State v. Cassano

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[Cite as State v. Cassano, 2020-Ohio-447.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsADAM CASSANO Defendant-Appellant : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. Case No. 2019 CA 0048 OPINION CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 18CR739 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: February 3, 2020 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant GARY BISHOP Prosecuting Attorney By: JOSEPH SNYDER 38 South Park Street Mansfield, OH 44902 DARIN AVERY 105 Sturges Avenue Mansfield, OH 44903 Richland County, Case No. 2019 CA 0048 2 Gwin, P.J. {¶1} Defendant-appellant Adam Cassano [“Cassano”] appeals his sentence after a guilty plea in the Richland County Court of Common Pleas. Facts and Procedural History {¶2} The state indicted Cassano on August 23, 2018 for one count of aggravated possession of drugs, a fifth degree felony violation of R.C. 2925.11. At the time of the offense, Cassano was serving a prison sentence that does not expire until 2030. The state alleged that he possessed methamphetamine while an inmate at the Mansfield Correctional Institute. (T. at 4). The Criminal Rule 11(C) and (F) plea form signed by Cassano states, “No promises have been made to me as part of this plea agreement except: State to Argue for 6 months prison.” [Admission of Guilt/Judgment Entry, filed May 9, 2019. [Docket Entry No. 10]. During the sentencing hearing, the following exchange occurred, THE COURT: Anybody promised you anything other than what we talked about? Like I said, six months consecutive to what you are already doing. Anybody promised you anything different than that? THE DEFENDANT: No. I was told that I could take my case to appeal. I’m not agreeing to the six-month sentence in any way, shape, or form. THE COURT: I’ll let you argue to say why you think it should be something other than that. And the State, they may argue for a 12-month sentence consecutive. THE DEFENDANT: That’s fine. Richland County, Case No. 2019 CA 0048 3 T. at 5-6. {¶3} The trial court sentenced Cassano to six months in prison, consecutive to any other sentence he was serving. Assignment of Error {¶4} Cassano raises one Assignment of Error, {¶5} “I. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO A CONSECUTIVE SIX MONTH PRISON SENTENCE IN VIOLATION OF R.C. 2929.13, 2929.11, AND 2929.41(A).” Law and Analysis Standard of Appellate Review. {¶6} We review felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. {¶7} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an appellate court may only review individual felony sentences under R.C. 2929.11 and R.C. 2929.12, while R.C. 2953.08(G)(2) is the exclusive means of appellate review of consecutive felony sentences. ___ Ohio St.3d ___, 2019-Ohio-4761, ¶16-18; State v. Anthony, 11th Dist. Lake No. 2019-L-045, 2019-Ohio-5410, ¶60. {¶8} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is Richland County, Case No. 2019 CA 0048 4 otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio– 3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶16. {¶9} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 120 N.E.2d 118. {¶10} In the case at bar, Cassano does not contest the length of his 6-month sentence; rather his arguments center upon the trial court’s decision to make that sentence consecutive to the prison sentence that Cassano was serving at the time of the new offense. [Appellant’s Brief at 10]. As the Ohio Supreme Court noted in Gwynne, Because R.C. 2953.08(G)(2)(a) specifically mentions a sentencing judge’s findings made under R.C. 2929.14(C)(4) as falling within a court of appeals’ review, the General Assembly plainly intended R.C. 2953.08(G)(2)(a) to be the exclusive means of appellate review of consecutive sentences. See State v. Vanzandt, 142 Ohio St.3d 223, 2015Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative intent from the plain language of a statute”). Richland County, Case No. 2019 CA 0048 5 While R.C. 2953.08(G)(2)(a) clearly applies to consecutivesentencing review, R.C. 2929.11 and 2929.12 both clearly apply only to individual sentences. 2019-Ohio-4761, ¶¶16-17(emphasis in original). {¶11} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶37. Otherwise, the imposition of consecutive sentences is contrary to law. See Id. The trial court is not required “to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.” Id. ISSUE FOR APPEAL. A. Whether the trial court properly imposed consecutive sentences in Cassano’s case. R.C. 2929.13(B). {¶12} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony. Cassano pled guilty to a felony of the fifth degree. In relevant part the statute provides, (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction or combination of community control sanctions if all of the following apply: Richland County, Case No. 2019 CA 0048 (i) The offender previously has not been convicted of or pleaded guilty to a felony offense. (ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree. (iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions that are available for persons sentenced by the court. Emphasis added. R.C. 2929.13(B)(1)(b) further provides, (b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply: (i) The offender committed the offense while having a firearm on or about the offender’s person or under the offender’s control. (ii) If the offense is a qualifying assault offense, the offender caused serious physical harm to another person while committing the offense, and, if the offense is not a qualifying assault offense, the offender caused physical harm to another person while committing the offense. (iii) The offender violated a term of the conditions of bond as set by the court. 6 Richland County, Case No. 2019 CA 0048 (iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction that is available for persons sentenced by the court. (v) The offense is a sex offense that is a fourth or fifth degree felony violation of any provision of Chapter 2907. of the Revised Code. (vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon. (vii) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person. (viii) The offender held a public office or position of trust, and the offense related to that office or position; the offender’s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender’s professional reputation or position facilitated the offense or was likely to influence the future conduct of others. (ix) The offender committed the offense for hire or as part of an organized criminal activity. (x) The offender at the time of the offense was serving, or the offender previously had served, a prison term. 7 Richland County, Case No. 2019 CA 0048 8 (xi) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance. Emphasis added. {¶13} In the case at bar, Cassano was indicted for possessing drugs in the Mansfield Correctional Institute while serving a prison sentence on a previous case. Accordingly, the court had discretion to impose a prison term for the fifth degree felony. {¶14} An abuse of discretion can be found where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54. {¶15} We find the decision to impose a prison sentence to be supported by the record. T. at 8-9. The trial court’s reasoning is not legally incorrect or untenable and the decision does not reach an end or purpose not justified by reason and the evidence. The decision to impose a prison sentence does not amount to a denial of justice. As the trial court noted, to not give a prison sentence for an offense committed by one who is already in prison serving a sentence would amount to a “freebie.” T. at 8. R.C. 2929.14 (C)(4) Consecutive Sentences. {¶16} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. In Ohio, there is a statutory presumption in favor of concurrent sentences for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making Richland County, Case No. 2019 CA 0048 9 the statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15. {¶17} R.C. 2929.14(C)(4) provides, If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. Richland County, Case No. 2019 CA 0048 10 (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶18} Thus, in order for a trial court to impose consecutive sentences the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. The court must also find that consecutive sentences are not disproportionate to the offender’s conduct and to the danger the offender poses to the public. Finally, the court must make at least one of three additional findings, which include that (a) the offender committed one or more of the offenses while awaiting trial or sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or while under post-release control for a prior offense; (b) at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct would adequately reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36. {¶19} In this case, the record does support a conclusion that the trial court made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences. R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive Richland County, Case No. 2019 CA 0048 11 sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public. {¶20} In the case at bar, the trial court made this finding on the record and in its sentencing entry. T. at 8-9; Sentencing Entry, filed May 9, 2019 at 1-2 {Docket Entry No. 11]. R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. {¶21} The trial court found that Cassano committed the offense in the case at bar while in prison. T. at 8-9; Sentencing Entry, filed May 9, 2019 at 1-2 {Docket Entry No. 11]. R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. {¶22} The Court made no findings concerning this factor in Cassano’s case. R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶23} In the case at bar, the trial court made this finding on the record and in its sentencing entry. T. at 8 - 9; Sentencing Entry, filed May 9, 2019 at 1-2 {Docket Entry Richland County, Case No. 2019 CA 0048 12 No. 11]. B. Whether the trial court’s decision to impose consecutive sentences in Cassano’s case is supported by the record. {¶24} According to the Ohio Supreme Court, “the record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, ¶28. “[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶29. {¶25} The plurality of the Ohio Supreme Court in Gwynne held that appellate courts may not review consecutive sentences for compliance with R.C. 2929.11 and R.C. 2929.12. See 2019-Ohio- 4761, ¶18. {¶26} Upon review, we find that the trial court's sentencing on the charge complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Further, the record contains evidence supporting the trial court’s findings under R.C. 2929.14(C)(4). Therefore, we have no basis for concluding that it is contrary to law. {¶27} Cassano’s First Assignment of error is overruled. Richland County, Case No. 2019 CA 0048 13 {¶28} The judgment of the Richland County Court of Common Pleas is affirmed. By Gwin, PJ., Delaney, J., and Baldwin, J, concur

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