State v. Lanning , 2020 Ohio 2863 ( 2020 )

[Cite as State v. Lanning, 2020-Ohio-2863.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-19-024
Appellee Trial Court No. 18 CR 120
v.
Caleb Lanning DECISION AND JUDGMENT
Appellant Decided: May 8, 2020
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Caleb Lanning, appeals the November 6, 2018 judgment of the
Ottawa County Court of Common Pleas sentencing him to a 54-month aggregate prison
term following his convictions for burglary and attempted burglary. For the reasons that
follow, we affirm the trial court’s judgment.
I. Background
{¶ 2} On May 17, 2018, Caleb Lanning was indicted on a total of 43 felony counts
including five counts of robbery with four counts including a firearm specification; six
counts of vandalism each including a firearm specification; one count of theft with a
firearm specification; two counts of attempted burglary with each including a firearm
specification; one count of attempted robbery; three counts of theft of a motor vehicle
with one count including a firearm specification; one count of breaking and entering;
three counts of grand theft; six counts of burglary; and four counts of attempted burglary.
{¶ 3} The charges arose from a series of events that occurred on March 25 and 26,
2018. The indictment alleges that on those evenings, Lanning and three other individuals
traveled through Portage and Catawba Townships in Ottawa County, Ohio, illegally
entering several structures. The structures included residences, homes under
construction, and at least one business. Lanning and his associates vandalized the
structures with spray paint, antifreeze, and laundry soap. They also destroyed contents in
the homes. Additionally, they stole televisions, firearms, and golf carts from several of
the residences. At his arraignment, Lanning entered a plea of not guilty to all 43 counts.
{¶ 4} On August 15, 2018, Lanning appeared for a change of plea hearing. In
exchange for a guilty plea to one count of burglary and one count of attempted burglary,
as well as Lanning’s cooperation as a witness in the state’s prosecution of his associates,
the state agreed to dismiss the remaining 41 charges. The trial court accepted Lanning’s
guilty plea and dismissed the remaining charges. The trial court ordered Lanning to
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participate in a presentencing interview and set the matter for a sentencing hearing on
November 2, 2018.
{¶ 5} At the sentencing hearing, Lanning acknowledged his review of the
presentence interview report. He objected to the narrative summary in the report, which
indicated that Lanning participated in the misconduct supporting all of the charges
against him. Lanning maintained that he only participated in the first night’s activities—
March 25, 2018—which involved conduct relating to the few residences underlying his
convictions and, he said, “a couple of others.” Lanning claimed he did not join the others
the following night, March 26, 2018, which is when the majority of the misconduct
occurred. Lanning also objected to the report stating that he had served a six-month
sentence as a juvenile with the Department of Youth Services. He informed the trial
court that this sentence was suspended and he was never physically incarcerated as a
juvenile.
{¶ 6} The state acknowledged that it “understand[s] Mr. Lanning indicates he was
not involved in all of [the burglaries], but they were all done within a relatively short
time.” The state further noted that Lanning participated in the theft of firearms,
substantial vandalism of the residences, and the theft of golf carts. The state also
referenced Lanning’s lengthy juvenile criminal history as support for the imposition of a
prison term. The state requested the trial court impose the maximum statutory prison
term for each conviction—36 months for burglary and 18 months for attempted
burglary—and order the sentences to be served consecutively.
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{¶ 7} Lanning’s counsel then addressed the trial court and acknowledged that
Lanning participated in the illegal entry into “a couple” of houses under construction, at
least one residence, and one business. He again disputed Lanning’s participation in all of
the conduct supporting the dismissed charges. Both Lanning and his counsel informed
the trial court that, despite his juvenile history and this conviction, that he now
understood the seriousness of his crimes and recognized that his behavior was the result
of his drug use. Lanning requested the trial court sentence him to a term in a community
based correctional facility where he could seek treatment for drug addiction rather than
impose a prison term.
{¶ 8} Following Lanning’s allocution, the trial court imposed a 36-month prison
term on his burglary conviction and an 18-month prison term on his attempted burglary
conviction. The trial court ordered the prison terms to be served consecutively for an
aggregate term of 54 months. The trial court’s judgment was memorialized in an entry
filed November 6, 2018.1
{¶ 9} Lanning failed to timely appeal the trial court’s judgment. On June 27,
2019, Lanning, proceeding pro se, filed a motion for leave to file a delayed appeal with a
notice of appeal pursuant to App.R. 5(A). Lanning’s notice of appeal identified
ineffective assistance of counsel for failing to timely appeal his sentence as the probable
1
Due to an error in the original judgment entry regarding the aggregate length of
Lanning’s prison term, the trial court entered a nunc pro tunc judgment entry on
December 13, 2018, correctly reflecting the 54-month term imposed at sentencing.
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issue for our review. We granted Lanning’s motion on August 12, 2019, and appointed
him appellate counsel. We also granted Lanning leave to file an amended notice of
appeal within 10 days of our order. The amended notice of appeal was filed on
August 21, 2019. Lanning asserts the following error for our review:
1. The court erred when it considered the bad acts of others in
giving appellant a maximum sentence.
II. Law and Analysis
{¶ 10} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings,
6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or
vacate and remand a judgment only if we clearly and convincingly find either of the
following: “(a) 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” or “(b) the
sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No.
S-15-025, 2016-Ohio-4759, ¶ 7, citing R.C. 2953.08(G)(2).
{¶ 11} Here, Lanning challenges the trial court’s imposition of the maximum
sentence for each of his two convictions—36 months for burglary and 18 months for
attempted burglary—as being “contrary to law” because the trial court improperly
considered the offenses of others rather than the “offender, the offense, or the victim” as
required by R.C. 2929.12. We disagree.
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{¶ 12} A felony sentence is “contrary to law” if the trial court failed to consider
the purposes of felony sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors set forth in R.C. 2929.12 when determining the appropriate sentence.
State v. Williams, 6th Dis. Lucas No. L-13-1083, 2014-Ohio-3624, ¶ 8; R.C. 2929.12.
But, “[w]hile the phrase ‘shall consider’ is used throughout R.C. 2929.12, the sentencing
court is not obligated to give a detailed explanation of how it algebraically applied each
seriousness and recidivism factor to the offender. Indeed, no specific recitation is
required.” State v. Brimacombe, 195 Ohio App. 3d 524, 2011-Ohio-5032, 960 N.E.2d
1042, ¶ 11 (6th Dist.). Moreover, we may vacate or modify a felony sentence only if we
determine “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.”
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.
{¶ 13} Initially, we note that Lanning is not claiming that the trial court failed to
consider the seriousness and recidivism factors of R.C. 2929.12, and the record reflects
that the trial court expressly stated at both Lanning’s sentencing hearing and in its
judgment entry that it considered R.C. 2929.12. Lanning is claiming that the trial court
improperly applied the R.C. 2929.12 factors when it considered conduct underlying the
dismissed charges—which, he claims, was not his conduct. Given that the trial court
expressly stated that it considered R.C. 2929.11 and 2929.12, properly applied
postrelease control, and imposed a prison term within the permissible statutory range, we
must uphold Lanning’s sentence unless the record contains clear and convincing evidence
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that the trial court’s application of R.C. 2929.12 was somehow contrary to law. State v.
Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15.
{¶ 14} Lanning argues that his sentence is “contrary to law” because the trial court
considered the dismissed charges even though he claimed that he was innocent of those
charges at his plea hearing and at sentencing, and that other people committed those
crimes—not him. We reject this argument for several reasons.
{¶ 15} First, the trial court did not explicitly reference the dismissed charges as
factors it considered when imposing its sentence. Lanning assumes that the trial court
must have considered the dismissed charges when imposing his sentence because the
state discussed Lanning’s conduct as supporting all of the charges against him, and the
state did not specifically identify which of those acts supported the two charges
underlying his guilty plea. But contrary to Lanning’s argument, there is no evidence in
the record—let alone clear and convincing evidence—demonstrating that the trial court
even considered the dismissed charges when determining his sentence.
{¶ 16} Second, assuming that the trial court did consider the dismissed charges,
“charges dismissed pursuant to the plea agreement in the case at issue may be considered
unless otherwise provided in the agreement.” State v. Lewis, 6th Dist. Wood No.
WD-14-082, 2015-Ohio-4629, ¶ 7, citing State v. Finn, 6th Dist. Lucas Nos. L-09-1162,
L-09-1163, 2010-Ohio-2004, ¶ 8. Neither Lanning’s signed plea agreement nor the
state’s representations at his change of plea hearing reflect an agreement that the trial
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court would not consider the dismissed charges when imposing his sentence—thus, it
would have been appropriate for the trial court to do so.
{¶ 17} Third, the fact that Lanning claimed to be innocent of the dismissed
charges does not change this analysis. A trial court is not prohibited from considering
conduct supporting charges dismissed pursuant to a plea agreement simply because the
defendant claims to be innocent of those charges. Indeed, if we were to hold otherwise,
our decision would be contrary to well-established case law that uncharged crimes and
charges dismissed pursuant to plea agreements may be considered at sentencing. See
State v. Skaggs, 4th Dist. Gallia No. 16CA19, 2017-Ohio-7368, ¶ 15, citing State v.
Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-Ohio-4574, ¶ 22, quoting State v.
Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 17, citing State v.
Cooey, 46 Ohio St. 3d 20, 35, 544 N.E.2d 895 (1989) (uncharged crimes are part of the
defendant’s social history and may be considered); State v. France, 5th Dist. Richland
No. 15CA19, 2015-Ohio-4930, ¶ 20 (“Ohio Courts have continually held uncharged
crimes and dismissed charges pursuant to plea agreements may be considered by courts
as factors during sentencing”); State v. Finn, 6th Dist. Lucas Nos. L-09-1162 and
L-09-1163, 2010-Ohio-2004, ¶ 8 (“[T]he trial court acts within its statutory purview in
considering and referencing facts and circumstances of a dismissed charge when
sentencing a defendant on a remaining, non-dismissed charge”); State v. Reeves, 8th Dist.
Cuyahoga No. 100560, 2015-Ohio-299, ¶ 9 (“Because there was no agreement by the
parties that the trial court should not consider the dismissed charges, and because trial
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courts routinely consider these matters in sentencing, the court’s consideration of the
underlying facts in this case was proper”; see also State v. Scheer, 158 Ohio App. 3d 432,
2004-Ohio-4792, 816 N.E.2d 602, ¶ 17 (4th Dist.) (“[T]he court was free to consider the
dismissed charges when determining an appropriate sentence for [the defendant]”). Put
simply, Lanning’s claim of innocence to the dismissed charges has no impact on the trial
court’s ability to consider those charges and their underlying conduct in determining the
appropriate sentence.
{¶ 18} Finally, we reject Lanning’s argument that the state “admitted” at
sentencing that he was not involved with the conduct underlying the dismissed charges.
Our review of the record reveals that the state never conceded Lanning’s innocence to
any of the dismissed charges. At his change of plea hearing, Lanning stated he was not
involved in the second night of burglaries which occurred on March 26, 2018. The state
did not respond to Lanning’s assertion at that time. At the sentencing hearing, Lanning
again stated he was not involved in the events that occurred on March 26, 2018. The
state responded that it “understand[s] Mr. Lanning indicates that he was not involved in
all of [the burglaries] but they were all done within a relatively short time.” The state’s
acknowledgement of Lanning’s claim of innocence is far from an “admission” that
Lanning was innocent of the dismissed charges. We note that the state did, however,
agree that Lanning did not kick in the door of any residence with a gun drawn as his
associates had done—which leads to the inescapable conclusion that such conduct was
not considered by the trial court when fashioning its sentence.
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{¶ 19} In sum, the trial court’s judgment reflects its consideration of the factors
listed in R.C. 2929.12 in determining Lanning’s sentence. Lanning has failed to identify
any evidence which shows that the trial court incorrectly applied R.C. 2929.12 by
considering the charges dismissed pursuant to his plea agreement. As a result, Lanning’s
sentence is not contrary to law and his assignment of error is found not well-taken.
III. Conclusion
{¶ 20} We find appellant’s assignment of error not well-taken. We therefore
affirm the judgment of the Ottawa County Court of Common Pleas. Appellant is ordered
to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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