State v. Tharp

2014 Ohio 1623

Opinion

[Cite as State v. Tharp, 2014-Ohio-1623.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100112

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RYAN THARP DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-571157

BEFORE: Kilbane, J., S. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: April 17, 2014 ATTORNEY FOR APPELLANT

Kenneth J. Lewis Kenneth J. Lewis Co., L.P.A. 1220 West 6th Street Suite 502 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Jennifer A. Driscoll Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Ryan Tharp (“Tharp”), appeals from the sentence

imposed upon his conviction for child endangering and domestic violence. Having

reviewed the record and controlling case law, we affirm.

{¶2} On March 1, 2013, Tharp was indicted pursuant to a six-count indictment in

connection with alleged attacks on a four-year-old child from January 25-26, 2013.

Counts 1-3 charged him with endangering children in violation of R.C. 2919.22(B)(1),

(3), and (4), all with furthermore specifications alleging that Tharp’s actions resulted in

serious physical harm to the child. Count 4 charged Tharp with felonious assault in

violation of R.C. 2903.11(A)(1). Count 5 charged him with kidnapping, in violation of

R.C. 2905.01(A)(3), and Count 6 charged him with domestic violence, in violation of

R.C. 2919.25(A).

{¶3} Tharp pled not guilty to the charges, but then on May 29, 2013, he entered

into a plea agreement with the state of Ohio and pled guilty to the first count of

endangering children and the domestic violence charge. The remaining charges were

dismissed. On July 1, 2013, the trial court sentenced Tharp to eight years in prison and

three years of postrelease control sanctions for child endangerment. On January 23,

2014, the trial court issued a nunc pro tunc sentencing order in which it sentenced Tharp

to eight years in prison and three years of postrelease control for child endangering and

time served for 151 days for domestic violence.

{¶4} Tharp assigns the following error for our review: The trial court erred and abused its discretion in sentencing Appellant to a maximum sentence.

{¶5} A defendant’s right to appeal a sentence is based on specific grounds stated

in R.C. 2953.08(A):

In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant on one of the following grounds:

***

(4) The sentence is contrary to law.

{¶6} A reviewing court may “increase, reduce, or otherwise modify a sentence *

* * or may vacate the sentence and remand the matter to the sentencing court for

resentencing” if we determine that “the record clearly and convincingly * * * does not

support the sentencing court’s findings under [various provisions]; [or] [t]hat the sentence

is otherwise contrary to law.” R.C. 2953.08(G)(2).

{¶7} In imposing a sentence, the trial court must consider the purposes and

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

recidivism factors set forth in R.C. 2929.12.

{¶8} In accordance with R.C. 2929.11, a sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing: (1)

“to protect the public from future crime by the offender and others,” and (2) “to punish

the offender using the minimum sanctions that the court determines accomplish those

purposes.” R.C. 2929.11(A). {¶9} Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list of

factors, including the seriousness of the defendant’s conduct, the likelihood of recidivism,

and “any other factors that are relevant to achieving those purposes and principles of

sentencing.”

{¶10} The sentencing court is not required, however, to engage in any factual findings under R.C. 2929.11 or 2929.12. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437; State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497. Instead, the trial court still has the discretion to determine whether the sentence satisfies the overriding purpose of Ohio’s sentencing structure. Bement at ¶ 17, citing State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 49.

{¶11} Here, the trial court sentenced Tharp to eight years in prison. The statutory

range for endangering children, a felony of the second degree, is from two to eight years.

See R.C. 2929.14(A)(2). The sentence is therefore within the permissible statutory

range. Tharp argues that the sentence is erroneous because the trial court did not make

specific findings on the record to support the maximum term. He also argues that the

trial court failed to consider the mitigating factors offered by the defense, such as his

employment, his substance abuse struggles, and prior good conduct.

{¶12} In accordance with R.C. 2929.11, and 2929.12, the trial court stated that it

considered the overriding purposes of felony sentencing, to protect the public and punish

the offender using the minimum sanctions to accomplish those purposes and without

imposing an undue burden on governmental resources. (Tr. 19-20.) The court also stated

that it considered the relevant seriousness and recidivism factors, and indicated in its

journal entry that it considered all factors required by law. This is sufficient to fulfill its

obligations under the sentencing statutes. See State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112; State v. Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061,

¶ 61.

{¶13} Furthermore, the court received sentencing memoranda from the state and

from defense counsel and was informed that Tharp had drug- and alcohol-related

problems. The trial court noted that the victim was a child of tender years and has

autism. The court further noted that the victim suffered a broken leg, bruising and

swelling on his back and genitals, sustained cuts on his wrists and knuckles, burns on his

hands, a bruise on his eye, and had blood around his liver. The court also observed that

Tharp was the boyfriend of the child’s mother and his relationship with the child

facilitated the offense. The court did not find his explanation that the child sustained his

injuries when he fell during a snowball fight to be credible. The court also concluded

that, during the time period of the offenses, Tharp manifested a violent disposition.

{¶14} In accordance with all of the foregoing, the sentence is not clearly and

convincingly contrary to law. The assignment of error is without merit.

{¶15} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR