Opinion
CASE NO. 5-16-19
12-27-2016
STATE OF OHIO, PLAINTIFF-APPELLEE, v. NICOLE M. CROSS, DEFENDANT-APPELLANT.
APPEARANCES: Tim A. Dugan for Appellant Phillip A. Riegle for Appellee
OPINION
Appeal from Hancock County Common Pleas Court
Trial Court No. 2015-CR-131
Judgment Affirmed
APPEARANCES:
Tim A. Dugan for Appellant Phillip A. Riegle for Appellee SHAW, P.J.
{¶1} Defendant-appellant, Nicole Cross ("Cross"), brings this appeal from the July 29, 2016, judgment of the Hancock County Common Pleas Court sentencing Cross to community control after Cross pled guilty to Receiving Stolen Property in violation of R.C. 2913.51(A), a felony of the fifth degree. On appeal, Cross specifically challenges the trial court's decision to send her to 30 days of local incarceration as part of her community control.
Relevant Facts and Procedural History
{¶2} On June 2, 2015, Cross was indicted for one count of Receiving Stolen Property in violation of R.C. 2913.51(A), a felony of the fifth degree. Cross originally pled not guilty to the charge.
{¶3} On May 26, 2016, Cross entered into a written negotiated guilty plea wherein she agreed to plead guilty to the charge as indicted. That same day, a change of plea hearing was held. At the hearing, the trial court engaged in a thorough and extensive Crim.R. 11 dialogue with Cross. Once it was established that Cross was entering her guilty plea knowingly, intelligently, and voluntarily, the trial court was informed of the factual basis for the crime. It was indicated that Cross used the credit card of her ex-boyfriend's mother without permission and attempted to charge over $1,400 to it. Cross then pled guilty, her plea was accepted, and she was found guilty. A pre-sentence investigation was ordered and sentencing was set for a later date. An entry reflecting what transpired at the hearing was filed June 3, 2016.
{¶4} On July 18, 2016, Cross's sentencing hearing was held. At the hearing, the State recommended that Cross be placed on community control, with the terms to be determined in the court's discretion. Cross's counsel argued that the presumption against prison should not be overcome in this case. He also argued that Cross was working for a family ice cream shop, and that she had mental health issues. Cross made a statement requesting that she receive community control. She stated that she wanted to be able to work and be with her children, who were 13 and 4.
{¶5} The trial court proceeded to sentence Cross, beginning by noting her criminal history, which included a prior indictment against Cross in 2010 alleging Receiving Stolen Property against the exact same victim in this case. That prior indictment had been dismissed after Cross completed intervention in lieu of conviction.
{¶6} The trial court also mentioned Cross's substantial list of prescriptions filled over the previous 12 months, stating, "if I add up the number of pills that have been prescribed for you in the last year, it's unbelievable." (July 18, 2016, Tr. at 11). The trial court noted that it had considered that Cross was a mother and that she was employed.
{¶7} The trial court then stated that it had considered the principles and purposes of sentencing under R.C. 2929.11 and all of the requisite factors contained in R.C. 2929.12. In analyzing those factors the trial court found that Cross's relationship with the victim facilitated the offense and that none of the less serious sentencing factors applied.
{¶8} Ultimately the trial court placed Cross on community control for five years. The trial court ordered a number of specific sanctions as part of her community control, which included, inter alia, that Cross serve 30 days of local incarceration to begin immediately, that she write a letter of apology to the victim, and that she undergo a diagnostic assessment for substance abuse. In the event Cross violated community control, Cross was notified that she would be subject to a 10-month prison term.
{¶9} Before the sentencing hearing concluded, Cross requested that the trial court allow her to schedule her 30 days of incarceration rather than serve them immediately. The trial court actually did allow Cross to do that, though it questioned why Cross was unprepared to serve her days immediately, given that sentencing was scheduled for that day. Nevertheless, the trial court accommodated Cross's request, giving her until August 1, 2016, to schedule her date of incarceration.
{¶10} On July 29, 2016, the trial court's judgment entry on the matter was filed, memorializing what had transpired at the hearing. It is from this judgment that Cross appeals, asserting the following assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT'S TERMS AND CONDITIONS FOR COMMUNITY CONTROL WERE UNREASONABLE.
{¶11} In her assignment of error, Cross argues that the trial court erred by ordering 30 days of local incarceration as a term of her community control. Cross argues that she was employed, that she had two children, that she had mental health issues and that the trial court did not take those things into account when ordering her to serve the 30 days of local incarceration.
{¶12} Very recently, this Court considered what is functionally the exact same argument posed by Cross in this case and it was unanimously rejected. In State v. Maloney, 3d Dist. Hancock No. 5-16-10, 2016-Ohio-7822, the defendant contended that the trial court erred by sentencing him to 30 days of local incarceration as part of his community control. Maloney argued that there were negative consequences to him as a result of the local incarceration and thus it was error for the trial court to order him to serve the local incarceration. We overruled Maloney's arguments, stating that the 30-day jail sentence was permitted by statute as a term of community control under R.C. 2929.15 and R.C. 2929.16. We also stated that the fact that there were negative consequences to Maloney did not render the trial court's decision erroneous.
{¶13} The same analysis in Maloney is appropriate in this case, particularly given the fact that the trial court did explicitly consider the fact that Cross was a parent and that she had seasonal employment before placing her on community control and ordering her to serve 30 days of local incarceration as a condition of that community control. Moreover, the trial court actually made a specific accommodation to Cross by allowing her to schedule her dates of incarceration rather than serve them immediately. This was done after Cross requested that the trial court delay her incarceration and the trial court granted that accommodation even though it was not required to do so.
{¶14} Furthermore, the trial court stated that it considered R.C. 2929.11 and R.C. 2929.12 in fashioning its sentence and the sentence here was within all permissible and appropriate ranges. This Court has repeatedly held that where "the trial court explicitly stated that it had considered the [requisite statutory sentencing] factors * * * it was not required to elaborate upon them so long as the record indicates that the trial court considered them and the sentences were within the appropriate statutory range." (Emphasis sic) State v. Dayton, 3d Dist. Union No. 14-16-05, 2016-Ohio-7178, ¶ 21, citing State v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 30.
{¶15} For all the previously stated reasons, we cannot find that the trial court erred in sentencing Cross. Accordingly, Cross's sole assignment of error is overruled.
{¶16} For the foregoing reasons Cross's assignment of error is overruled and the judgment of the Hancock County Common Pleas Court is affirmed.
Judgment Affirmed PRESTON and WILLAMOWSKI, J.J., concur.