State v. Taylor

2018 Ohio 827

Opinion

[Cite as State v. Taylor, 2018-Ohio-827.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. CT2017-0082 RYAN L. TAYLOR : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court, Case No. CRB 1700786

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 2, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX FREDERICK A. SEALOVER PROSECUTING ATTORNEY 45 N. FOURTH STREET BY: GERALD V. ANDERSON II BOX 2910 ASSISTANT PROSECUTOR ZANESVILLE, OH 43702 27 NORTH FIFTH ST. BOX 189 ZANESVILLE, OH 43702-0189 [Cite as State v. Taylor, 2018-Ohio-827.]

Gwin, P.J.

{¶1} Appellant Ryan L. Taylor appeals from his conviction in the Muskingum

County Court on one count of petty theft. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On September 21, 2017, appellant was charged by criminal complaint with

a violation of R.C. 2913.02(A), theft, a misdemeanor of the first degree. The complaint

alleged appellant did, with purpose to deprive the owner, DJ’s Drive-Thru, of property,

two cases of beer, knowingly obtain or exert control over property without consent of DJ’s;

the property having a value less than $1,000.

{¶3} In the affidavit in support of probable cause for arrest, the deputy averred

that on July 26, 2017, appellant and his friend went to DJ’s Drive-Thru multiple times

throughout the day. At 9:00 p.m. on that day, appellant stole two cases of beer and took

off running. The deputy furthered averred that the clerk at the store identified appellant

in a photo lineup as the individual who took the two cases of beer, that appellant’s friend

told officers he observed appellant running out of the back of the drive-through with two

cases of beer, and that the officers caught appellant with cans of beer.

{¶4} Appellant appeared pro se at his arraignment on September 28, 2017.

Appellant confirmed he understood the charge and the possible penalties; stated he

understood his constitutional rights; stated he had no questions about his rights or his

plea; and waived the explanation of circumstances read aloud. Appellant entered a plea

of no contest to the theft charge, a misdemeanor of the first degree. The trial court

reviewed the statement by the deputy, and found the facts sufficient for a guilty finding. Muskingum County, Case No. CT2017-0082 3

{¶5} The trial court proceeded to sentencing. Appellant stated he had nothing to

say prior to sentencing. The trial court then reviewed appellant’s criminal history, stating

It looks like you’ve got two hit-skips and leaving the scene of an accident;

multiple driving under suspensions; a drug abuse charge in 2002; disorderly

conduct in 2005; felony theft, 17 months, from 2006; theft conviction from

2007; a receiving stolen property, motor vehicle conviction, felony four,

2009; a robbery conviction, felony three, 2009; aggravated robbery reduced

to a robbery in 2012; also in 2012, convictions for robbery, felony three’s,

another conviction for robbery on two counts in 2012.

{¶6} When the trial court asked appellant if there were two separate robberies in

2009, appellant responded, “Yes sir.” The trial court stated, “given your record, Mr.

Taylor, I’m going to sentence you to the maximum sentence of 180 days in jail.” The trial

court issued a sentencing entry on September 28, 2017.

{¶7} Appellant appeals and assigns the following as error:

{¶8} “I. THE TRIAL COURT ERRED BY IMPOSING UPON DEFENDANT-

APPELLANT A MAXIMUM DIRECT JAIL SENTENCE, CONTRARY TO LAW.”

{¶9} Appellant argues the trial court erred in sentencing him to a maximum jail

term. We disagree.

{¶10} Appellant was convicted of a misdemeanor of the first degree, for which the

maximum jail term is 180 days. R.C. 2929.24(A)(1). The sentence imposed in this case

is thus within the statutory range for a misdemeanor of the first degree.

{¶11} Misdemeanor sentences are reviewed for an abuse of discretion. State v.

Thadur, 5th Dist. Ashland No. 15 COA 018, 2016-Ohio-417, appeal not allowed, 145 Ohio Muskingum County, Case No. CT2017-0082 4

St.3d 1473, 2016-Ohio-3028, 49 N.E.3d 1314. In order to find an abuse of discretion, the

reviewing court must determine that 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, 450 N.E.2d 1140 (1983).

{¶12} When sentencing for a misdemeanor offense, a trial court is guided by the

“overriding purposes of misdemeanor sentencing,” which are to protect the public from

future crime by the offender and others and to punish the offender. R.C. 2929.21(A);

State v. Belt, 5th Dist. Muskingum No. CT2016-0012, 2016-Ohio-8069. “To achieve those

purposes, the sentencing court [must] consider the impact of the offense upon the victim

and the need for changing the offender’s behavior, rehabilitating the offender, and making

restitution to the victim of the offense, the public, or the victim and the public.” Id. The

sentence imposed must be “reasonably calculated to achieve the two overriding purposes

of misdemeanor sentencing * * * 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 offenses committed by similar offenders.” R.C. 2929.21(B).

{¶13} With regard to the “overriding purposes” of misdemeanor sentencing, the

record before us demonstrates the sentence was designed to punish appellant and, since

appellant had been sanctioned multiple times before, the sentence was necessary to

protect the public from future crime. State v. Ecenbarger, 5th Dist. Stark No. 2016 CA

00133, 2017-Ohio-165.

{¶14} R.C. 2929.22 governs sentencing on misdemeanors and states that, in

determining the appropriate sentence for a misdemeanor, the court shall consider all of

the following factors: Muskingum County, Case No. CT2017-0082 5

{¶15} (a) The nature and circumstances of the offense or offenses;

(b) Whether the circumstances regarding the offender and the

offense or offenses indicate that the offender has a history of persistent

criminal activity and that the offender’s character and condition reveal a

substantial risk that the offender will commit another offense;

(c) Whether the circumstances regarding the offender and the

offense indicate that the offender’s history, character, and condition reveal

a substantial risk that the offender will be a danger to others and that the

offender’s conduct has been characterized by a pattern of repetitive,

compulsive, or aggressive behavior with heedless indifference to the

consequences;

(d) Whether the victim’s youth, age, disability, or other factor made

the victim particularly vulnerable to the offense or made the impact of the

offense more serious;

(e) Whether the offender is likely to commit future crimes, in general,

in addition to the circumstances described in divisions (B)(1)(b) and (c) of

this section;

(f) Whether the offender has an emotional, mental, or physical

condition that is traceable to the offender’s service in the armed forces of

the United States and that was a contributing factor in the offender’s

commission of the offense or offenses;

(g) The offender’s military service record. Muskingum County, Case No. CT2017-0082 6

{¶16} R.C. 2929.22(B)(2) provides that, when determining the appropriate

sentence for a misdemeanor, in addition to considering the factors listed above, “the court

may consider any other factors that are relevant to achieving the purposes and principles

of sentencing set forth in section 2929.21 of the Revised Code.” Courts have consistently

held that evidence of other crimes may be considered at sentencing. State v. Cooey, 46

Ohio St.3d 20, 544 N.E.2d 895 (1989).

{¶17} Appellant argues the sentence is too harsh because no reasonable

observer could maintain the criminal activity attributed to appellant, the theft of two cases

of beer, was the worst form of the offense pursuant to R.C. 2929.22(C). Further, that the

longest jail term was not necessary to deter appellant from committing a future crime and

he accepted prompt responsibility by pleading no contest. R.C. 2929.22(C) states,

Before imposing a jail term as a sentence for a misdemeanor, a court shall

consider the appropriateness of imposing a community control sanction or

a combination of community control sanctions under sections 2929.25,

2929.26, 2929.27, and 2929.28 of the Revised Code. A court may impose

the longest jail term authorized under section 2929.24 of the Revised Code

only upon offenders who commit the worst forms of the offense or upon

offenders whose conduct and response to prior sanctions for prior offenses

demonstrate that the imposition of the longest jail term is necessary to deter

the offender from committing a future crime.

{¶18} While the statue provides a court may impose the longest jail term

authorized on offenders who commit the “worst forms of the offense,” the statute also

provides, in the disjunctive from the “worst forms” language, that a court may impose the Muskingum County, Case No. CT2017-0082 7

longest jail term authorized upon offenders “whose conduct and response to prior

sanctions for prior offenses demonstrate that the imposition of the longest jail term is

necessary to deter the offender from committing a future crime.” In this case the trial

court did not base its determination of the maximum sentence based upon the “worst

form” of the offense, but based its determination upon appellant’s conduct and response

to his prior criminal convictions and sanctions and the necessity to deter appellant from

committing a future crime, given his lengthy criminal history dating back to 2002. This

lengthy criminal history includes multiple convictions and sanctions for offenses similar to

this offense, including previous convictions and sanctions for misdemeanor thefts and

felony robberies.

{¶19} Appellant also contends the trial court erred because it did not seem to

consider the sentencing factors in R.C. 2929.22(B). However, there is no requirement

that a trial court specifically state its reasons on the record in sentencing on misdemeanor

offenses. State v. Belt, 5th Dist. Muskingum No. CT2016-0012, 2016-Ohio-8069; State

v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-Ohio-1046. Even where a record is

silent, we must presume the trial court considered the proper factors enumerated in R.C.

2929.22. State v. Belt, 5th Dist. Muskingum No. CT2016-0012, 2016-Ohio-8069; State

v. Kandel, 5th Dist. Ashland No. 04COA011, 2004-Ohio-6987.

{¶20} Further, the trial court stated its sentence was premised upon appellant’s

criminal record. The record establishes that appellant has multiple previous convictions,

including theft convictions in 2006, 2007, and 2012, and robbery convictions in 2009 and

2012. Pursuant to R.C. 2929.22(B)(1), factors (b), (c), and (e) pertain to appellant’s

lengthy criminal record and the failure to indicate any steps towards rehabilitation. Muskingum County, Case No. CT2017-0082 8

Accordingly, we find the trial court sufficiently explained its reasons for imposing a

maximum sentence in appellant’s case. Because of appellant’s prior history of similar

offenses, appellant posed the greatest likelihood of re-offending. State v. Avery, 5th Dist.

Stark No. 2004-CA-00010, 2004-Ohio-5226.

{¶21} We find the trial court did not act unreasonably, arbitrarily, or

unconscionably, in imposing a jail term of 180 days and find the trial court did not violate

appellant’s rights under the U.S. Constitution.

{¶22} Appellant’s assignment of error is overruled. The judgment of the

Muskingum County Court is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur