State v. Rollins

2012 Ohio 1753

Opinion

[Cite as State v. Rollins, 2012-Ohio-1753.]

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- Case No. CT11-0040 RICKY ROLLINS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2011-0151

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 18, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT L. SMITH ERIC J. ALLEN Assistant Prosecuting Attorney The Law Office of Eric J. Allen, Ltd 27 North Fifth Street 713 South Front Street Zanesville, Ohio 43701 Columbus, Ohio 43206 Muskingum County, Case No. CT11-0040 2

Hoffman, P.J.

{¶1} Defendant-appellant Ricky Rollins appeals the August 17, 2011 Entry

entered by the Muskingum County Court of Common Pleas, which sentenced him to a

twelve (12) month term of incarceration, following the trial court’s acceptance of his

guilty plea. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE

{¶2} On July 6, 2011, Appellant appeared before the trial court, executed a

waiver, and entered a plea of guilty to a bill of information, charging him with one count

of domestic violence with a prior conviction, a felony of the fourth degree. In exchange

for his plea, the State agreed to recommend community control and a drug and alcohol

evaluation with Appellant following all recommendations. The trial court accepted

Appellant’s plea and ordered a pre-sentence investigation.

{¶3} Appellant appeared before the trial court for sentencing on August 15,

2011. Counsel for Appellant addressed the trial court, stating Appellant accepted

responsibility for his actions, was remorseful, and had an alcohol problem which was

the root of the domestic violence. Appellant also addressed the trial court. He stated he

had been married for 25 years, his wife was willing to help him address his problems,

and had three children, one of whom was stilling living at home. The trial court indicated

it had reviewed Appellant’s presentence investigation, which revealed Appellant was 50

years old and had had an alcohol problem since he was 19 years old. The trial court

also noted Appellant had been in and out of treatment since he was 19 years old. The

trial court concluded a treatment facility was not available and ordered Appellant to Muskingum County, Case No. CT11-0040 3

serve a term of incarceration of twelve (12) months. The trial court memorialized the

sentence via Entry filed August 17, 2011.

{¶4} It is from this entry, Appellant appeals, assigning as error:

{¶5} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

MORE THAN THE AGREED UPON SENTENCE OF COMMUNITY CONTROL.”

I

{¶6} In his sole assignment of error, Appellant contends the trial court erred in

ordering him to serve a twelve (12) month term of imprisonment rather than placing him

on community control as agreed to and recommended by the parties.

{¶7} Appellate courts must apply a two-step approach when reviewing a

defendant's sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d

124, ¶ 4. “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.” Id.

{¶8} In State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470, the

Ohio Supreme Court held trial courts “have full discretion to impose a prison sentence

within the statutory range and are no longer required to make findings or give their

reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id.

at ¶ 100, 845 N.E.2d 470. In Kalish, the Supreme Court explained, although Foster

eliminated mandatory judicial fact-finding for upward departures from the minimum, it

left R.C. 2929.11 and 2929.12 intact and thus maintained the requirement that trial Muskingum County, Case No. CT11-0040 4

courts consider them at sentencing. Id. at ¶ 13, 845 N.E.2d 470, citing State v. Mathis,

109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶ 38.

{¶9} The Kalish court explained R.C. 2929.11 and 2929.12 serve as an

“overarching guide for trial judges to consider in fashioning an appropriate sentence”

and that “trial court[s] have full discretion to determine whether the sentence satisfies

the overriding purpose of Ohio's sentencing structure.” Moreover, R.C. 2929.12 permits

a trial court to exercise its discretion in determining whether its sentence complies with

the purposes of sentencing. Id. Assuming the trial court has complied with the

applicable rules and statutes, we review the sentence within the permissible statutory

range for an abuse of discretion. Id.

{¶10} We find Appellant's sentence is not contrary to law. The trial court

expressly stated in its August 17, 2011 Entry it considered the two overriding purposes

of felony sentencing set forth in R.C. 2929.11 and considered the seriousness and

recidivism factors set forth in R.C. 2929.12. Furthermore, Appellant's sentence is within

the permissible statutory ranges.

{¶11} Having satisfied step one, we next consider whether the trial court abused

its discretion. Kalish, at ¶ 4, 19, 896 N.E.2d 124. An abuse of discretion is “more than

an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary

or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140.

{¶12} We find the trial court did not abuse its discretion. The trial court

considered the statutory factors under R.C. 2929.11 and 2929.12. The trial court also Muskingum County, Case No. CT11-0040 5

considered the factual background of the case; the pre-sentence investigation report;

and the plea recommendations.

{¶13} Appellant’s sole assignment of error is overruled.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER

s/ John W. Wise _____________________ HON. JOHN W. WISE Muskingum County, Case No. CT11-0040 6

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RICKY ROLLINS : : Defendant-Appellant : Case No. CT11-0040

For the reasons stated in our accompanying Opinion, the judgment of the

Muskingum County Court of Common Pleas is affirmed. Costs to Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise _____________________ HON. JOHN W. WISE