State v. Sandy

2013 Ohio 1959

• Court: Ohio Court of Appeals
• Decided: May 10, 2013
• Docket: 12-COA-028
• Status: Published

Opinion

[Cite as State v. Sandy, 2013-Ohio-1959.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12-COA-028 MICHAEL L. SANDY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case Nos. 10-CRI-098 and 12-CRI-043

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 10, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAMONA FRANCESCONI ROGERS MATTHEW MALONE PROSECUTING ATTORNEY 11-1/2 East Second Street PAUL T. LANGE Ashland, Ohio 44805 ASSISTANT PROSECUTOR 110 Cottage Street, 3rd Floor Ashland, Ohio 44805 Ashland County, Case No. 12-COA-028 2

Wise, J.

{¶1} Appellant Michael L. Sandy appeals from his sentences rendered by the

Court of Common Pleas, Ashland County, for the felony offenses of tampering with

evidence and receiving stolen property. The relevant procedural facts leading to this

appeal are as follows.

Case No. 10-CRI-098

{¶2} On February 8, 2011, the Ashland County Court of Common Pleas

sentenced appellant to 180 days in jail (with potential for CBCF admission) and five

years of community control, following his convictions on two counts of receiving stolen

property, both fifth-degree felonies. On September 28, 2011, we affirmed appellant’s

convictions and sentence. See State v. Sandy, Ashland App.No. 11–COA–004, 2011-

Ohio-5088.

{¶3} On February 22, 2012, Probation Officer Kimberly Marcelli filed an

“Alleged Community Control Violation(s) Complaint” against appellant, alleging that he

had violated the terms and conditions of his community control set forth by: (1) having in

his possession and/or control stolen property; (2) having in his possession and/or

control a firearm; (3) having in his possession and/or control marijuana and drug

paraphernalia, as well as testing positive for marijuana and opiates; and (4) associating

with an individual with a criminal record without his supervising officer's permission.

{¶4} On March 12, 2012, appellant appeared with counsel before the trial court

and entered into a plea agreement, admitting to the third and fourth allegations as set

forth above. Ashland County, Case No. 12-COA-028 3

Case No. 12-CRI-043

{¶5} Prior to any imposition of sanctions for the aforesaid community control

matter in case 10-CRI-098, appellant was charged by bill of information under case

number 12-CRI-043 with one count of tampering with evidence (a felony of the third

degree) and one count of receiving stolen property (a felony of the fifth degree).

{¶6} On April 20, 2012, appellant appeared with counsel before the trial court

and entered into a plea agreement. As part of the agreement, the State agreed not to

pursue any further charges with respect to the February 2012 investigation into

appellant’s community control violations.

Sentence

{¶7} Thereafter, the trial court sentenced appellant to the following in the two

cases:

{¶8} (1) Count One (in case number 10-CRI-098), receiving stolen property,

twelve (12) months in prison;

{¶9} (2) Count Two (in case number 10-CRI-098), receiving stolen property,

{¶10} (3) Count One (in case number 12-CRI-043), tampering with evidence,

thirty-six (36) months in prison and a fine of $500.00;

{¶11} (4) Count Two (in case number 12-CRI-043), receiving stolen property,

twelve (12) months in prison and a fine of $500.00.

{¶12} See Judgment Entries of June 22, 2012. Ashland County, Case No. 12-COA-028 4

{¶13} All of the aforesaid were to be served consecutively, for an aggregate

prison term of seventy-two (72) months. According to the transcript of the hearing, the

trial court further ordered that appellant receive credit for 385 jail days. Tr. at 14.

{¶14} On July 20, 2012, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

{¶15} “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED MAXIMUM, CONSECUTIVE SENTENCES UPON

DEFENDANT/APPELLANT PURSUANT TO OHIO REVISED CODE SECTION

2929.14(C)(4); SAID MAXIMUM, CONSECUTIVE SENTENCES EXCEEDED THE

MAXIMUM PRISON TERM PURSUANT TO OHIO REVISED CODE SECTION

2929.14(A)(3)(a), AND WERE NOT CONSISTENT WITH THE DIRECTIVES

ESTABLISHED IN OHIO REVISED CODE SECTION 2929.14(C)(4) AND/OR WERE

CLEARLY AND CONVINCINGLY CONTRARY TO LAW.

{¶16} “II. THE SENTENCES IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED

CODE SECTION 2929.13(A).”

I.

{¶17} In his First Assignment of Error, appellant challenges his maximum,

consecutive sentences for tampering with evidence and receiving stolen property.

{¶18} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. The first step is to “examine the sentencing court's Ashland County, Case No. 12-COA-028 5

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this

first step is satisfied, the second step requires the trial court's decision be reviewed

under an abuse-of-discretion standard. Id. Furthermore, “* * * the right to appeal a

sentence under R.C. 2953.08(C) does not mean that consecutive sentences for multiple

convictions may not exceed the maximum sentence allowed for the most serious

conviction.” See State v. Beverly, Delaware App.No. 03 CAA 02011, 2003–Ohio–6777,

¶ 17, quoting State v. Haines (Oct. 29, 1998), Franklin App.No. 98AP-195. But we have

recognized that “[w]here the record lacks sufficient data to justify the sentence, the court

may well abuse its discretion by imposing that sentence without a suitable explanation.”

State v. Firouzmandi, Licking App.No. 2006–CA–41, 2006–Ohio–5823, ¶ 52.

R.C. 2929.11 and 2929.12 Considerations

{¶19} 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, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38. Although

the Ohio Supreme Court’s Foster decision [109 Ohio St.3d 1, 2006–Ohio–856]

eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and 2929.12. See

State v. Hobby, Ashland App.No. 11 COA 41, 2012–Ohio–2420, ¶ 25, citing State v.

Kalish, supra, at ¶ 13. Thus, “in exercising its discretion, a court is merely required to

‘consider’ the purposes of sentencing in R.C. 2929.11 and the statutory * * * factors set

forth in R.C. 2929.12.” State v. Sutton, Cuyahoga App.No. 97132, 2012–Ohio–1054, ¶

11, citing State v. Lloyd, Lake App.No. 2006–L–185, 2007–Ohio–3013, ¶ 44. The

findings of the trial court in regard to R.C. 2929.11 and 2929.12 need not be in the Ashland County, Case No. 12-COA-028 6

sentencing transcript if the findings are contained in the journal entry. See State v.

O’Donnell, Summit App.No. 23525, 2007-Ohio-1943, ¶ 7 (additional citations omitted).

{¶20} Although not required to do so, the trial court in the case sub judice stated

the following on the record with respect to the general sentencing guidelines:

{¶21} “THE COURT: With regard to Case 12-CRI-043, the Court needs to

advice [sic] you that I have to comply with the purposes and principals [sic] of Ohio

felony statues [sic] when imposing a sentence initially, and the overriding purposes that

I need to follow are to punish the offender and protect the public from future crimes by

the offender and others using the minimum sanctions that the Court determines

accomplish those purposes without imposing an unnecessary burden on State or Local

Government resources.

{¶22} “The Court must also consider the need for incapacitation and deterrence,

rehabilitation or restitution, [the] sentence should also be commensurate with and not

demeaning to the seriousness of an offender's conduct and impact on any victims, and

it should be consistent with sentences for similar crimes by similar offenders.

{¶23} “* * * I have in fact considered and weighed all of the factors that the Court

must consider and weigh when determining a sentence, and like I said, I don't see

where there is any deterrence factors that Community Control offers, and I am further

finding that the Court is not required to give a Community Control sentence on Count II,

receiving stolen property F-5 charge, because you served prior prison terms, and I

believe and find that one or more of the factors set forth with regard to favoring a prison

sentence for F-4, F-5 sentence exist in this case, and prison sanctions in 12-CRI-043 is Ashland County, Case No. 12-COA-028 7

more consistent with the purposes and principals [sic] of the sentencing statute in light

of the seriousness and recidivism factors.”

{¶24} Tr. June 18, 2012, at 11-13.

{¶25} Upon review of the sentencing entries and the pertinent transcripts, we

find the trial court properly considered the purposes and principles of felony sentencing,

and the factors of seriousness and recidivism.

Maximum Sentence Issue

{¶26} Appellant next argues that the court erred in sentencing him to maximum

sentences on the three offenses of receiving stolen property, all felonies of the fifth

degree, and the offense of tampering with evidence, a felony of the third degree.

{¶27} Subsequent to the Ohio Supreme Court's Foster decision, “[t]he decision

to impose the maximum sentence is simply part of the trial court's overall discretion in

issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.”

State v. Parsons, Belmont App.No. 12 BE 11, 2013-Ohio-1281, ¶ 14.

{¶28} In the case sub judice, the sentences at issue are all within the statutory

ranges for third and fifth-degree felonies. See R.C. 2929.14(A)(3) and (A)(5).1 Upon

review, we hold the maximum sentences in this matter are not unreasonable, arbitrary

or unconscionable.

Consecutive Sentence Issue

{¶29} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The General Assembly has thus expressed its intent to revive the

1 Current R.C. 2929.14(A)(3)(b) has reduced the maximum prison term for many third- degree felonies from 5 years to 36 months. Ashland County, Case No. 12-COA-028 8

statutory fact-finding provisions pertaining to the imposition of consecutive sentences

that were effective pre-Foster. See State v. Wells, Cuyahoga App.No. 98428, 2013-

Ohio-1179, ¶ 11. These revisions to the felony sentencing statutes now require a trial

court to make specific findings when imposing consecutive sentences. Nonetheless,

“[a]lthough H.B. 86 requires the trial court to make findings before imposing a

consecutive sentence, it does not require the trial court to give its reasons for imposing

the sentence.” State v. Bentley, Marion App.No. 9–12–31, 2013-Ohio-852, ¶ 12, citing

State v. Frasca, Trumbull App.No. 2011–T–0108, 2012–Ohio–3746, ¶ 57.

{¶30} R.C. 2929.14(C)(4) provides, in relevant part:

{¶31} “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:

{¶32} “(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.

{¶33} “(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 Ashland County, Case No. 12-COA-028 9

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

{¶34} “(c) The offender's history of criminal conduct demonstrates that

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

offender.” (Emphases added).

{¶35} In the case sub judice, the trial court set forth the following findings in its

judgment entries with respect to appellant's consecutive sentences:

{¶36} “Furthermore, the Court finds that consecutive sentences are necessary to

protect the public from future crime, that consecutive sentences are not disproportionate

to the seriousness of the Defendant's conduct and [or] to the danger the Defendant

poses to the public, and that due to the Defendant's history of criminal conduct [,]

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

Defendant.”

{¶37} Judgment Entry - Sanctioning, Case No. 10-CRI-098, June 22, 2012, at 2;

Judgment Entry- Sentencing, Case No. 12-CRI-043, June 22, 2012, at 2.

{¶38} The trial court made similar findings on the record at the time of

sentencing. See Sentencing Tr. June 18, 2012, at 13. Appellant presently maintains that

the trial court simply recited “boilerplate” language in reaching it decision. He also

emphasizes that his evidence tampering offense did not entail the actual destruction of

primary evidence. However, the transcript reveals that the trial court reviewed

appellant’s presentence investigation report in the record before us (any specifics of

which are not brought out in appellant’s brief) and noted that appellant’s criminal history

began when he was still a juvenile, followed by “a number of prison terms in the past.” Ashland County, Case No. 12-COA-028 10

Tr. at 9. The court even advised appellant that “ *** in looking at your history, I could not

figure out for the life of me why [a different common pleas judge] gave you a Community

Control Sanction in 10-CRI-098” but that the sentencing entry at that time indicated “that

it was your last opportunity to attempt to deal with your issues ***.” Tr. at 10. The court

stated that appellant seemed to be saying he was turning over a new leaf, “but the

criminal history and the opportunities that you had to address issues would indicate to

me otherwise.” Tr. at 11.

{¶39} Upon review, we find the trial court properly considered the general

sentencing guidance factors, and we hold the trial court's consecutive, maximum

sentences in this matter are not unreasonable, arbitrary or unconscionable. We further

hold said sentences are not contrary to law.

{¶40} Appellant's First Assignment of Error is overruled.

II.

{¶41} In his Second Assignment of Error, appellant argues the imposition of his

prison sentence in this case imposes an unnecessary burden on state resources. We

disagree.

{¶42} In State v. Shull, Ashland App.No. 2008-COA-036, 2009-Ohio-3105, we

reviewed a similar claim. We found that although the burden on state resources may be

a relevant sentencing criterion as set forth in R.C. 2929.13, Ohio law “does not require

trial courts to elevate resource conservation above the seriousness and recidivism

factors.” Shull at ¶ 22, quoting State v. Ober (October 10, 1997), Greene App. No.

97CA0019. Ashland County, Case No. 12-COA-028 11

{¶43} Appellant utilizes information from a website, apparently not presented to

the trial court, to allege herein that his incarceration will cost the taxpayers $79,283.00.

However, as discussed previously, appellant has not responded in the past to other

forms of rehabilitation, and, as the State notes, appellant’s recent actions suggest a

tendency to extend his danger to the public by involving a family member in his theft-

related activities. Upon review, we find appellant has not demonstrated his sentence is

an unnecessary burden on state resources.

{¶44} Appellant's Second Assignment of Error is overruled.

{¶45} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Ashland County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

___________________________________

JUDGES JWW/d 0423 Ashland County, Case No. 12-COA-028 12

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

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MICHAEL L. SANDY : : Defendant-Appellant : Case No. 12-COA-028

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed.

Costs assessed to appellant.

JUDGES