State v. Bianca

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[Cite as State v. Bianca, 2011-Ohio-3321.] COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. -vsCase No. 10-COA-041 TYLER J. BIANCA Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 10-CRI-096 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 30, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant RAMONA FRANCESCONI ROGERS ASHLAND COUNTY PROSECUTOR 110 Cottage Street, Third Floor Ashland, Ohio 44805 DOUGLAS A. MILHOAN P.O. Box 347 Middlebranch, Ohio 44652 By: PAUL T. LANGE Assistant Prosecuting Attorney 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 10-COA-041 2 Hoffman, P.J. {¶1} Defendant-appellant Tyler J. Bianca appeals his sentence entered by the Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶2} On July 22, 2010, Appellant, who was 16 years old, was at the home of Marge Swope, the grandmother of his friend, C.L.1, in Ashland, Ohio. Appellant had obtained a handgun from another juvenile prior to arriving in Ashland, and brought the weapon with him to the Swope home. Appellant, C.L., and Stephen Ashby2 decided to attend a party in Shiloh, Ohio. A fourth individual transported them to the party, but did not remain. Although Appellant intended to sell the firearm, he had not yet done so and brought the firearm to the party. {¶3} While at the party, Appellant, C.L., and Ashby met Loralie King. The party was at King s home. Appellant and his friends did not have a means of transportation back to Ashland, and asked King to give them a ride. At approximately 1:30 to 2:00 a.m. on July 23, 2010, King agreed to drive Appellant, C.L., and Ashby to the Shenandoah General Store which was a portion of the way back to Ashland. King drove her vehicle. She had a pack of cigarettes, her friend s cell phone, and $55 cash in her possession. Appellant, who sat in the front passenger seat, asked King if he could use the cell phone. After making a call, Appellant threw the phone out the car window. King objected. Appellant removed the handgun, held it to King s head, and demanded she drive them the entire way to Ashland. Appellant previously told C.L. of his intentions. 1 2 C.L. was a minor at the time. Stephen Ashby was over 18 years of age at the time. Ashland County, Case No. 10-COA-041 3 Appellant held the handgun against or in close proximity to King s head during the entire drive. {¶4} Appellant demanded King s money and cigarettes. While stopped at an intersection, Appellant instructed King to exit the vehicle, which she did. Appellant searched the vehicle for a lighter and found money King had attempted to hide. Appellant then ordered King back into the vehicle. King drove Appellant and the others to the Ashland YMCA. King was then able to drive away. Appellant, C.L., and Ashby returned to the Swope residence where Appellant hid the handgun under a couch cushion. {¶5} Appellant was charged by Complaint in Juvenile Court, alleging he was delinquent for committing acts constituting the offenses of aggravated robbery, abduction, having weapons while under disability, tampering with evidence, and petty theft. Upon motion of the State, the juvenile court relinquished jurisdiction, and the matter was transferred to the General Division for prosecution of Appellant as an adult. The State filed a Bill of Information on September 29, 2010. {¶6} On October 1, 2010, Appellant entered a plea of guilty to one count of robbery, a felony of the second degree, and one count of abduction, a felony of the third degree. The trial court accepted the plea, found Appellant guilty, and ordered a presentence investigation. The trial court conducted a sentencing hearing on November 15, 2010, at which time it sentenced Appellant to an aggregate term of imprisonment of six years. The trial court memorialized the sentence via Judgment Entry - Sentencing filed November 24, 2010. Ashland County, Case No. 10-COA-041 {¶7} 4 It is from this judgment entry Appellant appeals, raising as his sole assignment of error: {¶8} I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES. {¶9} Based on the record, this Court cannot find the trial court acted unreasonably, arbitrarily, or unconscionably, or that the trial court violated Appellant's rights to due process under the Ohio or United States Constitutions in its sentencing. Further, the sentence in this case is not so grossly disproportionate to the offense as to shock the sense of justice in the community. {¶10} In his sole assignment of error, Appellant contends his sentence places an unnecessary burden on state resources. {¶11} In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second District considered this same issue. In rejecting the argument, the Court stated, {¶12} Ober is correct that the sentence shall not impose an unnecessary burden on state or local government resources. R.C. 2929.19(A). According to criminal law experts, this resource principle impacts on the application of the presumptions also contained in this section and upon the exercise of discretion. Griffin & Katz, Ohio Felony Sentencing Law (1996 97), 62. Courts may consider whether a criminal sanction would unduly burden resources when deciding whether a second-degree felony offender has overcome the presumption in favor of imprisonment because the resource principle is consistent with the overriding purposes and principles of felony sentencing set forth in R.C.2929.11. Id. Ashland County, Case No. 10-COA-041 5 {¶13} The Ober Court concluded, [a]lthough resource burdens may be a relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate resource conservation above the seriousness and recidivism factors. Imposing a community control sanction on Ober may have saved state and local government funds; however, this factor alone would not usually overcome the presumption in favor of imprisonment. Id. {¶14} R.C. 2929.13 governs sentencing guidelines for various specific offenses and degrees of offenses. Subsection (A) states, in pertinent part: {¶15} 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. {¶16} As we noted in State v. Ferenbaugh, Ashland App. No. 03COA038, 2004 Ohio 977 at paragraph 7, [t]he very language of the cited statute grants trial courts discretion to impose sentences. Nowhere within the statute is there any guideline for what an unnecessary burden is. Moreover, in State v. Shull, Ashland App. No.2008 COA 036, 2009 Ohio 3105, this Court reviewed a similar claim. We found although burdens on State resources may be a relevant sentencing criteria as set forth in R.C. 2929.13, state law does not require trial courts to elevate resource conservation above seriousness and recidivism factors, Shull, at paragraph 22, citing State v. Ober (October 10, 1997), Greene App. No. 97CA0019, 1997 WL 624811. Ashland County, Case No. 10-COA-041 6 {¶17} Upon review, we do not find the sentence imposed herein constituted an unnecessary burden on state resources. {¶18} Appellant s sole assignment of error is overruled. {¶19} The judgment of the Ashland County Court of Common Pleas is affirmed. By: Hoffman, P.J. Farmer, J. and Edwards, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS Ashland County, Case No. 10-COA-041 7 IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsTYLER J. BIANCA Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 10-COA-041 For the reason stated in our accompanying Opinion, the judgment of the Ashland County Court of Common Pleas is affirmed. Costs to Appellant. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER s/ Julie A. Edwards ___________________ HON. JULIE A. EDWARDS

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