State v. Tucker

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[Cite as State v. Tucker, 2010-Ohio-5696.] COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsJUSTIN J. TUCKER Defendant-Appellant : : : : : : : : : JUDGES: Hon. Julie A. Edwards. P.J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J. Case No. 2010-COA-007 OPINION CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case No. 09-CRI059 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 17, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant RAMONA ROGERS ASHLAND COUNTY PROSECUTOR Suite 307, Orange Tree Square Ashland, OH 44805 DOUGLAS A. MILHOAN BOX 347 Middlebranch, OH 44652 [Cite as State v. Tucker, 2010-Ohio-5696.] Gwin, J., {¶1} Appellant Justin J. Tucker appeals the February 9, 2010 sentence rendered by the Ashland County Court of Common Pleas on the basis that it imposes an unnecessary burden on the State's resources. The following facts give rise to this appeal.1 {¶2} Appellant was indicted on one count of Possession of Cocaine, a felony of the fourth degree, and one count of Tampering with Evidence, a felony of the third degree. {¶3} On December 22, 2009, appellant pled guilty to Possession of Cocaine, a felony of the fourth degree. The trial court sentenced appellant to nine months in prison. Further, appellant was on post release control from a 2005 conviction for unlawful sexual conduct at the time of his conviction and sentencing in this case. Accordingly, the trial court terminated appellant s post release control and ordered him to serve the 773 days he had remaining on post release control. The trial court imposed the post release control time consecutive to the nine-month prison sentence for possession of cocaine. {¶4} Appellant has timely appealed raising the following assignment of error: {¶5} I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES. 1 A Statement of the Facts underlying Appellant s original conviction is unnecessary to our disposition of this appeal. Any facts needed to clarify the issues addressed in Appellant s assignment of error shall be contained therein. Ashland County, Case No. 2010-COA-007 3 I. {¶6} Appellant maintains in his sole assignment of error the imposition of an aggregate prison sentence of over thirty-four (34) months results in an unnecessary burden on State resources. We disagree. {¶7} At the outset, we note there is no constitutional right to an appellate review of a criminal sentence. Moffitt v. Ross (1974), 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2444; McKane v. Durston (1894), 152 U.S. 684, 687, 14 S. Ct. 913. 917; State v. Smith (1997), 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668; State v. Firouzmandi, 5th Dist No. 2006-CA-41, 2006-Ohio-5823. An individual has no substantive right to a particular sentence within the range authorized by statute. Gardner v. Florida (1977), 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205; State v. Goggans, Delaware App. No. 2006-CA-07-0051, 2007-Ohio-1433 at ¶ 28. In other words [t]he sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction ¦It is not the duration or severity of this sentence that renders it constitutionally invalid ¦. Townsend v. Burke (1948), 334 U.S. 736, 741, 68 S.Ct. 1252, 1255. {¶8} In a plurality opinion, the Supreme Court of Ohio established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008Ohio-4912, 896 N.E.2d 124. The first step is to "examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law." Kalish at ¶ 4. If this first step "is satisfied," the second step requires the trial court's decision be "reviewed under an abuse-of-discretion standard." Id. Ashland County, Case No. 2010-COA-007 {¶9} 4 As a plurality opinion, Kalish is of limited precedential value. See Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case as "of questionable precedential value inasmuch as it was a plurality opinion which failed to receive the requisite support of four justices of this court in order to constitute controlling law"). See, State v. Franklin (2009), 182 Ohio App.3d 410, 912 N.E.2d 1197, 2009-Ohio-2664 at ¶ 8. "Whether Kalish actually clarifies the issue is open to debate. The opinion carries no syllabus and only three justices concurred in the decision. A fourth concurred in judgment only and three justices dissented." State v. Ross, 4th Dist. No. 08CA872, 2009-Ohio-877, at FN 2; State v. Welch, Washington App. No. 08CA29, 2009-Ohio-2655 at ¶ 6. Nevertheless, until the Supreme Court of Ohio provides further guidance on the issue, we will continue to apply Kalish to appeals involving felony sentencing. State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264 at n. 2; State v. Ringler, Ashland App. No. 09-COA-008, 2009Ohio-6280 at ¶ 20. {¶10} In the first step of our analysis, we review whether the sentence is contrary to law. In the case at bar, appellant was convicted of a felony of the fourth degree. Upon each conviction for a felony of the fourth degree, the potential sentence that the trial court can impose is six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. In the case at bar, appellant was sentenced to nine months on the felony of the fourth degree. {¶11} Appellant violated his community control sanctions. Thus, at the time of the sentencing hearing, appellant could be sentenced to a term of incarceration either less than, but not more then, the term that the court advised at the original sentencing Ashland County, Case No. 2010-COA-007 5 hearing in 2005. The trial court has full discretion to impose a prison sentence within the statutory range and is no longer required to make findings or give reasons for imposing maximum, consecutive, or more than the minimum sentences. State v. Hines, Ashland App. No. 2005-COA-046, 2006-Ohio-4053 at ¶ 9; State v. Wolfe, Stark App. No. 2008-CA-00064, 2009-Ohio-830. {¶12} Upon review, we find that the trial court's sentencing on the charges complies with applicable rules and sentencing statutes. The sentences were within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised appellant regarding post release control. Therefore, the sentence is not clearly and convincingly contrary to law. {¶13} Having determined that the sentence is not contrary to law we must now review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v. Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave careful and substantial deliberation to the relevant statutory considerations. {¶14} Under Ohio law, judicial fact-finding is no longer required before a court imposes consecutive or maximum prison terms. See State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856; State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855. Instead, the trial court is vested with discretion to impose a prison term within the statutory range. See Mathis, at ¶ 36. In exercising its discretion, the trial court must carefully consider the statutes that apply to every felony case [including] R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which Ashland County, Case No. 2010-COA-007 6 provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender [and] statutes that are specific to the case itself. Id. at ¶ 37. Thus, post-Foster, there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to consider the statutory factors. Foster at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions. {¶15} There is no requirement in R.C. 2929.12 that the trial court states on the record that it has considered the statutory criteria concerning seriousness and recidivism or even discussed them. State v. Polick (1995), 101 Ohio App.3d 428, 431; State v. Gant, Mahoning App. No. 04 MA 252, 2006-Ohio-1469, at ¶ 60 (nothing in R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its findings), citing State v. Cyrus (1992), 63 Ohio St.3d 164, 166; State v. Hughes, Wood App. No. WD-05-024, 2005-Ohio-6405, at ¶10 (trial court was not required to address each R.C. 2929.12 factor individually and make a finding as to whether it was applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006Ohio-1342 at ¶19 ( ... R.C. 2929.12 does not require specific language or specific findings on the record in order to show that the trial court considered the applicable seriousness and recidivism factors ). (Citations omitted). {¶16} Where the record lacks sufficient data to justify the sentence, the court may well abuse its discretion by imposing that sentence without a suitable explanation. Where the record adequately justifies the sentence imposed, the court need not recite its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545. In other words, an Ashland County, Case No. 2010-COA-007 7 appellate court may review the record to determine whether the trial court failed to consider the appropriate sentencing factors. State v. Firouzmandi, 5th Dist No. 2006CA41, 2006-Ohio-5823 at ¶ 52. {¶17} Accordingly, appellate courts can find an abuse of discretion where the record establishes that a trial judge refused or failed to consider statutory sentencing factors. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342. An abuse of discretion has also been found where a sentence is greatly excessive under traditional concepts of justice or is manifestly disproportionate to the crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. The imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject to review. Woosley, supra at 143-145. Where the severity of the sentence shocks the judicial conscience or greatly exceeds penalties usually exacted for similar offenses or defendants, and the record fails to justify and the trial court fails to explain the imposition of the sentence, the appellate courts can reverse the sentence. Woosley, supra at 147. This by no means is an exhaustive or exclusive list of the circumstances under which an appellate court may find that the trial court abused its discretion in the imposition of sentence in a particular case. State v. Firouzmandi, supra. {¶18} There is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of appellant's case to suggest that his sentence was based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment. Ashland County, Case No. 2010-COA-007 8 {¶19} In the case at bar, the trial court conducted a sentencing hearing in open court. Appellant was previously convicted of felony Domestic Violence and Unlawful Sexual Conduct with a Minor. (Sentencing Transcript at 13-14.) Following his conviction for Domestic Violence, appellant was placed on community control. Appellant was given the opportunity to enter a treatment program. Slightly over a month after that sentencing hearing, appellant violated his community control by operating a motor vehicle while under the influence, resisting arrest, and contributing to the delinquency of a minor. In 2005, appellant was again placed on community control after being convicted of unlawful sexual conduct with a minor. (Sent. T. at 14). Appellant was ordered into a treatment program. Within months of sentencing, appellant absconded from the treatment program in violation of his community control. (Id at 14-15). Appellant was then sent to prison. was placed on post release control. Upon release from prison, appellant On two separate occasions, appellant violated post release control and was sent back to prison. (Id at 15). subsequently released from prison on January 29, 2009. Appellant was On February 21, 2009, appellant committed the offense in this case. Appellant was still on post release control at the time he committed the offense in the case at bar. (Id.). {¶20} It appears to this Court that the trial court's statements at the sentencing hearing were guided by the overriding purposes of felony sentencing to protect the public from future crime by the offender and others and to punish the offender. R.C. 2929.11. {¶21} Based on the record, the transcript of the sentencing hearing and the subsequent judgment entry, this Court cannot find that the trial court acted Ashland County, Case No. 2010-COA-007 9 unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant's rights to due process under the Ohio and United States Constitutions in its sentencing appellant. Further, the sentence in this case is not so grossly disproportionate to the offense as to shock the sense of justice in the community. {¶22} In his assignment of error, appellant contends that his sentence violates the general assembly's intent to minimize the unnecessary burden on state and local government resources. Specifically, appellant argues that because of the high cost of housing prison inmates, the cost of housing him in prison beyond the minimum sentence creates an unnecessary burden on state and local resources. {¶23} 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 "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." {¶24} 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 Ashland County, Case No. 2010-COA-007 10 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. {¶25} Several other appellate courts, including our own, considering these issues have reached the same conclusion. See, e.g., State v. Hyland, Butler App. No. CA2005-05-103, 2006-Ohio-339 at ¶32; State v. Brooks (Aug. 18, 1998), Franklin App. No. 97APA-11-1543; State v. Stewart (Mar. 4, 1999), Cuyahoga App. No. 74691; State v. Fox (Mar. 6, 2001), Wyandot App. No. 16-2000-17; State v. Miller, Ashland App. No. 04-COA-003, 2004-Ohio-4636. We agree with the reasoning of the Ober court and other courts considering this issue and find no merit to appellant's argument. {¶26} Appellant's sole assignment of error is overruled. {¶27} The judgment of the Ashland County Court of Common Pleas is affirmed. By Gwin, J., Edwards, P.J., and Wise, J., concur _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. JOHN W. WISE WSG:clw 1004 [Cite as State v. Tucker, 2010-Ohio-5696.] IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsJUSTIN J. TUCKER Defendant-Appellant : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 2010-COA-007 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Ashland County Court of Common Pleas is affirmed. Costs to appellant. _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. JOHN W. WISE

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