State v. White , 2014 Ohio 1392 ( 2014 )

[Cite as State v. White, 2014-Ohio-1392.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
THOMAS WHITE : Case No. CT2013-0034
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2013-0020
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 27, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT L. SMITH ERIC J. ALLEN
Assistant Prosecuting Attorney 713 South Front Street
27 North Fifth Street Columbus, OH 43206
Zanesville, OH 43701
Muskingum County, Case No. CT2013-0034 2
Baldwin, J.
{¶1} Appellant Thomas White appeals a judgment of the Muskingum County
Common Pleas Court convicting him of one count of perjury (R.C. 2921.11(A)) upon a
plea of guilty and sentencing him to 30 months incarceration. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On January 30, 2013, appellant was indicted by the Muskingum County
Grand Jury with one count of perjury. He entered a guilty plea on April 29, 2013.
{¶3} The case proceeded to a sentencing hearing on June 10, 2013. At the
hearing, counsel asked that appellant’s sentence be imposed concurrent to the
sentence he was already serving on other charges. The court asked appellant if he had
anything he wanted to say in his own behalf. Appellant replied, “I’m sorry for lying under
oath, and I was worried about my family.” Sent. Tr. 4.
{¶4} The court stated that it had reviewed the presentence investigation. The
court also noted that the perjury took place during the trial of a man charged with
several serious crimes, including shooting appellant. The court sentenced appellant to
a term of incarceration of 30 months, to be served consecutive to all the other
sentences appellant was currently serving.
{¶5} Appellant assigns a single error on appeal:
{¶6} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE
DEFENDANT TO THIRTY MONTHS IN PRISON.”
Muskingum County, Case No. CT2013-0034 3
{¶7} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912, 896 N.E.2d 124, set forth a two step process for examining felony
sentences. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Id. at ¶ 4. If this first step is
satisfied, the second step requires that the trial court's decision be reviewed under an
abuse of discretion standard. Id. An abuse of discretion implies that the court's attitude
is unreasonable, arbitrary, or unconscionable. Id. at ¶19.
{¶8} Appellant concedes that his 30-month sentence is not contrary to law, as
R.C. 2929.14(A)(3) provides for a maximum sentence of 36 months. Appellant argues
that the sentence is an abuse of discretion. He admits that the record is scant in
regards to his fear for his family when he testified falsely in the earlier trial, but argues
that the court failed to take that fear into consideration as mitigation. He also cites to
other cases from this district where defendants were sentenced to less than 30 months
for perjury.
{¶9} Appellant has not demonstrated that the court abused its discretion in
sentencing him to 30 months incarceration. The judge stated on the record that he had
reviewed the presentence investigation report. The court noted on the record that
appellant had lied on the stand during a trial of a man charged with several serious
crimes, including shooting appellant. Although appellant stated that he was worried for
his family, the record does not demonstrate why appellant was concerned for his family
or how his concern was connected to his perjured testimony. The record does not
Muskingum County, Case No. CT2013-0034 4
support appellant’s claim that the court abused its discretion in sentencing him to 30
months incarceration.
The assignment of error is overruled. The judgment of the Muskingum County
Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Farmer, J. concur.