State v. Martin

2011 Ohio 4670

Opinion

[Cite as State v. Martin, 2011-Ohio-4670.]

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

STATE OF OHIO : : Appellate Case No. 24398 Plaintiff-Appellee : : Trial Court Case No. 10-CR-2014 v. : : (Criminal Appeal from AMBER L. MARTIN : (Common Pleas Court) : Defendant-Appellant : :

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OPINION

Rendered on the 16th day of September, 2011.

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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorneys for Plaintiff-Appellee

RICHARD B. REILING, Atty. #0066118, 5045 North Main Street, Suite 320-D, Dayton, Ohio 45415 Attorney for Defendant-Appellant

HALL, J.

{¶ 1} Amber Martin appeals from her conviction and sentence on one count of

felonious assault in violation of R.C. 2903.11.

{¶ 2} In her sole assignment of error, Martin contends the trial court erred in 2

imposing a sentence that was inconsistent with and disproportionate to the sentence a

co-defendant received.

{¶ 3} The record reflects that Martin and co-defendant Carolyn Carr were charged

with felonious assault and disrupting public services for their role in a fight that resulted in the

victim suffering a broken jaw and cheek bone. Martin and Carr pled guilty to felonious assault

in separate cases, and the prosecutor nolled the other charge. The trial court sentenced Carr to

community control. It later sentenced Martin to two years in prison. At Martin’s sentencing

hearing, the trial court stated that the prison sentence was being imposed for reasons detailed

in a pre-sentence investigation report.

{¶ 4} On appeal, Martin contends “the trial court did not properly engage in an

evaluation of the proportionality of [her] case to those who have been similarly convicted and

sentenced.” More specifically, she claims the trial court “did not consider the punishment

imposed upon the co-defendant in this case.” Because the record does not reflect which

co-defendant bore primary responsibility for the victim’s injuries, Martin argues that “there

seems to be no reason to sentence [her] to prison while sentencing Carr to community control

sanctions.”

{¶ 5} Upon review, we find Martin’s argument to be without merit. “With respect to

proportionality and consistency in felony sentencing, R.C. 2929.11(B) states that sentence

shall be ‘commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.’ ” State v. Cline, Champaign App. No. 07CA02,

2008-Ohio-1866, ¶106. (Emphasis added.) “ ‘Consistency requires a trial court to weigh the 3

same factors for each defendant, which ultimately results in an outcome that is rational and

predictable.’ ” State v. Spradling, Montgomery App. No. 20960, 2005-Ohio-6683, ¶6,

quoting State v. Coburn, Adams App. No. 03CA774, 2004-Ohio-2997. Consistency does not

require uniformity. Id.

{¶ 6} Given that the record does not indicate which, if either, co-defendant inflicted

the most harm on the victim, we agree with Martin that she and Carr committed similar

crimes. Indeed, they both pled guilty to felonious assault for engaging in the same fight with

the same victim. Martin’s sentencing argument fails, however, because the record supports a

finding that she and Carr are not similar offenders. Martin’s pre-sentence investigation report

indicates that, at the time of the current offense, she already was on community control due to

a 2007 conviction for complicity to commit abduction. Unlike Martin, Carr’s pre-sentence

investigation report reflects that she had no prior felony record and was not on community

control when she committed the current offense. Therefore, the trial court reasonably could

have concluded that the two women were not similarly situated offenders when it sentenced

Martin to prison and Carr to community control.

{¶ 7} Based on the reasoning set forth above, we overrule Martin’s assignment of

error and affirm the judgment of the Montgomery County Common Pleas Court.

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FAIN and FROELICH, JJ., concur.

Copies mailed to:

Mathias H. Heck, Jr. Andrew T. French Richard B. Reiling Hon. Mary L. Wiseman