counts to which Lipker pled guilty arose from Lipker breaking into

three separate residences in Clark County, Ohio on March 8, 2012. Lipker was only 21 years

old when he committed these offenses, but he had an extensive criminal record as a juvenile. 3

Lipker’s juvenile record began in January 2005, for a robbery offense. As a result, he was

placed on probation and was given intensive treatment at Youth and Family Services. The

treatment included random drug screens due to Lipker suffering from drug addiction.

{¶ 4} In December 2005, Lipker violated his probation and was ordered to complete a

drug court program. In March 2006, he violated his probation again, and was assigned and

transported to a drug and alcohol treatment program. In December 2006, he committed a third

probation violation, and was placed in a detention center for five or six days.

{¶ 5} In July 2007, Lipker was charged with breaking and entering and vandalism. He

was bound over on these charges, but the charges were later dismissed. In 2008, Lipker was

charged with robbery and was also bound over on this charge. He pled guilty to robbery and

was imprisoned until he was placed on judicial release and community control in June 2010.

While on judicial release and community control, Lipker committed the burglary offenses that

are the subject of this case.

{¶ 6} At Lipker’s sentencing hearing on June 13, 2012, the trial court reviewed the

relevant sentencing factors set forth in R.C. 2929.12(B) through (E). The court considered

Lipker’s criminal history, the economic harm caused by his offenses, his unfavorable response to

previous sanctions, his failure to rehabilitate from drug addiction, and that he was on community

control when he committed the offenses. The trial court also received statements from Lipker

and his defense counsel, and reviewed letters written to the court from Lipker’s parents. The

trial court then imposed three consecutive four-year prison terms, one for each count of Burglary.

Lipker was, therefore, sentenced to a total of 12 years in prison.

{¶ 7} Lipker appeals the trial court’s sentence, claiming that it was an abuse of 4

discretion.

II. Did the Trial Court Abuse its Discretion When Sentencing the Appellant?

{¶ 8} Lipker’s sole assignment of error states that:

The Trial Court Erred and Abused its Discretion by Imposing Consecutive

Sentences on the Defendant-Appellant.

{¶ 9} Under this assignment of error, Lipker argues that the trial court abused its

discretion in imposing three consecutive four-year prison terms, because the burglary offenses

occurred on the same day, they were Lipker’s first offenses since becoming an adult, and they

were committed five years after his last juvenile offense. Lipker also claims that his drug abuse

led to the offenses. Lipker contends that his prison sentence is excessively harsh, given all of

these factors.

{¶ 10} A two-step approach is used in Ohio to review felony sentences. “[A]n

appellate court must first determine whether the sentencing court complied with all applicable

rules and statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order to

decide whether the sentence is contrary to law.” State v. Clark, 2d Dist. Champaign No.

2011-CA-32, 2013-Ohio-300, ¶ 13, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶ 26. “If the sentence is not clearly and convincingly contrary to law, the trial

court’s decision in imposing the term of imprisonment must be reviewed under an

abuse-of-discretion standard.” Id.

A. Appellant’s Prison Sentence Is Not Contrary to Law 5

{¶ 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.” (Citation omitted.) State v. Blessing, 2d

Dist. Clark No. 2011 CA 56, 2013-Ohio-392, ¶ 27. R.C. 2929.14(A)(2) provides that the

authorized statutory range for a second degree felony is a prison term of two, three, four, five,

six, seven, or eight years. Accordingly, Lipker’s prison sentence of four years for each of his

three second degree felonies falls within the authorized statutory range.

{¶ 12} In addition to sentencing a defendant within the appropriate statutory range, “the

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

2929.12.” (Citation omitted.) Blessing at ¶ 27. Given that consecutive prison sentences were

imposed in this case, the trial court must also comply with R.C. 2929.14(C)(4).

{¶ 13} Pursuant to R.C. 2929.11(A):

A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony

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

and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or

local government resources. To achieve those purposes, the sentencing court

shall consider the need for incapacitating the offender, deterring the offender and

others from future crime, rehabilitating the offender, and making restitution to the

victim of the offense, the public, or both.

{¶ 14} Pursuant to R.C. 2929.12(A), the sentencing trial court “has discretion to 6

determine the most effective way to comply with the purposes and principles of sentencing set

forth in section 2929.11 of the Revised Code.” Sections (B) through (E) of R.C. 2929.12

provide various factors for the trial court to consider during sentencing.

{¶ 15} With regard to consecutive prison sentences, R.C. 2929.14(C)(4) states that:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect

the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender's conduct and

to the danger the offender poses to the public, and if the court also finds any of the

following:

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

offender * * * 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.

***

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

consecutive sentences are necessary to protect the public from future crime by the

offender.

{¶ 16} During the sentencing hearing in this case, the trial court discussed the relevant

factors set forth in R.C. 2929.12(B) through (E). Specifically, the court considered Lipker’s

criminal history, the economic harm caused by his offenses, his unfavorable response to previous 7

sanctions, his failure to rehabilitate from drug addiction, and that he was on community control

when he committed the three burglary offenses. Based on these factors the trial court imposed

one four-year prison term for each of Lipker’s offenses. The trial court ordered the sentences to

run consecutively based on the fact that Lipker was on community control when he committed

the offenses, and because his history of criminal conduct demonstrated that consecutive

sentences were necessary to protect the public from future crime by Lipker. The fact that a large

portion of Lipker’s criminal history was committed as a juvenile does not prohibit it from

consideration, as “a court may consider an offender's juvenile record as an indication whether the

offender is likely to commit future crimes.” State v. Drake, 8th Dist. Cuyahoga No. 77460, 2002

WL 69484, *4 (Jan. 9, 2002); Accord R.C. 2929.12(D)(2) and (D)(3).

{¶ 17} The trial court’s purpose and reasoning for imposing three consecutive four-year

prison terms complies with R.C. 2929.11, 2929.12, and 2929.14(C)(4). The prison sentence

also falls within the permissible statutory range for second degree felonies as set forth in R.C.

2929.14(A)(2). The prison sentence, therefore, complies with all applicable rules and statutes.

For the foregoing reasons, the trial court’s decision is not contrary to law.

B. Appellant’s Prison Sentence Is Not an Abuse of Discretion

{¶ 18} “A trial court has broad discretion in sentencing a defendant and a reviewing

court will not interfere with the sentence unless the trial court abused its discretion.” (Citations

omitted.) State v. Bray, 2d Dist. Clark No. 2010 CA 14, 2011-Ohio-4660, ¶ 28.

“Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. It is to be expected that most instances of abuse of 8

discretion will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it

deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would

support a contrary result. (Citation omitted.) AAAA Enterprises, Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).

{¶ 19} The fact that the 2012 burglaries were Lipker’s first offenses since becoming an

adult, and were committed five years after his last juvenile offense, does not render the trial

court’s sentence unreasonable. Lipker has engaged in the same pattern of conduct since he was

a minor, and, despite approximately seven years of intervention by court services and treatment

programs, he has not changed his behavior upon entering into adulthood.

{¶ 20} Additionally, the fact that the three offenses occurred on the same day does not

render the trial court’s sentence unreasonable. While the three burglaries did occur on the same

day, the trial court noted that the two offenses dismissed pursuant to the plea agreement occurred

on a separate day, February 24, 2012. Accordingly, the burglaries of March 8, 2012, were not

isolated incidents.

{¶ 21} The record demonstrates that the trial court decided to impose three consecutive

four-year prison terms based on Lipker’s criminal history, the economic harm caused by his

offenses, his unfavorable response to previous sanctions, his failure to rehabilitate from drug 9

addiction, and the fact that he was on community control when he committed the offenses. The

trial court’s reasoning is sound, and its decision is not unreasonable. For these reasons, the trial

court’s sentence was not an abuse of discretion.

{¶ 22} Lipker’s sole assignment of error is overruled.

III. Conclusion

{¶ 23} Having overruled Brent M. Lipker’s sole assignment of error, we hereby affirm

the judgment of the trial court.

FAIN, P.J. and FROELICH, J., concur.

Copies mailed to:

Lisa M. Fannin Robert L. Scott Hon. Richard J. O’Neill