Opinion
No. 107524
05-09-2019
STATE OF OHIO, Plaintiff-Appellee, v. ROBERT THOMPSON, Defendant-Appellant.
Appearances: Allison S. Breneman, for appellant. Michael C. O'Malley, Cuyahoga County Prosecutor, and Jonathan Block, Assistant County Prosecutor, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-16-609698-A and CR-18-629135-A Appearances: Allison S. Breneman, for appellant. Michael C. O'Malley, Cuyahoga County Prosecutor, and Jonathan Block, Assistant County Prosecutor, for appellee. FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Robert Thompson ("appellant"), brings the instant appeal challenging the trial court's sentence. Specifically, appellant argues that the trial court erred in imposing consecutive sentences. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶ 2} The instant matter arose from events that occurred on May 23, 2018, when appellant's female friend suffered a drug overdose. Appellant and his friend were in a hotel room in Garfield Heights, Ohio. Apparently, appellant's friend began overdosing on drugs. Appellant then asked a hotel employee at the hotel's front desk to call 911 for an emergency. Appellant did not state the specific reason for the emergency.
{¶ 3} Police officers responded to the emergency and were directed to the hotel room used by appellant and his friend. Officers found the hotel room empty, observed the shower faucet running in the bathroom, and observed drugs and drug paraphernalia scattered throughout the hotel room. Officers also observed a trail of water from the shower leading out of the hotel room and into the hallway.
{¶ 4} Officers then reviewed the hotel security video and observed a male, later identified as appellant, carrying a female out of the hotel room. The video then shows appellant place the female into a vehicle parked in the hotel parking lot. This female was later identified as appellant's female friend. Thereafter, appellant is observed driving off in the vehicle.
{¶ 5} As officers were continuing their investigation at the hotel, appellant returned to the hotel and spoke with officers. At first, appellant was not forthright regarding his involvement with the female, and denied that he carried the female out of the hotel. However, appellant eventually admitted to his involvement and stated that he dropped the female off at a friend's house, but would not provide police the address.
{¶ 6} Police then began checking local hospitals believing that the female suffered a drug overdose. Police were able to determine that this female was left on a random tree lawn in West Cleveland. This female was discovered by an innocent bystander, without a shirt, leaning up against a tree.
{¶ 7} Officers later spoke with the female at the hospital, and the female provided appellant's identity to officers and a description of appellant's vehicle.
{¶ 8} As a result, appellant was charged in a four-count indictment in Cuyahoga C.P. No. CR-18-629135-A for the following offenses: Count 1, abduction, in violation of R.C. 2905.02(A)(1), a third-degree felony; Count 2, tampering with evidence, in violation of R.C. 2921.12(A)(1), a third-degree felony; Count 3, obstructing official business, in violation of R.C. 2921.31(A), a fifth-degree felony; and Count 4, misconduct at an emergency, in violation of R.C. 2917.13(A)(1), a first-degree misdemeanor.
{¶ 9} On August 8, 2018, after plea negotiations, appellant pled guilty to an amended indictment. The state nolled Counts 1 and 2, and appellant pled guilty to Counts 3 and 4. On the day of appellant's plea, the trial court proceeded to sentencing and sentenced appellant to a one-year prison term on Count 3 and a six-month jail term on Count 4, to be served concurrently.
{¶ 10} Appellant was on probation throughout the duration of the above criminal proceedings in Cuyahoga C.P. No. CR-16-609698-A, on one count of drug trafficking, a fifth-degree felony. As a result of appellant's guilty plea in CR-18-629135-A, appellant was found to be in violation of his probation in CR-16-609698-A. The trial court then sentenced appellant in CR-16-609698-A and imposed a prison sentence of one year, to be served consecutive to the one-year prison term in CR-18-629135-A.
{¶ 11} Appellant thereafter brought the instant appeal and assigns a sole assignment of error for our review.
I. The trial court erred in imposing consecutive sentences.
II. Law and Analysis
A. Trial Court's Sentence
{¶ 12} In appellant's sole assignment of error, he argues that the trial court erred in imposing consecutive sentences. In addition, appellant also argues that the trial court's imposition of a maximum sentence was contrary to Ohio's felony sentencing guidelines.
{¶ 13} We review felony sentences under the standard set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may overturn the imposition of consecutive sentences where the court "clearly and convincingly" finds that (1) "the record does not support the sentencing court's findings under R.C. 2929.14(C)(4)," or (2) "the sentence is otherwise contrary to law."
1. Consecutive Sentences
{¶ 14} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, the trial court must find that consecutive sentences are (1) necessary to protect the public from future crime or to punish the offender, (2) that such sentences would not be disproportionate to the seriousness of the conduct and to the danger the offender poses to the public, and (3) that one of the following applies:
(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 postrelease 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.
{¶ 15} Conformity with R.C. 2929.14(C)(4) requires the trial court to make the statutory findings at the sentencing hearing, which means that "'the [trial] court must note that it engaged in the analysis' and that it 'has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.'" State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). To this end, a reviewing court must be able to ascertain from the record evidence to support the trial court's findings. Bonnell at ¶ 29. "A trial court is not, however, required to state its reasons to support its findings, nor is it required to recite verbatim the statutory language, 'provided that the necessary findings can be found in the record and are incorporated in the sentencing entry.'" State v. Sheline, 8th Dist. Cuyahoga No. 106649, 2019-Ohio-528, ¶ 176, quoting Bonnell at ¶ 37.
{¶ 16} Appellant concedes that the trial court placed the appropriate consecutive sentence findings on the record, but nevertheless states that "there was no factual basis for running his probation case consecutive as the new charges were the only violation of probation, and a maximum sentence on the new charges were more than adequate to punish him." Appellant's brief at 6.
{¶ 17} In our review of the trial court proceedings, we find that the record reflects that the trial court complied with R.C. 2929.14(C)(4) in imposing consecutive sentences. In particular, we note that the trial court noted appellant's lengthy criminal record. The trial court also noted the following prior to imposing a sentence on appellant's probation violation:
Pursuant to 2929.14, [a] consecutive sentence is necessary to protect the public from future crime. That's evident. And it's also necessary to punish and not disproportionate to the seriousness of your conduct.(Tr. 48-49.) In accordance with R.C. 2929.14(C)(4), the trial court found that consecutive sentences were necessary to protect the public from future crime by appellant and that such sentences would not be disproportionate to the seriousness of appellant's conduct and to the danger appellant poses to the public. Further, the trial court found that R.C. 2929.14(C)(4)(a) applied, noting that appellant committed these offenses while on community control sanctions. The trial court also found that (c) applied, noting appellant's lengthy criminal record.
And while on community control sanctions, you committed this offense, and your criminal history demonstrates consecutive sentences are necessary to protect the public.
{¶ 18} Therefore, to the extent that appellant argues that these findings are not supported by the record, we disagree. The trial court considered the statements of the prosecutor, appellant's counsel, and appellant. The trial court noted that appellant committed these crimes while on community control. The trial court also outlined appellant's lengthy criminal history that dated back to 1991.
{¶ 19} Based on these facts, we cannot say that the record does not support the trial court's findings. The trial court made the requisite finding during the probation violation portion of the sentencing hearing, which was after the imposition of its sentence in CR-18-629135-A. After sentencing appellant on CR-18-629135-A, the trial court then proceeded to find appellant to be in violation of his probation in CR-16-609698-A, and thereafter sentenced appellant on the probation case, making the necessary findings pursuant to R.C. 2929.14(C)(4). As such, the trial court did not err in imposing consecutive sentences.
{¶ 20} Because the trial court made the requisite consecutive sentence findings at the sentencing hearing and also incorporated its findings into its sentencing journal entries as required by Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, appellant's arguments in this regard are without merit.
2. Purposes and Principles
{¶ 21} Appellant also appears to argue that the trial court failed to comply with the purposes and principles of sentencing as required by R.C. 2929.11 and 2929.12. In our review of the record, we disagree.
Appellant was sentenced on one felony count and one misdemeanor count; however, appellant's argument focuses on R.C. 2929.11 and 2929.12, governing felony sentences, rather than R.C. 2929.21 and 2929.22, governing misdemeanor sentences. --------
{¶ 22} As an initial matter, we note that R.C. 2953.08(A)(2) specifically provides that a defendant may appeal as a matter of right if sentenced to prison for a felony of the fourth- or fifth-degree pursuant to R.C. 2929.13(B). However, subsection (A)(2) states that:
If the court specifies that it found one or more of the factors in division (B)(1)(b) of section 2929.13 of the Revised Code to apply relative to the defendant, the defendant is not entitled under this division to appeal as a matter of right the sentence imposed upon the offender.
{¶ 23} In the instant matter, the trial court found that appellant committed the offense of obstructing official business, a fifth-degree felony, while serving community control sanctions for drug trafficking, a fifth-degree felony. Additionally, the trial court found that appellant had previously served 13 prison terms. Therefore, these particular findings are consistent with R.C. 2929.13(B)(1)(b)(x) and (xi), which state that:
(x) The offender at the time of the offense was serving, or the offender previously had served, a prison term.
(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.
{¶ 24} Thus, because the trial court made the required statutory findings to sentence appellant to a prison term, and appellant did not file a motion for leave, he is not entitled to an appeal of his felony sentences. State v. Brown, 8th Dist. Cuyahoga No. 107990, 2019-Ohio-1448, State v. Gibson, 8th Dist. Cuyahoga No. 106696, 2018-Ohio-5034, ¶ 9, citing State v. Torres, 8th Dist. Cuyahoga No. 104905, 2017-Ohio-938, ¶ 8, and State v. Payne, 8th Dist. Cuyahoga No. 84770, 2005-Ohio-3578, ¶ 7. As such, we cannot review appellant's individual felony sentences in this matter. See id.
{¶ 25} The trial court also sentenced appellant on a first-degree misdemeanor, misconduct at an emergency. We note that there is no statute analogous to R.C. 2953.08, which would similarly prohibit this court's review of appellant's misdemeanor sentence.
Misdemeanor sentencing is governed by R.C. 2929.21 through 2929.28. N. Olmsted v. Rock, 8th Dist. Cuyahoga No. 105566, 2018-Ohio-1084, ¶ 32. In imposing a sentence for a misdemeanor conviction, a trial court must consider the overriding purposes of misdemeanor sentencing, "to protect the public from future crime by the offender and others and to punish the offender," set forth in R.C. 2929.21, and the factors set forth in R.C. 2929.22(B) regarding the appropriate method of achieving those purposes. Lakewood v. Dobra, 8th Dist. Cuyahoga No. 106001, 2018-Ohio-960, ¶ 9.State v. Gaines, 8th Dist. Cuyahoga No. 106784, 2019-Ohio-639, ¶ 20-21.
A trial court enjoys broad discretion in imposing sentence on a misdemeanor offense. Dobra at ¶ 8, citing Cleveland v. Meehan, 8th Dist. Cuyahoga No. 100202, 2014-Ohio-2265, ¶ 7. Accordingly, this court reviews a trial court's misdemeanor sentence for an abuse of discretion. Cleveland v. Peoples, 8th Dist. Cuyahoga No. 100955, 2015-Ohio-674, ¶ 13. "A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary." Id., citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 26} A trial court's failure to consider the misdemeanor sentencing factors constitutes an abuse of discretion. Maple Hts. v. Sweeney, 8th Dist. Cuyahoga No. 85415, 2005-Ohio-2820, ¶ 7. A trial court is not obligated to make factual findings on the record with regard to the misdemeanor sentencing factors. Id. at ¶ 8. "Indeed, 'when a misdemeanor sentence is within the statutory limits, the trial court is presumed to have considered the required factors [under R.C. 2929.22], absent a showing to the contrary by the defendant."' Dobra at ¶ 10, quoting Sweeney at ¶ 7.
{¶ 27} After thoroughly reviewing the record, we do not find that the trial court abused its discretion in imposing the six-month jail sentence. The six-month sentence imposed on the misconduct at an emergency count was within the permissible statutory range under R.C. 2929.24(A) for first-degree misdemeanors. Additionally, the trial court's August 9, 2017 sentencing journal entry provides, in relevant part, "the court considered all required factors of the law." Moreover, the record also reflects that the trial court did consider the sentencing factors under R.C. 2929.21 and 2929.22(B) in imposing appellant's sentence.
{¶ 28} As such, we find no basis upon which to conclude that the trial court erred or abused its discretion in imposing the six-month jail sentence.
{¶ 29} Accordingly, appellant's sole assignment of error is overruled.
{¶ 30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
FRANK D. CELEBREZZE, JR., JUDGE SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR