State v. McGuffey , 2012 Ohio 4448 ( 2012 )

[Cite as State v. McGuffey, 2012-Ohio-4448.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
STATE OF OHIO, :
Plaintiff-Appellee : C.A. CASE NO. 11-CA-34
vs. : T.C. CASE NO. 2011-CR-222
KEVIN R. MCGUFFEY, : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
.........
OPINION
Rendered on the 28th day of September, 2012.
.........
Nick A. Selvaggio, Pros. Attorney, Atty. Reg. No. 0055607, 200 N. Main St., Urbana, OH
43078
Attorney for Plaintiff-Appellee
Richard E. Mayhall, Atty. Reg. No. 0030017, 20 S. Limestone St., Ste. 235, Springfield,
OH 45502
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant Kevin McGuffey appeals from his conviction and sentence for one
count of burglary, R.C. 2911.12(A)(2), a felony of the second degree; one count of burglary,
R.C. 2911.12(A)(3), a felony of the third degree; two counts of grand theft, R.C.
2913.02(A)(1), felonies of the fourth degree; three counts of breaking and entering, R.C.
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2911.13(A)(C), felonies of the fifth degree; two counts of theft, R.C. 2913.02(A)(1),
misdemeanors of the first degree; and six counts of criminal damaging, R.C. 2909.06(A)(1),
misdemeanors of the second degree.
{¶ 2} In 2011, while he was subject to community control sanctions, Defendant was
involved with five co-defendants in a series of break-ins and thefts from unoccupied buildings
and homes. As a result, Defendant was indicted on 25 counts including: three counts of
burglary, three counts of breaking and entering, six counts of theft, two counts of grand theft,
six counts of criminal damaging, one count of retaliation, and four counts of possession of
criminal tools.
{¶ 3} As part of a plea agreement, Defendant pled guilty to 15 of the charges, and the
remaining counts were dismissed. One count of grand theft was merged with a count of
burglary as allied offenses of similar import. The trial court sentenced Defendant to an
aggregate sentence of seven and one-half years.
{¶ 4} Defendant appeals, raising two assignments of error, both challenging the
length of his sentence.
{¶ 5} Defendant’s first assignment of error:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
IMPOSED CONSECUTIVE SENTENCES TOTALING 7 ½ YEARS.”
{¶ 6} Defendant’s second assignment of error:
“BECAUSE THE TRIAL COURT’S SENTENCE IMPOSES AN UNNECESSARY
BURDEN ON GOVERNMENT RESOURCES, IT IS CONTRARY TO LAW.”
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{¶ 7} In State v. Barker, 183 Ohio App.3d 414, 2009-Ohio-3511, 917 N.E.2d 324 (2d
Dist.), at ¶ 36-37, we wrote:
The trial court has full discretion to impose any sentence within the authorized
statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum, consecutive, or more than minimum
sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
at paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the
trial court must consider the statutory policies that apply to every felony
offense, including those set out in R.C. 2929.11 and 2929.12. State v. Mathis,
109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at ¶ 37.
When reviewing felony sentences, an appellate court must first
determine whether the sentencing court complied with all applicable rules and
statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order
to find whether the sentence is contrary to law. State v. Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912, 896 N.E.2d 124. If the sentence is not clearly and
convincingly contrary to law, the trial court’s decision in imposing the term of
imprisonment must be reviewed under an abuse of discretion standard. Id.{¶ 8} Defendant does not dispute that his sentence falls within the permissible
statutory range for his crimes. However, Defendant insists that his sentence is contrary to law
because it puts an unreasonable burden on State resources in violation of R.C. 2929.13(A). In
that connection, Defendant points out that he was cooperative with law enforcement
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authorities after his arrest, providing information on other crimes, which the prosecutor agreed
was helpful in solving other criminal offenses that had occurred.
{¶ 9} Although resource burdens are a relevant sentencing criterion under former
R.C. 2929.13(A) and newly enacted language in R.C. 2929.11(A), a sentencing court is not
required to elevate resource conservation above seriousness and recidivism factors. State v.
Luyando, 8th Dist. Cuyahoga App. No. 97203, 2012-Ohio-1947, ¶ 14, citing State v. Burton,
10th Dist. Franklin App. No. 06AP-690, 2007-Ohio-1941, ¶ 19. Accord, State v. Ober, 2d
Dist. Greene App. No. 97 CA 0019, 1997 WL 624811 (Oct. 10, 1997). “Where the interests
of public protection and punishment are well served by a prison sentence, the claim is difficult
to make that the prison sentence imposes an unnecessary burden on government resources.”
State v. Bowshier, 2d Dist. Clark App. No. 08-CA-58, 2009-Ohio-3429, ¶ 13, citing Ohio
Felony Sentencing Law, 2007 Ed. Griffin and Katz, at 966.
{¶ 10} When determining whether a prison sentence is warranted, the trial court must
consider the benefit to society in assuring that Defendant will not be free to continue to
re-offend. State v. Vlahopoulos, 154 Ohio App.3d 450, 2003-Ohio-5070, 797 N.E.2d 580, ¶
5 (8th Dist.). “Many people sleep better at night knowing that certain offenders are
incarcerated. They would no doubt consider a lengthy incarceration worth the cost of housing
those offenders.” Id.{¶ 11} Defendant pled guilty to 15 crimes, in exchange for which ten additional
charges were dismissed. Furthermore, Defendant committed these crimes while on
community control for the commission of similar crimes. Defendant concedes in his brief
“that a prison sentence in this case was inevitable, and, indeed, appropriate.” We conclude
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that Defendant’s sentence does not impose an unnecessary burden on State resources.
{¶ 12} Defendant also argues that while “[t]he facts in this case justify a period of
incarceration,” the trial court erred in imposing such a lengthy sentence. We disagree.
{¶ 13} “A trial court has broad discretion in sentencing a defendant and a reviewing
court will not interfere with the sentence unless the trial court abused its discretion.” State v.
Bray, 2d Dist. Clark No. 2010CA14, 2011-Ohio-4660, ¶ 28, citations omitted. “Abuse of
discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable.
Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985). It is to
be expected that most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 14} Prior to imposing sentence, the trial court explained that it had reviewed the
purposes and principles of sentencing, including the seriousness and recidivism factors. The
court heard statements made by the State, Defendant, and his counsel. The court considered
the nature of Defendant’s criminal conduct, which included multiple crimes against many
victims, noting Defendant’s “dangers and risks to community and individual welfare. * * *
Defendant’s conduct created a cloud of uncertainty in the community [and] fear of loss of
security.” Moreover, the court reviewed the pre-sentence investigation report, which detailed
Defendant’s criminal history. When Defendant committed these crimes, he was on
community control for having committed similar offenses.
{¶ 15} Defendant faced a potential sentence of nearly 13 years, while the State
recommended a sentence of more than ten years. After evaluating all of the factors listed
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above, the trial court imposed a sentence of seven and one-half years. Courts have the
authority and inherent discretion to determine whether a sentence within the statutory range
shall run consecutively or concurrently. State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983,
887 N.E.2d 328, paragraph 19. We cannot conclude that under the facts and circumstances of
this case that the trial court abused its discretion in imposing consecutive sentences upon
Defendant.
{¶ 16} Defendant’s first and second assignments of error are overruled. The
judgment of the trial court will be affirmed.
Donovan, J., And Hall, J., concur.
Copies mailed to:
Nick A. Selvaggio, Esq.
Richard E. Mayhall, Esq.
Hon. Roger B. Wilson