State v. Loughman

2014 Ohio 1664

Opinion

[Cite as State v. Loughman, 2014-Ohio-1664.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. -vs- : : RYAN LOUGHMAN : Case No. 13-COA-024 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 12-CRI-112

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 16, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAUL T. LANGE MELISSA M. PRENDERGAST 110 Cottage Street 250 East Broad Street Third Floor Suite 1400 Ashland, OH 44805 Columbus, OH 43215 Ashland County, Case No. 13-COA-024 2

Farmer, J.

{¶1} On September 28, 2012, the Ashland County Grand Jury indicted

appellant, Ryan Loughman, on eleven counts of burglary in violation of R.C. 2911.12,

four counts of grand theft in violation of R.C. 2913.02, and one count of attempted

burglary in violation of R.C. 2911.12 and 2923.02. On April 30, 2013, appellant pled

guilty to nine of the burglary counts. The remaining counts were dismissed. By

judgment entry filed July 10, 2013, the trial court sentenced appellant to one year on

each count, to be served consecutively for a total term of nine years in prison. The trial

court also ordered appellant to serve the sentences consecutively to sentences he had

received in Richland County (Case No. 2012 CR 0846H).

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

consideration. Assignments of error are as follows:

I

{¶3} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED

MR. LOUGHMAN TO SERVE HIS ASHLAND COUNTY SENTENCE CONSECUTIVE

TO HIS RICHLAND COUNTY SENTENCE, RESULTING IN A 23-YEAR PRISON

SENTENCE FOR MULTIPLE NON-VIOLENT FELONIES."

II

{¶4} MR. LOUGHMAN'S ATTORNEY WAS INEFFECTIVE BECAUSE SHE

FAILED TO SUBMIT EVIDENCE OF MR. LOUGHMAN'S INDIGENCE TO THE COURT

AT THE TIME OF SENTENCING AND FAILED TO OBJECT TO THE IMPOSITION OF

COURT COSTS. SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED Ashland County, Case No. 13-COA-024 3

STATES CONSTITUTION; SECTIONS 10 AND 16, ARTICLE I OF THE OHIO

CONSTITUTION."

{¶5} Appellant claims the trial court erred in ordering his sentences in this case

(aggregate nine years) to be served consecutively to sentences imposed in Richland

County Case No. 2012 CR 0846H (aggregate fourteen years). We disagree.

{¶6} 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:

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 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, 5 Ohio St.3d 217 (1983).

{¶8} R.C. 2929.11 and 2929.12 require consideration of the purposes and

principles of felony sentencing, as well as the factors of seriousness and recidivism.

See State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855. Ashland County, Case No. 13-COA-024 4

{¶9} R.C. 2929.14 governs prison terms. Subsection (C)(4) states the

following:

(4) 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 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. Ashland County, Case No. 13-COA-024 5

{¶10} Appellant pled guilty to nine counts of burglary, all felonies of the third

degree. Pursuant to R.C. 2914.14(A)(3), appellant faced the maximum of twenty-seven

years in prison. Instead, the trial court sentenced appellant to an aggregate sentence of

nine years in prison, and ordered the sentence to be served consecutively to the

sentence imposed in Richland County. During the sentencing hearing held on June 27,

2013, the trial court noted it had reviewed a presentence investigation report and

various impact statements, set forth the factors in R.C. 2929.11 and 2929.12, and noted

appellant was on community control at the time of committing the offenses and also had

offenses "in Wayne County that have yet to be sentenced***in addition to the Richland

and Ashland County offenses." T. at 3, 19-20. In sentencing appellant to consecutive

sentences, the trial court stated the following (T. at 22-23):

The Court is further finding that in this case, consecutive

sentencings are necessary to protect the public from future crimes, and

consecutive sentencings are not disproportionate to the seriousness of

your conduct, Mr. Loughman, and to the danger that you pose to the

public, because this was quite the extensive crime spree at a time that you

were on Community Control already, and I am finding that consecutive

sentencings are not disproportionate to the seriousness of your conduct

and the danger that you pose to the public, noting that you were taking

firearms, as well as other property, and I am finding that your history of

criminal conduct demonstrates that consecutive sentences are necessary

to protect the public from future crime. It's therefore the Order of the Court Ashland County, Case No. 13-COA-024 6

that the sentencings for Counts I, II, III, IV, V, VI, amended count VIII,

amended Count IX, and Count X, be served consecutively, and that those

sentencings be served consecutive to any prison sentence that you have

received in Richland County.

{¶11} The trial court's judgment entry on sentencing filed July 10, 2013 echoed

these statements.

{¶12} Appellant points out his crime spree was the result of his addiction to

drugs, he cooperated with law enforcement in identifying some of the homes he

burgled, the burglaries were non-violent as he did not carry a weapon, the occupants

were not home most of the time, and he expressed remorse; therefore, he argues "the

trial court had no justifiable reason to impose consecutive service between the two

counties." Appellant's Brief at 4.

{¶13} Addiction is "neither an excuse nor a justification" for a defendant's

criminal actions. State v. Kozel, 11th Dist. Lake No. 2011-L-044, 2011-Ohio-4306, ¶ 12.

Appellant pled guilty to nine counts of burglary under R.C. 2911.12(A)(3). Pursuant to

R.C. 2901.01(A)(9)(a), these offenses are offenses of violence. Although appellant

claimed not to have carried a weapon, he did steal weapons. T. at 15. A victim

explained that after discovering her home had been ransacked, she was "shaking with

fear" and concerned that the perpetrator had discovered her "loaded guns" and was still

on the premises and was going to harm her. T. at 14-15. Appellant had in fact stolen

one of her handguns. T. at 15. Appellant committed theses burglaries while he was

already under community control. T. at 17, 19, 20. Ashland County, Case No. 13-COA-024 7

{¶14} Upon review, we find the trial court fulfilled the statutory requirements, and

the order of consecutive service to the Richland County case was not unreasonable,

arbitrary or unconscionable. The sentence sub judice is not contrary to law.

{¶15} Assignment of Error I is denied.

{¶16} Appellant claims his counsel was ineffective for failing to submit evidence

that he was indigent and failed to object to the imposition of court costs. We disagree.

{¶17} To prevail on a claim of ineffective assistance of counsel, a defendant

must establish that counsel's performance was deficient and as a result, he/she suffered

prejudice and but for the deficiency, the outcome would have been different. State v.

Bradley, 42 Ohio St.3d 136 (1989).

{¶18} Appellant argues his counsel failed to file an affidavit of indigency and had

she done so, "there is a reasonable probability that the court would have waived the

court costs." Appellant's Brief at 6.

{¶19} The Supreme Court of Ohio has clearly determined that a trial court may

assess court costs against an indigent defendant. State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989.

{¶20} On September 14, 2012, appellant filed an affidavit of indigency and

counsel was appointed. The trial court had the benefit of the presentence investigation

which indicated appellant was employed full time at the time of the offenses, but was

currently unemployed. During the sentencing hearing, the trial court notified appellant

that he would have to pay court costs and restitution, finding "you have the future

availability to be employed and pay financial sanctions." T. at 23. From the record, this Ashland County, Case No. 13-COA-024 8

court can reasonably determine that when the trial court sentenced appellant and

ordered him to pay court costs, it took into account his indigent status. Accordingly, we

cannot say "there exists a reasonable probability that, were it not for counsel's errors,

the result of the trial would have been different." Bradley at paragraph three of the

syllabus.

{¶21} Assignment of Error II is denied.

{¶22} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.

SGF/sg 403