State v. Legion , 2012 Ohio 1045 ( 2012 )

[Cite as State v. Legion, 2012-Ohio-1045.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96894
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TANYA LEGION
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-546292
BEFORE: Boyle, P.J., Sweeney, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 15, 2012
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ATTORNEY FOR APPELLANT
Brooke Deines
Law Offices of Brooke Deines, LLC
P.O. Box 91426
Cleveland, Ohio 44101
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marcus L. Wainwright
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Tanya Legion, appeals her prison sentence, arguing
that the trial court failed “to properly consider the factors enumerated in R.C. 2929.12
when imposing a prison term.” We find her single assignment of error unpersuasive and
affirm.
Procedural History and Facts
{¶2} In January 2011, Legion and her co-defendant, Paul Rabb, were indicted on
two counts: (1) trafficking, in violation of R.C. 2925.03(A)(1); and (2) trafficking, in
violation of R.C. 2925.03(A)(2). Both counts carried three forfeiture clauses relating to
a scale, $10 in cash, and packaging material. The forfeiture involving the $10
specifically identified Paul Rabb as the sole owner or possessor of the property.
{¶3} According to the state, on January 13, 2010, Legion approached a
confidential reliable informant (“CRI”) and led the CRI to the co-defendant, Paul Rabb,
who had marijuana in his possession. Through Legion’s assistance, Rabb sold 2.55
grams of marijuana to the CRI.
{¶4} Legion eventually pled no contest to the first two charges of the indictment,
and the trial court found her guilty on two counts of drug trafficking and the attached
forfeitures. Following a presentence investigation, the trial court merged the two counts
and imposed a sentence of nine months in prison on Count 1. The trial court’s journal
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entry memorializing Legion’s conviction and sentence, dated June 7, 2011, stated the
following with respect to the forfeitures:
“Defendant to forfeit to the state: scale, packaging material.”
{¶5} From this order, Legion appeals, raising one assignment of error challenging
her sentence.
Final Appealable Order
{¶6} Before we address the substance of Legion’s appeal, we first must consider
this court’s jurisdiction to hear the appeal. Because the June 7, 2011 journal entry did
not dispose of the forfeiture-of-money specification or identify the forfeited items with
specificity, this court ordered the parties to show cause in writing whether the June 7th
sentencing entry is a final appealable order. After consideration of the arguments and in
light of recent announcements of the Ohio Supreme Court, we find that the journal entry
is a final appealable order.
{¶7} Initially, we note that the forfeiture-of-money specification does not pertain
to Legion. The indictment specifically identifies co-defendant Paul Raab as the offender
who is to forfeit the money. Because this specification does not apply to Legion, it need
not be addressed in the judgment entry.
{¶8} The critical issue is whether the journal entry’s failure to identify the items
to be forfeited with specificity precludes the judgment from being a final appealable
order. Legion argues that it is a not a final appealable order based on this court’s
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decisions in State v. Bohanon, 8th Dist. No. 95907, 2011-Ohio-4108, and State v. Jones,
8th Dist. No. 95961, 2011-Ohio-3984, which required the trial court to describe the
property to be forfeited with specificity before the judgment would be considered final
and appealable. These decisions, however, relied on the Ohio Supreme Court’s decision
in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and strictly
analyzed the requirements of Crim.R. 32(C) in determining what constitutes a final
appealable order.
{¶9} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,
paragraph one of the syllabus, however, the Ohio Supreme Court modified its decision in
Baker, recognizing the following:
{¶10} “A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s
signature, and (4) the time stamp indicating the entry upon the journal by the clerk.”
{¶11} The Lester court limited Baker, noting that it should not stand for a strict
application of Crim.R. 32(C) that requires the journal entry to describe the particular
manner of conviction. Id. at ¶ 9-12. Instead, the Lester court recognized that a
judgment entry need only disclose the fact of conviction to be final and appealable. Id.
at ¶ 11. In reaching this conclusion, the court distinguished between the “substantive
provisions” of Crim.R. 32(C) and those that are merely a “matter of form.” Id. at ¶ 12.
Whereas the omission of a substantive provision precludes a finding of a final appealable
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order, the same cannot be said regarding a provision that is a “matter of form.” Id. As
stated by the court: “[T]he fact that a defendant may be entitled to a revised order setting
forth an inadvertently omitted term that is required by Crim.R. 32(C) as a matter of form
does not prevent an original order that conforms to the substantive requirements of
Crim.R. 32(C) from being final.” Id. at ¶ 16.
{¶12} Applying Lester, we find that the June 7, 2011 journal entry is a final
appealable order because the entry contains all the necessary substantive provisions for a
final judgment. In contrast, the failure of the trial court to identify the items forfeited
with more specificity is a “matter of form” that can be raised as an error in a direct appeal.
See State ex rel. Jones v. Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192(finding that journal entry was a final appealable order despite not disposing of every
firearm specification that defendant was found guilty; court held that defect could be
raised in a direct appeal). It does not, however, affect the finality of the judgment entry.
{¶13} Accordingly, having found that we have jurisdiction to hear this appeal, we
now turn to the merits of Legion’s appeal.
Sentencing
{¶14} In her single assignment of error, Legion argues that the trial court failed to
properly consider the seriousness of her crime and her likelihood of recidivism. She
contends that these factors weighed against a prison sentence, and therefore the trial court
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abused its discretion in imposing a nine-month prison sentence. We disagree.
{¶15} Appellate courts must apply a two-step approach when reviewing a
defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 4.
First, they must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether
the sentence is clearly and convincingly contrary to law. If this first prong
is satisfied, the trial court’s decision shall be reviewed under an
abuse-of-discretion standard. Id.{¶16} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the
Ohio Supreme Court held that trial courts “have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or give
their reasons for imposing maximum, consecutive, or more than the minimum sentences.”
Id. at ¶ 100. See also State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768 (upholding Foster).
{¶17} The Supreme Court explained in Kalish that “[a]lthough Foster eliminated
mandatory judicial fact-finding for upward departures from the minimum, it left intact
R.C. 2929.11 and 2929.12. The trial court must still consider these statutes.” Id. at ¶
13, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶18} R.C. 2929.11 and 2929.12 “are not fact-finding statutes”; instead, they serve
as an overarching guide for trial judges to consider in fashioning an appropriate sentence.
Kalish at ¶ 17.
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In considering these statutes in light of Foster, the trial court has full
discretion to determine whether the sentence satisfies the overriding
purpose of Ohio’s sentencing structure. Moreover, R.C. 2929.12 explicitly
permits a trial court to exercise its discretion in considering whether its
sentence complies with the purposes of sentencing. Id.{¶19} Thus, “assuming the trial court has complied with the applicable rules and
statutes, the exercise of its discretion in selecting a sentence within the permissible
statutory range is subject to review for abuse of discretion pursuant to Foster.” Id.{¶20} In Kalish, the Supreme Court also made clear that even after Foster, “where
the trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it
is presumed that the trial court gave proper consideration to those statutes.” Id. at fn. 4,
citing State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the
syllabus.
{¶21} R.C. 2929.11(A) provides that when a trial court sentences an offender for a
felony conviction it must be guided by the “overriding purposes of felony sentencing.”
Those purposes are “to protect the public from future crime by the offender and others
and to punish the offender.” R.C. 2929.11(B) states that a felony sentence “must be
reasonably calculated to achieve the purposes set forth under R.C. 2929.11(A),
commensurate with and not demeaning to the seriousness of the crime and its impact on
the victim, and consistent with sentences imposed for similar crimes committed by similar
offenders.” And R.C. 2929.12 sets forth factors concerning the seriousness of the
offense and recidivism factors.
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{¶22} In this case, Legion acknowledges that her sentence was not contrary to law;
indeed, her sentence was within the statutory range for the offense. She contends,
however, that the trial court failed to take into consideration mitigating factors, including
the fact that she did not initiate the offense, she did not cause any physical harm, she has
close family ties in the community, and that she desires help for her drug addiction.
{¶23} After reviewing the record, we find Legion’s arguments unpersuasive.
Aside from stating that it considered the guidelines set forth in the sentencing statutes, the
trial specifically highlighted those factors that it believed indicated that Legion was likely
to reoffend and why a prison term was necessary, i.e., her numerous past convictions and
failure to comply with sanctions imposed in the past. Notably, the trial court was
sensitive to Legion’s addiction, recommending “transitional control” after she served
three months of her nine-month prison term.
{¶24} Accordingly, we find that the trial court acted well within its discretion in
imposing the prison term given. Legion’s sole assignment of error is overruled.
{¶25} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
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for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
SEAN C. GALLAGHER, J., CONCUR