State v. Brandenburg

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[Cite as State v. Brandenburg, 2015-Ohio-2573.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY STATE OF OHIO, Plaintiff-Appellee, : : : - vs - CASE NOS. CA2014-10-201 CA2014-10-202 OPINION 6/29/2015 : JONATHAN BRANDENBURG, Defendant-Appellant. : : CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case Nos. CR2013-09-1498 and CR2014-05-0848 Michael T. Gmoser, Butler County Prosecuting Attorney, Audra R. Adams, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee Charles Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant PIPER, P.J. {¶ 1} Defendant-appellant, Jonathan Brandenburg, appeals his three-year sentence imposed by the Butler County Court of Common Pleas after pleading guilty to one count of robbery and one count of attempted failure to appear. {¶ 2} Brandenburg and his co-defendant committed multiple robberies by stealing money from travelers who stopped at rest areas along Interstate 75. Brandenburg and his co-defendant would approach travelers and either ask for help in assisting another motorist Butler CA2014-10-201 CA2014-10-202 or ask the travelers to engage in card games for money. Once the travelers left their vehicle to help or gamble, Brandenburg and his co-defendant would surround the victim and steal his or her money. One victim, however, fought back and chased Brandenburg into the rest area facility where he hid in the bathroom. The victim called police, and Brandenburg was arrested. {¶ 3} Brandenburg was indicted on two counts of robbery and later charged with failure to appear when he did not attend a hearing as ordered. Brandenburg and the state entered into plea negotiations and Brandenburg agreed to plead guilty to one count of robbery and an amended charge of attempted failure to appear. The trial court accepted Brandenburg's pleas after a hearing on the matter. The trial court then ordered a presentence investigation report and scheduled a sentencing hearing. {¶ 4} The trial court sentenced Brandenburg to three years in prison for the robbery charge and one year for the attempted failure to appear, and the sentences were ordered concurrently for an aggregate three-year sentence. Brandenburg now appeals his sentence, raising the following assignment of error. {¶ 5} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY IMPOSING A PRISON SENTENCE. {¶ 6} Brandenburg argues in his assignment of error that the trial court abused its discretion by imposing a maximum prison sentence. {¶ 7} In support of his argument that the trial court incorrectly sentenced him, Brandenburg relies upon the standard set forth in State v. Kalish, 120 Ohio St.3d 23, 2008Ohio-4912. However, and as this court has stated multiple times, the standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony sentences. State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2), when -2- Butler CA2014-10-201 CA2014-10-202 hearing an appeal of a trial court's felony sentencing decision, "the appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing." However, as explicitly stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion." Id. at ¶ 7. {¶ 8} Instead, an appellate court may only take action authorized by R.C. 2953.08(G)(2) if the court "clearly and convincingly finds" that the sentence is contrary to law. A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing as set forth in R.C. 2929.11, as well as the seriousness and recidivism factors listed in R.C. 2929.12, and sentences appellant within the permissible statutory range. Crawford at ¶ 9; State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10. {¶ 9} After reviewing the record, the trial court's sentence is not contrary to law. We begin by noting that at the sentencing hearing, the trial court did not reference R.C. 2929.11 or R.C. 2929.12. However, and while a statement regarding the trial court's consideration of the statutory sentencing factors would have clarified the issue for Brandenburg, the record is obvious that the trial court made the proper considerations. Throughout the sentencing hearing, the trial court referenced information in the presentence investigation report, and also highlighted various aspects of Brandenburg's extensive criminal history and questioned Brandenburg's recidivism risks. The trial court also discussed facts of the case, specific to Brandenburg victimizing people at rest areas. These discussions by the trial court demonstrate that it had properly considered the purposes and principles of sentencing, as well as the seriousness and recidivism factors. {¶ 10} Moreover, the trial court expressly stated in its entry that it had considered the -3- Butler CA2014-10-201 CA2014-10-202 purposes and principles of sentencing according to R.C. 2929.11 as well as the seriousness and recidivism factors within R.C. 2929.12. See State v. Ballard, 12th Dist. Butler No. CA2014-09-197, 2015-Ohio-2084 (affirming a sentence where the trial court failed to cite R.C. 2929.11 or 2929.12 during the sentencing hearing but stated in its judgment entry of conviction that it had considered the principles and purposes of sentencing pursuant to R.C. 2929.11 and balanced the seriousness and recidivism factors pursuant to R.C. 2929.12); and State v. Lancaster, 12th Dist. Butler No. CA2007-03-075, 2008-Ohio-1665 (affirming a sentence where the trial court did not state at the sentencing hearing that the court considered R.C. 2929.11 or R.C. 2929.12 specifically, but stated its consideration of both statutes in its judgment entry of conviction). Based on the record, it is clear that the trial court gave the proper consideration to the purposes and principles of sentencing as well as the seriousness and recidivism factors as required by Ohio's sentencing statutes. {¶ 11} Brandenburg was convicted of robbery in violation of R.C. 2911.02(A)(3), which is a third-degree felony. According to R.C. 2929.14(A)(3)(b), "for a felony of the third degree * * * the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months." As such, Brandenburg's three-year sentence was within the sentencing range for a thirddegree felony. Brandenburg was also convicted of attempted failure to appear in violation of R.C. 2937.29, a fifth-degree felony. According to R.C. 2929.14(A)(5), "for a felony of the fifth degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months." As such, Brandenburg's one-year sentence was also within the sentencing range for a fifthdegree felony. {¶ 12} After reviewing the record, we find that Brandenburg's sentence was not clearly and convincingly contrary to law where the trial court considered the purposes and principles of sentencing according to R.C. 2929.11, as well as the seriousness and recidivism factors -4- Butler CA2014-10-201 CA2014-10-202 listed in R.C. 2929.12, and sentenced Brandenburg within the permissible statutory range. Brandenburg's sentence was not contrary to law, and his assignment of error is overruled. {¶ 13} Judgment affirmed. RINGLAND and HENDRICKSON, JJ., concur. -5-

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