State v. Baughman , 2017 Ohio 346 ( 2017 )

[Cite as State v. Baughman, 2017-Ohio-346.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1008
Appellee Trial Court No. CR0201502181
v.
Mark Baughman DECISION AND JUDGMENT
Appellant Decided: January 27, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Tim A. Dugan, for appellant.
*****
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Mark Baughman, appeals the judgment of the Lucas County
Court of Common Pleas, sentencing him to two 30-month prison terms, to be served
consecutively, following no contest pleas to two counts of making terroristic threats,
pursuant to R.C. 2909.23, felonies of the third degree.
A. Facts and Procedural Background
{¶ 2} Appellant, an inmate at the Toledo Correctional Institution, was indicted by
a Lucas County Grand Jury for two counts of making terroristic threats, in relation to two
specific letters. The letters, both written to John Coleman, warden of the Toledo
Correctional Institution, describe appellant’s distaste for the American justice system,
threaten violence to the American public, are signed, “Bomb Man,” and one letter
sympathizes with ISIS.
{¶ 3} After pretrial negotiations, appellant entered no contest pleas to both counts,
in exchange for the dismissal of two other counts of making terroristic threats from a
separate case. His sentencing hearing was held on December 22, 2015.
{¶ 4} At sentencing, the court discussed the contents of the presentence
investigation report, stating:
THE COURT: And my problem is these threats are so potentially
dangerous I would feel uncomfortable releasing you because everybody in
this report thinks that you are capable of carrying out some of these threats
that you’ve made, and I don’t want to be responsible for somebody getting
killed based on these ridiculous threats.
{¶ 5} The court proceeded to sentence the defendant to a 30-month prison term for
each count, and ordered them to run consecutively. It is from this sentence that appellant
has filed his timely appeal.
2.
B. Assignment of Error
{¶ 6} On appeal, appellant presents a sole assignment of error for our review:
1) Appellant’s sentence is contrary to law.
II. Analysis
{¶ 7} In support of his assertion that his sentence was contrary to law, appellant
advances two arguments. He first argues that the court’s findings for consecutive
sentences are not supported by clear and convincing evidence. We disagree.
{¶ 8} We review felony sentences under the two-prong approach set forth in R.C.
2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly
finds either of the following: (a) that 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) that the sentence is otherwise contrary to law. State v. Behrendt,
6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, ¶ 6, citing State v. Tammerine, 6th Dist.
Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.
{¶ 9} We would initially note that appellant’s sentence of two 30-month terms, to
run consecutively, is within the range of sentences for two third-degree felonies. R.C.
2929.14(A)(3)(a).
{¶ 10} Consecutive sentences may be imposed at the court’s discretion. Before
imposing consecutive sentences, the trial court must find consecutive sentences are
3.
“necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public,” and that one of the
circumstances listed at R.C. 2929.14(C)(4)(a), (b), (c) existed. See R.C. 2929.14(C)(4).
{¶ 11} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177,
16 N.E.3d 659, syllabus.
{¶ 12} Here, the court strictly complied with R.C. 2929.14(C)(4) by making
specific findings that 1) consecutive sentences were necessary to protect the public from
future crime or to punish the offender; 2) consecutive sentences were not disproportionate
to the seriousness of the offender’s conduct and to the danger the offender poses to the
public; and 3) appellant’s criminal history demonstrated that consecutive sentences were
necessary to protect the public from future crime. These findings were subsequently
memorialized in the judgment entry.
{¶ 13} Appellant argues that these findings were contrary to law, reasoning that it
would be unlikely that a 63-year-old man would go about a violent rampage after being
in prison for over two decades. Aside from this bare assertion, appellant provides no
support of his position that the court’s findings for consecutive sentences were not
supported by clear and convincing evidence. Indeed, the court noted that the threats were
4.
extremely dangerous and everyone involved in creating the presentence report thought
that appellant was capable of carrying out the threats. Therefore, we reject the argument
that the court’s findings for consecutive sentencing were not supported by clear and
convincing evidence.
{¶ 14} Appellant next argues that the trial court’s statement that it considered R.C.
2929.11 and 2929.12 was not supported by the record. Specifically, appellant reasons
that the court failed to properly weigh the principles and purposes of sentencing because
the state of Ohio agreed not to object to community control sanctions. Appellant cites no
law to support this position, and this argument holds no weight.
{¶ 15} In Tammerine, we recognized that State v. Kalish, 120 Ohio St. 3d 23,
2008-Ohio-4912, 896 N.E.2d 124, still can provide guidance for determining whether a
sentence is clearly and convincingly contrary to law. Tammerine at ¶ 15. In Kalish, the
Ohio Supreme Court held that where the trial court expressly stated that it considered the
purposes and principles of sentencing in R.C. 2929.11 as well as the factors listed in R.C.
2929.12, properly applied postrelease control, and sentenced the defendant within the
statutorily permissible range, the sentence was not clearly and convincingly contrary to
law. Kalish at ¶ 18.
{¶ 16} Here, the judgment entry clearly reflects that it weighed the principles and
purposes of sentencing under R.C. 2929.11 as well as recidivism factors set out in R.C.
2929.12. It is undisputed that the court properly applied postrelease control and that the
5.
sentence is within the permissible range. Therefore, appellant’s sentence was not
contrary to law.
{¶ 17} Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 18} Based on the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with
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.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, 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.sconet.state.oh.us/rod/newpdf/?source=6.
6.