State v. West

2011 Ohio 5215

Opinion

[Cite as State v. West, 2011-Ohio-5215.]

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. Julie A. Edwards, J. -vs- : : CODY WEST : Case No. CT11-0003 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case. No. CR2010-0178

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 6, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT L. SMITH ERIC J. ALLEN 27 North Fifth Street 713 South Front Street Suite 201 Columbus, OH 43206 Zanesville, OH 43701 Muskingum County, Case No. CT11-0003 2

Farmer, J.

{¶1} On September 1, 2010, the Muskingum County Grand Jury indicted

appellant, Cody West, on one count of robbery in violation of R.C. 2911.02 and one

count of possession of criminal tools in violation of R.C. 2923.24. Said charges arose

from a robbery at the Starfire Gas Station in Zanesville, Ohio.

{¶2} On October 27, 2010, appellant pled guilty to the robbery count. The

remaining count was nolled. By entry filed December 7, 2010, the trial court sentenced

appellant to three years in prison.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE

DEFENDANT TO THREE YEARS IN PRISON."

{¶5} Appellant claims the trial court abused its discretion in sentencing him to

three years in prison. We disagree.

{¶6} Specifically, appellant argues his sentence of three years for robbery in

the second degree "is a waste of resources to incarcerate an admitted addict with no

chance of rehabilitation in prison." Appellant's Brief at 3.

{¶7} R.C. 2929.11 governs overriding purposes of felony sentences and states

as follows:

{¶8} "(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony sentencing Muskingum County, Case No. CT11-0003 3

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

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources. To achieve those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.

{¶9} "(B) A sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing set forth in division (A) of this

section, 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 crimes committed by similar offenders."

{¶10} R.C. 2929.13 governs sentencing guidelines for various specific offenses

and degrees of offenses. Subsection (A) states as follows in pertinent part:

{¶11} "Except as provided in division (E), (F), or (G) of this section and unless a

specific sanction is required to be imposed or is precluded from being imposed pursuant

to law, a court that imposes a sentence upon an offender for a felony may impose any

sanction or combination of sanctions on the offender that are provided in sections

2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an

unnecessary burden on state or local government resources."

{¶12} The very language of R.C. 2929.13 grants trial courts discretion to

impose sentences. Pursuant to R.C. 2929.14(A)(2), a felony of the second degree is Muskingum County, Case No. CT11-0003 4

punishable by "two, three, four, five, six, seven, or eight years." Appellant was

sentenced to three years in prison, within the permissible range.

{¶13} In sentencing appellant to three years, the trial court noted, "[u]pon review

of the presentence investigation, the Court will note, as indicated by counsel, you have

no felony record as an adult, but you committed a felony, similar crime, when you were

a juvenile, as well as other felonies at DYS." December 6, 2010 T. at 5.

{¶14} While appellant argues he is an admitted drug user and has mental health

problems and therefore incarceration would be a waste of resources, protecting the

public and punishment are the focus of R.C. 2929.11, not rehabilitation. The trial court

found appellant had committed a similar crime while a juvenile, as well as other felonies

while in the custody of the Department of Youth Services. In committing the robbery of

the gas station, appellant struck an employee, a struggle ensued, and he continued to

strike the employee while demanding money. See, Appellant's Brief, Statement of the

Facts. The trial court sentenced appellant to three years, the low end of the range of

sentences for a second degree felony.

{¶15} Upon review, we find the trial court did not abuse its discretion in

sentencing appellant to three years in prison.

{¶16} The sole assignment of error is denied. Muskingum County, Case No. CT11-0003 5

{¶17} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.

_s / Sheila G. Farmer_________________

_s/ William B. Hoffman________________

_s/ Julie A. Edwards__________________

JUDGES

SGF/sg 916 [Cite as State v. West, 2011-Ohio-5215.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : CODY WEST : : Defendant-Appellant : CASE NO. CT11-0003

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

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

to appellant.

_s/ Sheila G. Farmer__________________