State v. Powers

2014 Ohio 1662

• Court: Ohio Court of Appeals
• Decided: April 18, 2014
• Docket: 2013-CA-45, 2013-CA-46
• Status: Published

Opinion

[Cite as State v. Powers, 2014-Ohio-1662.]

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

STATE OF OHIO

Plaintiff-Appellee

v.

JOSHUA L. POWERS

Defendant-Appellant

Appellate Case Nos. 2013-CA-45 and 2013-CA-46

Trial Court Case No. 2013-CR-87 and 2013-CR-244

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

OPINION

Rendered on the 18th day of April, 2014.

...........

JENNIFER E. GELLER, Atty. Reg. No. 0088855, Champaign County Assistant Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

BRIAN D. BRENNAMAN, Atty. Reg. No. 0088988, 1616 Turner Road, Xenia, Ohio 45385 Attorney for Defendant-Appellant

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

WELBAUM, J. 2

{¶ 1} Defendant-appellant, Joshua Lee Powers, appeals from his prison sentence

received in the Champaign County Court of Common Pleas following his guilty plea to one count

of breaking and entering and one count of failing to appear. For the reasons outlined below, the

judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On March 7, 2013, Joshua Lee Powers was indicted on one count of breaking and

entering in violation of R.C. 2911.13(A), a felony of the fifth degree, and one count of petty theft

in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. The charges arose from

Powers breaking into an unoccupied residence located at 690 East Court Street in Urbana, Ohio.

During the break-in, Powers cut and removed metal wire from the residence and later sold the

wire to PSC Metals in Springfield, Ohio.

{¶ 3} On March 20, 2013, Powers failed to appear at his initial arraignment hearing,

and the trial court issued a capias order for his arrest. Following his arrest, the trial court held

another arraignment hearing, which Powers attended in the custody of the Champaign County

Sheriff. At the arraignment hearing, the trial court released Powers on a personal recognizance

bond. Thereafter, Powers attended a final pretrial conference on May 15, 2013; however, the

trial court rescheduled the conference for May 22, 2013, because Powers was not dressed in

proper courtroom attire. Powers subsequently failed to attend the rescheduled final pretrial

conference, and the trial court once again issued a capias order for his arrest.

{¶ 4} After his arrest, Powers attended two more pretrial conferences and later pled

guilty to the breaking and entering charge. In exchange for his plea, the State dismissed the 3

petty theft charge and agreed not to pursue a charge for his failure to appear at court. The trial

court then released Powers on another personal recognizance bond and scheduled a sentencing

hearing for July 15, 2013. Powers, however, failed to appear at the sentencing hearing. As a

result, he was indicted in a separate case on one count of failing to appear as required by

recognizance in violation of R.C. 2937.29 and R.C. 2937.99(A), a felony of the fourth degree.

On August 20, 2013, Powers pled guilty to this charge, and the trial court proceeded with

sentencing for both of his offenses.

{¶ 5} During the sentencing hearing, Powers claimed that all of his offenses were

connected to his heroin addiction. Powers discussed the nature and effect of his addiction with

the court at length. After hearing from Powers and the State, the trial court sentenced Powers to

10 months in prison for the breaking and entering offense and 12 months in prison for the failure

to appear offense. The two offenses were then ordered to run consecutively for a total prison

term of 22 months. Powers was also ordered to pay restitution in the amount of $1,374.

{¶ 6} Powers now appeals from the trial court’s sentencing decision, raising two

assignments of error.

Assignments of Error

{¶ 7} For purposes of convenience, we will address Powers’s First and Second

Assignments of Error together. They are as follows:

I. THE SENTENCE OF THE TRIAL COURT IS UNDULY HARSH AND

NOT SUPPORTED BY THE RECORD AND THEREFORE

CONSTITUTES AN ABUSE OF THE TRIAL COURT’S DISCRETION. 4

II. THE SENTENCE OF THE TRIAL [COURT] IS CONTRARY TO LAW

AS THE COURT DID NOT REASONABLY CONSIDER THE

CONCEPT OF REHABILITATION PURSUANT TO R.C. 2929.11.

{¶ 8} Under these assignments of error, Powers argues that the trial court’s imposition

of consecutive sentences was an abuse of discretion, because the record demonstrates that

consecutive sentences are disproportionate to the seriousness of his conduct. Powers also argues

that the sentence is contrary to law because the trial court failed to consider his need for

rehabilitation as required by R.C. 2929.11.

Standard of Review

{¶ 9} This court recently adopted R.C. 2953.08(G)(2) as the appellate standard of

review for all felony sentences, including consecutive sentences. State v. Rodeffer,

2013-Ohio-5759, ___N.E.2d___, ¶ 29 (2d Dist.); State v. Mooty, 2d Dist. Montgomery No.

25669, 2014-Ohio-733, ¶ 68. R.C. 2953.08(G)(2) states, in pertinent part, that:

The appellate court may increase, reduce, or otherwise modify a sentence that is

appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court’s standard for review

is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds

either of the following:

(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of 5

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law. (Emphasis added.) R.C.

2953.08(G)(2).

{¶ 10} Additionally, we observed in Rodeffer that:

“the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the

negative. It does not say that the trial judge must have clear and convincing

evidence to support its findings. Instead, it is the court of appeals that must

clearly and convincingly find that the record does not support the court’s

findings.” * * * “In other words, the restriction is on the appellate court, not the

trial judge. This is an extremely deferential standard of review.” Rodeffer at ¶

31, quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).

The Record Supports the Trial Court’s Consecutive

Sentence Findings Under R.C. 2929.14(C)(4)

{¶ 11} As noted earlier, Powers argues that the trial court’s imposition of consecutive

sentences was an abuse of discretion, because the resulting prison term is disproportionate to the

seriousness of his conduct.

{¶ 12} The imposition of consecutive sentences is governed by R.C. 2929.14(C)(4).

Under this statute, a sentencing court must make certain findings before imposing consecutive

sentences. Specifically, a trial court may impose consecutive sentences if it determines that: (1)

“consecutive service is necessary to protect the public from future crime or to punish the 6

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) one or more of the following

three findings are satisfied:

(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)(a)-(c).

While the trial court must make the foregoing findings before imposing consecutive sentences,

the court is not required to state the reasons for its findings. State v. Wells, 2d Dist. Champaign

No. 2012-CA-12, 2012-Ohio-5529, ¶ 12-16.

{¶ 13} In the present case, the trial court stated the following at Powers’s sentencing

hearing:

In imposing consecutive sentences, the Court finds that consecutive sentencing is

necessary to protect the public from future crime or to punish the Defendant. 7

That they are not disproportionate to the seriousness of the conduct and the danger

Defendant poses on the public. Court finds that Defendant committed one or

more of the multiple offenses while he was awaiting trial or sentencing. And that

the Defendant’s history of criminal conduct demonstrates that consecutive

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

Sentencing Trans. (Aug. 20, 2013), p. 52, ln. 8-18.

Based on the foregoing statement, the record clearly establishes that the trial court made all the

required findings under R.C. 2929.14(C)(4) before imposing consecutive sentences. As a further

matter, we do not clearly and convincingly find that the record does not support the trial court’s

finding that consecutive sentences are not disproportionate to the seriousness of Powers’s

conduct. The record establishes that Powers broke into another’s home, repeatedly failed to

appear at court, and repeatedly violated his bond conditions. This conduct exhibits a severe lack

of respect for others, including the court, and shows no responsibility or remorse for his actions.

{¶ 14} We note that in his appellate brief, Powers does not dispute that the trial court

made the required findings under R.C. 2929.14(C)(4), but rather claims that the trial court’s

proportionality finding was an abuse of discretion. However, “[t]he appellate court’s standard

for review is not whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2).

“The standard [under R.C. 2953.08(G)(2)] is more deferential to the trial court's determination

than an abuse of discretion.” State v. Polhamus, 2d Dist. Miami No. 2013-CA-3,

2014-Ohio-145, ¶ 36.

{¶ 15} Nevertheless, even under an abuse of discretion review, we find no error in the

trial court’s proportionality assessment. “A trial court has broad discretion in sentencing a 8

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. “A trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio

St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. Based on the facts of record, we find that the

trial court’s imposition of consecutive sentences was reasonable and not an abuse of discretion.

Powers’s Prison Sentence Is Not

Otherwise Contrary to Law

{¶ 16} Next, Powers argues that his prison sentence is contrary to law because the trial

court failed to consider his need for rehabilitation as required by R.C. 2929.11.

{¶ 17} “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an issue

or factor which a statute requires a court to consider.” (Citation omitted.) State v. Lofton, 2d

Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. “[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.” Rodeffer, 2013-Ohio-5759, __N.E.2d__ at ¶ 32, citing State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18. Under R.C. 2929.11, “the need for

* * * rehabilitating the offender” is one of various factors a sentencing court must consider when

sentencing an offender for a felony.

{¶ 18} In this case, Powers’s 10-month prison sentence for breaking and entering, as

well as his 12-month prison sentence for failing to appear, are within the prescribed statutory 9

range for fourth and fifth-degree felonies. See R.C. 2929.14(A)(4) and (5). Additionally, the

trial court expressly stated at the sentencing hearing and in its entry of conviction and sentence

that it had considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the

sentencing factors in R.C. 2929.12. Accordingly, the record indicates that the trial court made

all the required considerations, including the need for rehabilitating the offender.

{¶ 19} The trial court’s consideration of the need to rehabilitate Powers is further

evidenced by the fact that Powers and the trial court had a long discussion at his sentencing

hearing about the extent of his heroin addiction. After Powers requested treatment for his

addiction, the trial court stated:

I think you said that you have the same problems as when I went back home from

prison. I need help if you’re willing to give it. And what I’m trying to point out

to you is that there is a period of time in June where we were willing to assist you.

The problem is that not only do you not appear the second time for one of our

hearings, but you went out and allegedly committed additional offenses while

breaking bond conditions. Sentencing Trans. (Aug. 20, 2013), p. 37, ln. 4-12.

The trial court also stated that:

I appreciate the physical craving piece of it. I appreciate what you’re saying.

But you’re telling me that you need help if I’m willing to give it to you. And I’m

giving you three instances in the span of three weeks in which either your attorney

or the Court has helped you and you’ve turned your back on us. Id. at 40, ln.

16-22.

{¶ 20} Based on the record, we do not find that the trial court failed to consider the need 10

for rehabilitation as required by R.C. 2929.11. Therefore, because Powers’s sentences are within

the statutory range for fourth and fifth-degree felonies, and because the trial court considered the

purposes and principles of sentencing set forth in R.C. 2929.11 and the factors in 2929.12, we

find that Powers’s sentence is not contrary to law.

{¶ 21} For the foregoing reasons, Powers’s First and Second Assignments of Error are

overruled.

Conclusion

{¶ 22} Having overruled all of the assignments of error, the judgment of the trial court is

affirmed.

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

Copies mailed to:

Jennifer E. Geller Brian D. Brennaman Hon. Nick A. Selvaggio