State v. Robinson , 2013 Ohio 2698 ( 2013 )

[Cite as State v. Robinson, 2013-Ohio-2698.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99080
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL ROBINSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-557786
BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: June 27, 2013
ATTORNEY FOR APPELLANT
Brian A. Smith
Brian A. Smith, Attorney at Law
503 West Park Avenue
Barberton, Ohio 44203
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jennifer L. O’Malley
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant Michael Robinson (“Robinson”) appeals the trial court’s
judgment sentencing him to 24 months in prison. We find no merit to the appeal and
affirm.
{¶3} Robinson was charged with one count of domestic violence in violation of
R.C. 2919.25 and one count of intimidation of a crime victim or witness in violation of
R.C. 2921.04(B). He pleaded guilty to one count of domestic violence, a third-degree
felony, and the court sentenced him to 24 months in prison. This appeal followed.
{¶4} In his sole assignment of error, Robinson argues the trial court acted contrary
to law and abused its discretion when it sentenced him to a 24-month prison term. He
contends the court failed to consider the factors enumerated in R.C. 2929.11 and 2929.12
when it imposed the sentence.
{¶5} We review felony sentences in accordance with the standard of review set
forth in R.C. 2953.08(G)(2), which provides in relevant part:
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 re-sentencing. 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:
***
(b) That the sentence is otherwise contrary to law.
{¶6} Therefore, we presume the sentence imposed by the trial court is correct
absent evidence that it is clearly and convincingly contrary to law. State v. Sherman, 8th
Dist. No. 97840, 2012-Ohio-3958, ¶ 14. “Clear and convincing evidence is more than a
mere preponderance of the evidence; ‘it is that evidence which will provide in the mind of
the trier of facts, a firm belief or conviction as to the facts sought to be established.’”
State v. Patterson, 8th Dist. No. 84803, 2005-Ohio-2003, ¶ 4, quoting State v. Garcia,
126 Ohio App. 3d 485, 710 N.E.2d 783 (12th Dist.1998).
{¶7} Robinson argues his sentence is contrary to law because the trial court failed
to consider the principles and purposes of felony sentencing as set forth in R.C. 2929.11,
as well as the seriousness and recidivism factors provided in R.C. 2929.12.
{¶8} R.C. 2929.11(A) provides that a sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing: (1) “to
protect the public from future crime by the offender and others,” and (2) “to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes.” The sentence imposed shall also be “commensurate with and not demeaning
to the seriousness of the offender’s conduct and its impact on the victim, and consistent
with sentences imposed for similar crimes committed by similar offenders.” R.C.
2929.11(B).
{¶9} In addition, the sentencing court must consider the seriousness and recidivism
factors set forth in R.C. 2929.12 in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. 2929.11. State v. Arnett, 88 Ohio
St.3d 208, 213, 2000-Ohio-302, 724 N.E.2d 793. R.C. 2929.12 provides a non-exhaustive
list of factors a trial court must consider when determining the seriousness of the offense
and the likelihood that the offender will commit future offenses. State v. Samuels, 8th
Dist. No. 88610, 2007-Ohio-3904, ¶ 14. R.C. 2929.12(A) also permits the court to
consider “any other factors that are relevant to achieving the purposes and principles of
sentencing.” Id.
{¶10} Pursuant to R.C. 2929.13(C), third-degree felonies carry no presumption for
either prison or community control. It allows the trial court to impose a sentence that
furthers the purposes and principles of felony sentencing set forth in R.C. 2929.11 after
considering all the seriousness and recidivism factors listed in R.C. 2929.12.
{¶11} Robinson’s 24-month prison term falls within the authorized range of prison
terms set forth in R.C. 2929.14(A)(3)(b) for third-degree felonies. At the sentencing
hearing, the court acknowledged that it considered Robinson’s presentence investigation
report, the information conveyed at the plea hearing, a letter from the victim, and the
statements made in court at the sentencing hearing. The state reminded the court of
Robinson’s extensive criminal record, including a prior conviction for domestic violence
against the same victim. The victim stated that she and her daughter are fearful of
Robinson because he is violent.
{¶12} Defense counsel argued that prison would not help Robinson overcome the
problems underlying his criminal behavior. When she asserted that a study by a Dr.
Philip Zimbardo suggests that prison worsens a defendant’s criminal propensities, the
court asked whether Dr. Zimbardo offered an alternative to prison that would protect the
public, deter future crime, and rehabilitate the defendant. Defense counsel did not
identify any alternative to prison that would achieve the purposes and principles of felony
sentencing.
{¶13} Prior to imposing sentence, the court stated:
Mr. Robinson, I’d like to inform you that in deciding the following
sentence, I’ve considered the written presentence report that I’ve already
mentioned, I’ve considered the information conveyed to me orally during
the plea hearing on September 11, which was less than two weeks ago, and
I’ve certainly considered all the information conveyed orally here today.
Besides those things, I’ve taken into account the sentencing statutes in the
State of Ohio.
Further, a court speaks through its journal entries. State v. Miller, 127 Ohio St. 3d 407,
2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. In its journal entry of the sentence, the court
states: “The court considered all factors of the law. The court finds that prison is
consistent with the purpose of R.C. 2929.11.” Thus, the record demonstrates that the
court considered the applicable factors and principles contained in R.C. 2929.11 and
2929.12, including recidivism factors and the need to punish the offender. Accordingly,
we find that the trial court’s decision to sentence Robinson to a 24-month prison term is
not contrary to law.
{¶14} The sole assignment of error is overruled.
{¶15} 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 out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR