From Casetext: Smarter Legal Research

State v. Herbert

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
Jun 30, 2017
2017 Ohio 5652 (Ohio Ct. App. 2017)

Opinion

CASE NO. 2017-L-002

06-30-2017

STATE OF OHIO, Plaintiff-Appellee, v. JOSHUA M. HERBERT, Defendant-Appellant.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44094 (For Defendant-Appellant).


OPINION

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2016 CR 000627. Judgment: Affirmed. Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44094 (For Defendant-Appellant). DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Joshua M. Herbert, appeals his sentence for ten counts of Falsification to Obtain a Concealed Handgun License in the Lake County Court of Common Pleas. The issue to be determined by this court is whether the trial court failed to take into account the "conservation principle" of the sentencing statutes when ordering the defendant, who has experienced mental health concerns, to serve a jail term. For the following reasons, we affirm the judgment of the lower court.

{¶2} On June 24, 2016, Herbert was indicted by the Lake County Grand Jury on 84 counts: 56 counts of Falsification to Obtain a Concealed Handgun License, felonies of the fourth degree, in violation of R.C. 2921.13(A)(14) and (C); and 28 counts of Tampering with Records, felonies of the third degree, in violation of R.C. 2913.42(A)(1).

{¶3} On October 17, 2016, a Written Plea of Guilty and Judgment Entry were filed. Herbert pled guilty to ten counts of Falsification, in violation of R.C. 2921.13(A)(14). A separate Judgment Entry was filed on October 24, 2016, memorializing the court's finding of guilt and noting that the State would move to dismiss the remaining counts at sentencing.

{¶4} A sentencing hearing was held on December 5, 2016. In relation to the conduct leading to the charges against Herbert, that he provided certificates for concealed carry gun courses he taught which did not supply the necessary amount of training, defense counsel noted that time requirements for such classes have since been decreased by the legislature. The court stated that this "doesn't condone falsifying records to suggest that they were different period of times teaching." Defense counsel argued that some of the classes taught by Herbert had been the proper length and in others, the students still received "a bulk of the information." Counsel emphasized that aside from charges for the offense of Falsification in Geauga County, Herbert had lived a law-abiding life and has shown remorse. He also emphasized Herbert suffered from anxiety and depression, which was documented in reports from a Dr. Afsarifard and court psychologist Dr. Rindsberg, he is seeing a counselor, and that a jail sentence "could have a negative effect" on him.

{¶5} The State recommended that Herbert serve 30 days in jail as well as 60 days of house arrest.

{¶6} The court noted that it considered the purposes and principles of felony sentencing in R.C. 2929.11 and the factors in R.C. 2929.12 and .13, as well as the PSI report, the reports of Dr. Rindsberg and Dr. Afsarifard, and letters from the victims in support of Herbert. Herbert was ordered to serve a term of one year of community control, 60 days of house arrest, and 21 days in jail, with credit for one day served. He was also ordered to continue with mental health services. A Judgment Entry of Sentence was filed on December 9, 2016, memorializing the sentence. Herbert's sentence was stayed pending appeal.

{¶7} Herbert timely appeals and raises the following assignment of error:

{¶8} "The trial court erred on December 9, 2016 because its sentence was contrary to law and an abuse of discretion as a result of the conservation of resources principle set forth in R.C. 2929.11 being violated."

{¶9} Initially, we note that Herbert has failed to set forth the proper standard for felony sentencing, citing to State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Ohio Supreme Court has held that the Kalish test for sentencing no longer applies in reviewing sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7.

{¶10} Instead, the standard of review for felony sentences is provided by R.C. 2953.08(G)(2). "The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court." R.C. 2953.08(G)(2). "Applying the plain language of R.C. 2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Marcum at ¶ 1.

{¶11} Herbert argues that while the court stated that it considered the purposes and principles of sentencing in R.C. 2929.11 as well as the factors in R.C. 2929.12 and .13, "it did not properly consider the conservation principle" as required by R.C. 2929.11.

{¶12} Pursuant to R.C. 2929.11(A), "[a] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing * * * [which] are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources."

{¶13} As the Supreme Court of Ohio has held, R.C. 2929.11 and .12 do not require judicial fact-finding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42; State v. Macko, 11th Dist. Lake No. 2016-L-022, 2017-Ohio-253, ¶ 75. "Rather, in sentencing a defendant for a felony, a court is merely required to consider the purposes and principles of sentencing in R.C. 2929.11 and the statutory * * * factors in R.C. 2929.12." Macko at ¶ 75.

{¶14} In the present matter, the court stated that it had considered the purposes and principles of felony sentencing set forth in R.C. 2929.11 and all relevant factors to comply with those purposes and principles, including those set forth in R.C. 2929.12 and .13. The court provided specific analysis of the reasons for its sentence. As to the seriousness factors, it noted that the victims had suffered economic harm but no physical harm, that Herbert had been in a position of trust, and that there were multiple counts of the same conduct. Further, in considering recidivism and the likelihood of future crime, it emphasized that Herbert had a prior conviction for the same or similar conduct in Geauga County, but also noted that he otherwise had no juvenile record and "has been a law abiding citizen" for a period of years, and he had accepted responsibility for his conduct. The court recognized that the psychological evaluations found Herbert suffered from depression. A review of the record supports these findings and demonstrates that the court fully complied with its obligations to consider the pertinent factors.

{¶15} Herbert argues, however, that the court did not "properly" weigh the burden on state or local government resources that would result from his jail sentence. As noted above, the court was not required to provide fact-finding as to its reasons for the sentence. It stated both that it had considered R.C. 2929.11 and that it had reviewed all pertinent information, including the reports of both Dr. Rindsberg and Dr. Afsarifard, which informed the court of Herbert's mental health concerns.

{¶16} Herbert provides no legal authority for the proposition that his anxiety and depression should preclude the court from sentencing him to serve a jail term. Herbert also fails to provide specific arguments regarding how these conditions would "cause an undue burden on the staff at the Lake County Jail." Trial counsel also failed to present an argument to support such a conclusion at the sentencing hearing, but rather argued only that jail would negatively impact Herbert.

{¶17} Herbert argues that Dr. Afsarifard's report "can be interpreted to mean that a period of incarceration for Mr. Herbert may cause an undue burden [o]n the jail." Herbert fails to point to even one example of a statement before the trial court, either in this report or otherwise, that showed his mental health conditions would place an undue burden on the jail. In fact, when Dr. Afsarifard's report was mentioned at sentencing, it was discussed by defense counsel only in relation to Herbert's anxiety and depression, a fact not in dispute, and the impact of incarceration on Herbert, not the jail or government. A review of Dr. Afsarifard's report is consistent with defense counsel's characterization; the report indicates that Herbert may be negatively impacted by a jail sentence. Also, while Herbert was ordered to attend counseling by the court, there is no indication that this would interfere with serving his twenty-day jail term or would otherwise create a burden on government resources.

{¶18} We emphasize that the trial court was merely required to "consider" the undue burden factor. Macko, 2017-Ohio-253, at ¶ 75. The trial court was aware of Herbert's mental health conditions, the reports of both doctors, and the pertinent statutory language, and complied with the requirement that the principles of sentencing, including the burden on the government, be "considered."

{¶19} It was also proper for the trial court to weigh any potential burden on the government against the other factors that it clearly considered and that are outlined above. This court has held that "while resource and burdens to the government may be a relevant sentencing criterion, the statute 'does not require trial courts to elevate resource conservation above the seriousness and recidivism factors.'" (Citation omitted.) State v. Bryant, 11th Dist. Trumbull No. 2015-T-0100, 2016-Ohio-4928, ¶ 62, quoting State v. Anderson, 11th Dist. Geauga No. 2011-G-3044, 2012-Ohio-4203, ¶ 36.

{¶20} "'Only if the record affirmatively shows that the trial court failed to consider the principles and purposes of sentencing will a sentence be reversed on this basis, unless the sentence is strikingly inconsistent with relevant considerations.'" (Citation omitted.) State v. Demeo, 11th Dist. Ashtabula No. 2013-A-0067, 2014-Ohio-2012, ¶ 29; State v. Massena, 11th Dist. Ashtabula No. 2016-A-0006, 2016-Ohio-7157, ¶ 17. The record does not affirmatively show that the trial court failed to consider the purposes and principles of sentencing, nor does Herbert demonstrate that his sentence is "strikingly inconsistent" with relevant considerations.

{¶21} The sole assignment of error is without merit.

{¶22} For the foregoing reasons, Herbert's sentence for ten counts of Falsification in the Lake County Court of Common Pleas is affirmed. Costs to be taxed against appellant. CYNTHIA WESTCOTT RICE, P.J., COLLEEN MARY O'TOOLE, J., concur.


Summaries of

State v. Herbert

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
Jun 30, 2017
2017 Ohio 5652 (Ohio Ct. App. 2017)
Case details for

State v. Herbert

Case Details

Full title:STATE OF OHIO, Plaintiff-Appellee, v. JOSHUA M. HERBERT…

Court:COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

Date published: Jun 30, 2017

Citations

2017 Ohio 5652 (Ohio Ct. App. 2017)