State v. Ward

2012 Ohio 293

• Court: Ohio Court of Appeals
• Decided: January 27, 2012
• Docket: 24521
• Status: Published

Opinion

[Cite as State v. Ward, 2012-Ohio-293.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24521

vs. : T.C. CASE NO. 10CR3763

DOMINIQUE M. WARD : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 27th day of January, 2012.

Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Asst. Pros. Attorney, Atty. Reg. No. 0069829, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee

Richard A. Nystrom, Atty. Reg. No. 0040615, 1502 Liberty Tower, 120 West Second Street, Dayton, OH 45402 Attorney for Defendant-Appellant

GRADY, P.J.:

{¶ 1} Defendant, Dominique Ward, was indicted on one count

of aggravated robbery involving use of a deadly weapon, R.C.

2911.01(A)(1), one count of aggravated robbery involving serious

physical harm, R.C. 2911.01(A)(3), one count of receiving stolen 2

property, R.C. 2913.51(A), and one count of obstructing justice,

R.C. 2921.32(A)(5). Both aggravated robbery charges included a

three year firearm specification. R.C. 2941.145. Pursuant to

a negotiated plea agreement, Defendant entered a plea of guilty

to the aggravated robbery charge involving use of a deadly weapon,

without the attached firearm specification. In exchange, the

State dismissed the remaining charges and firearm specifications.

The trial court sentenced Defendant to a four-year prison term.

{¶ 2} Defendant timely appealed to this court from her

conviction and sentence.

ASSIGNMENT OF ERROR

{¶ 3} “WHETHER THE COURT ABUSED HER DISCRETION IN IMPOSING

AN UNREASONABLE SENTENCE IN NONCONFORMANCE TO THE PRINCIPLES AND

PURPOSES OF SENTENCING UNDER O.R.C. 2929.11 AND 2929.12 AND

SUFFICIENT TO COMPROMISE DEFENDANT’S CONSTITUTIONAL RIGHTS TO DUE

PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE

CONSTITUTION.”

{¶ 4} Aggravated robbery involving use of a deadly weapon,

R.C. 2911.01(A)(1), is a first degree felony offense. R.C.

2911.01(C). First degree felony offenses are punishable by

imposition of a definite term of imprisonment of three, four, five,

six, seven, eight, nine, ten or eleven years. R.C. 2929.14(A)(1). 3

{¶ 5} Defendant argues that the trial court abused its

discretion in sentencing her, a first time felony offender, to

more than the three year minimum sentence for aggravated robbery

because she was, at worst, an accomplice after the fact, because

she lacked any prior knowledge about the robbery and did not take

part in the planning or performance of the robbery. Simply put,

Defendant contends that the facts demonstrate that her culpability,

the risk she poses to society, and her potential for recidivism

are all minimal and therefore do not justify more than a minimum

sentence.

{¶ 6} On the night of November 26, 2010, Defendant was visiting

her mother and needed a ride home. She asked her sister. When

Defendant’s sister picked her up, there were two men inside the

vehicle. Rather than taking Defendant directly home, Defendant’s

sister stopped at the home of a friend, Kindle Battle, and they

all went inside the home to socialize. Defendant played video

games with the children who were present in the home. Suddenly,

the two men pulled a gun on Kindle Battle, at which point Defendant

ran outside to the car. Battle was pistol whipped and suffered

serious physical harm. Battle’s ten year old son, who witnessed

the incident, suffered psychological trauma. Eventually, stolen

items from the Battle home were carried out to the car in which

Defendant was waiting. The group then drove to Defendant’s home 4

where they divided up the stolen loot.

{¶ 7} In State v. Jeffrey Barker, 2nd Dist. Montgomery No.

22779, 2009-Ohio-3511, at ¶36-37, we wrote:

The trial court has full discretion to impose any

sentence within the authorized statutory range, and the

court is not required to make any findings or give its

reasons for imposing maximum, consecutive, or more than

minimum sentences. State v. Foster, 109 Ohio St.3d 1,

845 N.E.2d 470, 2006-Ohio-856, at paragraph 7 of the

syllabus. Nevertheless, in exercising its discretion

the trial court must consider the statutory policies

that apply to every felony offense, including those set

out in R.C. 2929.11 and 2929.12. State v. Mathis, 109

Ohio St.3d 54, 846 11 N.E.2d 1, 2006-Ohio-855, at ¶37.

When reviewing felony sentences, an appellate court

must first determine whether the sentencing court

complied with all applicable rules and statutes in

imposing the sentence, including R.C. 2929.11 and

2929.12, in order to find whether the sentence is

contrary to law. State v. Kalish, 120 Ohio St.3d 23,

896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not

clearly and convincingly contrary to law, the trial

court's decision in imposing the term of imprisonment 5

must be reviewed under an abuse of discretion standard.

Id.

{¶ 8} Defendant does not argue that her sentence is clearly

and convincingly contrary to law because the trial court failed

to comply with the applicable rules and statutes in imposing its

sentence. Rather, Defendant argues that on these facts any

sentence greater than the minimum is excessive and constitutes

an abuse of the trial court’s discretion. We disagree.

{¶ 9} Although Foster freed the trial courts from most of the

requirements to make findings or give its reasons before imposing

maximum, consecutive, or greater than minimum sentences, the

legislative policy remains: “A first prison term should be the

minimum sentence within the range absent reason to impose a greater

sentence.” State v. Bowshier, 2nd Dist. Clark No. 08CA58,

2009-Ohio-3429, ¶ 11. If the trial court imposes more than a

minimum sentence, support for the sentence should appear in the

record. Id.; Griffin and Katz, Ohio’s Felony Sentencing Law

(2007) 208.

{¶ 10} Here, the trial court’s four year sentence, which is

one year more than the minimum sentence for felonies of the first

degree, and seven years less than the maximum, is supported by

the record. This robbery involved a deadly weapon, a gun, that

was used to beat and injure the adult victim in the presence of 6

the victim’s young son. In imposing its four year sentence, the

trial court took into account that Defendant may be the least

culpable of all of the perpetrators and that she entered a guilty

plea, but the court noted that once Defendant became aware of the

robbery, Defendant didn’t do or say anything to try and stop it,

and she did not call police for help for the victim or the children

who were present. As a result, the adult victim was injured and

his ten year old son who witnessed the incident was psychologically

traumatized. Furthermore, by defense counsel’s own admission at

sentencing, Defendant “assisted in the carrying out or handling

of the spoils.” To that limited extent, at least, Defendant

ratified the perpetrators’ criminal conduct. Finally, Defendant

has a previous misdemeanor conviction for petty theft in 2010.

{¶ 11} The overriding purposes of felony sentencing are to

protect the public from future crime by the offender and to punish

the offender. R.C. 2929.11(A). The trial court has discretion

to determine the most effective way to comply with the purposes

and principles of sentencing. R.C. 2929.12(A). We see no abuse

of discretion on the part of the trial court in imposing a four

year sentence in this case.

{¶ 12} Defendant’s sole assignment of error is overruled. The

judgment of the trial court will be affirmed. 7

DONOVAN, J., And HALL, J., concur.

Copies mailed to:

Michele D. Phipps, Esq. Richard A. Nystrom, Esq. Hon. Frances McGee