Opinion
Case No. 2019 CA 00012
12-24-2019
STATE OF OHIO Plaintiff-Appellee v. LESLIE J. McGUIRE Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee BILL HAYES Licking County Prosecutor 20 South Second Street 4th Floor Newark, Ohio 43055 For Defendant-Appellant JAMES A. ANZELMO Anzelmo Law 446 Howland Drive Gahanna, Ohio 43230
JUDGES: Hon. William B. Hoffman, P.J Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 18 CR 853 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee BILL HAYES
Licking County Prosecutor
20 South Second Street
4th Floor
Newark, Ohio 43055 For Defendant-Appellant JAMES A. ANZELMO
Anzelmo Law
446 Howland Drive
Gahanna, Ohio 43230 Hoffman, P.J.
{¶1} Appellant Leslie J. McGuire appeals the judgment entered by the Licking County Common Pleas Court convicting him of vandalism (R.C. 2909.05(B)(1)) and sentencing him to one year incarceration, to be served consecutively to the one year sentence imposed for theft in an unrelated case, and consecutively to 16 months incarceration imposed for violation of post-release control Appellant was under at the time of the offense. Appellee is the state of Ohio.
The State filed an untimely response brief in this case, which has not been considered by this Court. --------
STATEMENT OF THE FACTS AND CASE
{¶2} In the instant case, Newark Police responded to a complaint of vandalism at Goldies, located on Fifth Avenue in Newark, Ohio. The owner of the business reported a skills machine had been damaged and the money removed from the machine. Appellant was identified by the owner as the person responsible. Surveillance video showed Appellant using a tool to pry open the machine. Appellant took the money which fell from the machine, totaling $909, and left the building. In addition to the amount of money taken from the machine, Appellant caused $1082 in damage to the machine.
{¶3} Appellant also was charged with theft from Rural King in Heath, Ohio, in Case Number 18 CR 936. Appellant entered the store and filled a cart with power tools and clothing. He attempted to exit the store through a rear door without paying for the items in the cart. Finding the door secured, he left the cart in an aisle and exited through an unlocked door in a maintenance area. Approximately one hour later, Appellant retrieved the cart and exited through the previously-discovered unlocked maintenance door. The value of items stolen was $3,144.76.
{¶4} Appellant entered a guilty plea to both charges. As part of the plea agreement, the parties jointly recommended "a total of 12 months ODRC between this case and 18 CR 936, State does not seek to impose any PRC time." Admission of guilt form, February 21, 2019.
{¶5} The case proceeded to a change of plea hearing. After convicting Appellant in both cases upon his plea of guilty, the trial court sentenced Appellant to one year on each conviction, to be served consecutively, plus sixteen months incarceration for violation of post-release control, to be served consecutively.
{¶6} It is from the judgment of conviction and sentence in Case No. 18 CR 853 Appellant prosecutes this appeal, assigning as error:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY REJECTING THE JOINTLY RECOMMENDED SENTENCE THE DEFENSE AND PROSECUTION MADE PURSUANT TO MCGUIRE'S PLEA BARGAIN.
II. THE TRIAL COURT UNLAWFULLY ORDERED MCGUIRE TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
I.
{¶7} In his first assignment of error, Appellant argues the trial court abused its discretion in rejecting the joint sentencing recommendation.
{¶8} A trial court does not err by imposing a sentence greater than the sentence which formed the inducement for the defendant to plead guilty, when the trial court forewarns the defendant of the applicable penalties, including the possibility of imposing a greater sentence than that recommended by the prosecutor. State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6 (2005). A trial court is not bound by a plea agreement unless there has been active participation by the trial court in the agreement. State v. Hartrum, 5th Dist. Licking No. 2014 CA 00106, 2015-Ohio-3333.
{¶9} There is nothing in the record to suggest the court was an active participant in the plea agreement. Prior to accepting the plea, the trial court informed Appellant the maximum sentence he could impose would be a term of two years in the state penitentiary. Tr. 12. Appellant responded he understood. The court reiterated this was the maximum possible penalty, and Appellant again stated he understood. The court further informed Appellant any time remaining on his post-release control could be imposed and ordered to be served consecutively with the sentence he received in this case. Tr. 14. Appellant again indicated he understood, and entered his plea of guilty to the charge.
{¶10} Because the trial court did not participate actively in the plea agreement and informed Appellant he could receive a greater sentence than the sentence reflected in the plea form, we find the trial court was free to impose a sentence greater than the sentence recommended by the prosecutor. Appellant has not demonstrated error in the trial court's decision to reject the recommended sentence.
{¶11} The first assignment of error is overruled.
II.
{¶12} In his second assignment of error, Appellant argues the court erred in imposing consecutive sentences. He concedes the court made the findings required by R.C. 2929.14(C)(4) to impose consecutive sentences, but argues there was nothing in the record to support the finding consecutive sentences are not disproportionate to Appellant's conduct. He argues the record does not demonstrate the skills machine vandalized by Appellant was permanently damaged, and he expressed remorse for his actions.
{¶13} 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.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶14} Our standard of review of sentencing is set forth in R.C. 2953.08(G)(2):
(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
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. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶15} The trial court stated as follows at the sentencing hearing:
THE COURT: Mr. McGuire, I don't have to - - you understand I'm disappointed in you.
DEFENDANT: And I'm disappointed in myself, Your Honor.
THE COURT: Well, you should be, and I know you are. You always have been whenever you've been in court. And, Mr. McGuire, you know, I feel like I've known you most of my life and your criminal history in this count [sic] alone is terrible. I would think that your - - you get some type of Social Security Income or Disability Income so you shouldn't have to steal to - -
DEFENDANT: I tried.
THE COURT: - - make some money.
DEFENDANT: I was doing good. I was on medication and I got introduced to that gambling game and quickly got addicted to that and just fell off.
THE COURT: Well, there's one thing about doing that. There's, you know - -
DEFENDANT: I got discouraged when I got denied.
THE COURT: You might have only gone to eighth grade but even you understand you can't be breaking into coin machines and stealing stuff.
DEFENDANT: I know that.
THE COURT: I'm sure you've been convicted of that before I would guess. I'm sure you have based on the charges in Muni Court that you're currently being held on, and I'm not sure you're entitled to any days of jail credit since you have a hold from some other place I can't even tell. You've got an APA holder on you and you've been - - while you were released served some kind of sentence for theft in Muni Court when you got picked up for this so I'm not sure you get any jail credit at all.
You're currently on supervision for a robbery from another county, let alone, good Lord, the aggravated robbery, thefts, trafficking charges from this county over a couple decades anyway. You know better.
DEFENDANT: Sad story.
THE COURT: It's terrible, you know, and - - and you're stealing from people on South Fifth Street, for God sake, that have probably known you their whole life, too.
Mr. McGuire, on each of the two counts, I'll impose terms of one year in the state penitentiary and I'll order they run consecutively with each other for a total term of two years at the state penitentiary. I'd find that consecutive sentences are necessary to protect the public, punish you, not disproportionate to the crimes you've committed, and are necessitated by your criminal history to which we've referred here today and which takes up at least a whole page
in the Muni Court website, if not more; and again, in addition to your PRC from another county; and again, you know, Municipal Court website here would only cover our county.
In addition, I'll impose 16 months of PRC time which I take to be all the PRC time you have left, and it will also run consecutive for a three year and - - I think it's three year and six month PRC time.
{¶16} Tr. 18-20.
{¶17} In addition to the statement of the court concerning Appellant's lengthy criminal history, the record demonstrates Appellant did $1082 in damage to the skills machine in the instant case. In Case No. 18-CR-936, Appellant took $3,144.76 in items from Rural King, going back to the store after his first attempt to steal the items was thwarted by a locked door. In addition, Appellant was on post-release control at the time the incidents occurred. We find the imposition of consecutive sentences was not contrary to law. We further find the record supports the court's findings under R.C. 2929.14(C)(4).
{¶18} The second assignment of error is overruled.
{¶19} The judgment of the Licking County Common Pleas Court is affirmed. By: Hoffman, P.J. Wise, J. and Delaney, J. concur