State v. Daniels ( 2017 )

[Cite as State v. Daniels, 2017-Ohio-1045.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2016-0021
: CT2016-0022
COURTNEY M. DANIELS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case Nos.
CR2016-0051 and CR2016-0100
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 20, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX TONY A. CLYMER
MUSKINGUM CO. PROSECUTOR 1420 Matthias Drive
GERALD V. ANDERSON II Columbus, OH 43224
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case Nos. CT2016-0021 and CT2016-0022
2
Delaney, J.
{¶1} Appellant Courtney M. Daniels appeals from the sentencing entries of May
5, 2016 and May 11, 2016 of the Muskingum County Court of Common Pleas. Appellee
is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arises from two separate criminal cases before the Muskingum
County Court of Common Pleas.
{¶3} Between December 4, 2015, and January 20, 2016, appellant forged and
uttered 19 checks on the account of Daniels Excavating, for a total of $7,050.61. The
account is owned by appellant’s father and the checks were uttered throughout
Muskingum County. In case number CR2016-0100, appellant was charged by indictment
with one count of forgery (uttering) pursuant to R.C. 2913.31(A)(3), a felony of the fifth
degree [Count I], and one count of theft in an amount greater than $1000 and less than
$7500 pursuant to R.C. 2913.02(A)(1),a felony of the fifth degree [Count II].
{¶4} On January 31, 2016, appellant and two associates burglarized a residence
in Zanesville, Ohio. The items stolen included a .22 caliber long rifle, a single-shot
shotgun, ammunition, and jewelry. Appellant sold the firearms to her brothers. The
brothers cooperated with law enforcement and turned over the firearms. In case number
CR2016-0051, appellant was charged by indictment with one count of burglary with a
one-year firearm specification, a felony of the second degree pursuant to R.C.
2911.12(A)(2) [Count I]; one count of theft of firearms pursuant to R.C. 2913.02(A)(1), a
felony of the third degree [Count II]; one count of theft in an amount less than $1000, a
Muskingum County, Case Nos. CT2016-0021 and CT2016-0022
3
misdemeanor of the first degree [Count III]; and one count of possession of criminal tools,
a felony of the fifth degree pursuant to R.C. 2923.24(A) [Count IV].
{¶5} On March 16, 2016, appellant appeared before the trial court and entered
pleas of guilty as charged. The case was deferred for sentencing pending a pre-sentence
investigation (P.S.I.).
{¶6} On May 2, 2016, appellant appeared for sentencing. The trial court noted
it reviewed the P.S.I. Appellant acknowledged her history of substance abuse, including
drinking alcohol and smoking marijuana by age 12, using powder and crack cocaine by
age 15, using heroin by age 18, and using methamphetamine by age 22. Appellant
acknowledged she has a criminal history of petty thefts, and that in the burglary case, she
“set [the victim] up” for the burglary. Appellant further acknowledged she used heroin,
cocaine, and marijuana while free on bond.
{¶7} The trial court accepted appellant’s guilty pleas and sentenced her to an
aggregate prison term of five years for both cases.
{¶8} Appellant now appeals from the judgment entries of conviction and
sentence.
{¶9} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶10} “THE TRIAL COURT ERRED BY NOT CONSIDERING THE PRINCIPLES
AND PURPOSES OF SENTENCING WHICH INCLUDES UTILIZING THE MINIMUM
SANCTIONS AVAILABLE TO PUNISH APPELLANT.”
Muskingum County, Case Nos. CT2016-0021 and CT2016-0022
4
ANALYSIS
{¶11} Appellant argues the trial court did not properly consider the principles and
purposes of sentencing as required by R.C. 2929.11 and 2929.12. We disagree.
{¶12} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony
sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109
Ohio St. 3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.
{¶13} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, ¶ 1. Pursuant to R.C.
2953.08(G)(2), an appellate court may only “increase, reduce, or otherwise modify a
sentence * * * or may vacate the sentence and remand the matter to the sentencing court
for resentencing” if the court finds by clear and convincing evidence “(a) [t]hat the record
does not support the sentencing court's findings[,]” or “(b) [t]hat the sentence is otherwise
contrary to law.” R.C. 2953.08(G)(2)(a)-(b). “An appellate court will not find a sentence
clearly and convincingly contrary to law where the trial court considers the principles and
purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes
postrelease control, and sentences the defendant within the permissible statutory range.”
State v. Hall, 5th Dist. Richland No. 15CA112, 2017-Ohio-592, ¶ 9, citing State v. Ahlers,
12th Dist. Butler No. CA2015–06–100, 2016–Ohio–2890, ¶ 8, and State v. Moore, 12th
Dist. Clermont No. CA2014–02–016, 2014–Ohio–5191, ¶ 6.
{¶14} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are
to protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
Muskingum County, Case Nos. CT2016-0021 and CT2016-0022
5
resources. To achieve these purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both. R.C. 2929.11(A).
{¶15} R.C. 2929.12 lists general factors which must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria
which do not control the court's discretion but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine the
most effective way to comply with the purpose and principles of sentencing as set forth in
R.C. 2929.11. R.C. 2929.12.
{¶16} Among the various factors that the trial court must consider and balance
under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the
victim as a result of the offense; (2) whether the offender has a history of criminal
convictions; (3) whether the offender has not responded favorably to sanctions previously
imposed by criminal convictions; and (4) whether the offender shows genuine remorse
for the offense. R.C. 2929.12.
{¶17} At the sentencing hearing, the trial court listened to the argument of
appellant's counsel and appellant’s own statement of remorse acknowledging her
significant drug problem. The trial court assessed appellant’s history of drug abuse and
her criminal history of theft. T. II., 8. When the trial court asked, “The facts of this case,
the burglary, are pretty bad, aren’t they,” appellant assented, and the trial court noted
appellant’s role in “setting up” the victim. T. II., 9.
Muskingum County, Case Nos. CT2016-0021 and CT2016-0022
6
{¶18} In addition, the trial court used the P.S.I. in formulating appellant’s
sentence, but the P.S.I. has not been made part of the record for our review. In State v.
Untied, 5th Dist. Muskingum No. CT97–0018, 1998 WL 401768, *8 (Mar. 5, 1998), we
noted appellate review contemplates that the entire record be presented and if portions
of the transcript necessary to resolve issues are not included, we must presume regularity
in the trial court proceedings and affirm. The P.S.I. report could have been submitted
“under seal” for our review. Id. Absent the cited information and considering “the trial
court's findings on the record, we cannot say appellant's sentence was against the
manifest weight of the evidence or ‘contrary to law.’” State v. Henderson, 5th Dist. Stark
No. 2004–CA–00215, 2005-Ohio-1644, 2005 WL 774039, ¶ 48, citing State v. Wallace,
5th Dist. Delaware No. 03–CA–A–07–043, 2004-Ohio-1694, 2004 WL 670684 and State
v. Mills, 5th Dist. Ashland No. 03–COA–001, 2003-Ohio-5083, 2003 WL 22208740; see
also, State v. Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d
765, ¶ 35.
{¶19} The sentence imposed is within the range provided for felonies of the
second degree. We find the trial court properly considered the statutory factors and
complied with all applicable rules and laws. We further find the sentence is not clearly
and convincingly contrary to law, and the trial court did not err in sentencing appellant.
{¶20} Appellant’s sole assignment of error is overruled.
Muskingum County, Case Nos. CT2016-0021 and CT2016-0022
7
CONCLUSION
{¶21} Appellant’s sole assignment of error is overruled and the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By: Delaney, P.J. and
Wise, J.
Baldwin, J., concur.