State v. Bianca ( 2011 )

[Cite as State v. Bianca, 2011-Ohio-3321.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 10-COA-041
TYLER J. BIANCA
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas, Case No. 10-CRI-096
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 30, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS DOUGLAS A. MILHOAN
ASHLAND COUNTY PROSECUTOR P.O. Box 347
110 Cottage Street, Third Floor Middlebranch, Ohio 44652
Ashland, Ohio 44805
By: PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 10-COA-041 2
Hoffman, P.J.
{¶1} Defendant-appellant Tyler J. Bianca appeals his sentence entered by the
Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 22, 2010, Appellant, who was 16 years old, was at the home of
Marge Swope, the grandmother of his friend, C.L.1, in Ashland, Ohio. Appellant had
obtained a handgun from another juvenile prior to arriving in Ashland, and brought the
weapon with him to the Swope home. Appellant, C.L., and Stephen Ashby2 decided to
attend a party in Shiloh, Ohio. A fourth individual transported them to the party, but did
not remain. Although Appellant intended to sell the firearm, he had not yet done so and
brought the firearm to the party.
{¶3} While at the party, Appellant, C.L., and Ashby met Loralie King. The party
was at King’s home. Appellant and his friends did not have a means of transportation
back to Ashland, and asked King to give them a ride. At approximately 1:30 to 2:00 a.m.
on July 23, 2010, King agreed to drive Appellant, C.L., and Ashby to the Shenandoah
General Store which was a portion of the way back to Ashland. King drove her vehicle.
She had a pack of cigarettes, her friend’s cell phone, and $55 cash in her possession.
Appellant, who sat in the front passenger seat, asked King if he could use the cell
phone. After making a call, Appellant threw the phone out the car window. King
objected. Appellant removed the handgun, held it to King’s head, and demanded she
drive them the entire way to Ashland. Appellant previously told C.L. of his intentions.
1
C.L. was a minor at the time.
2
Stephen Ashby was over 18 years of age at the time.
Ashland County, Case No. 10-COA-041 3
Appellant held the handgun against or in close proximity to King’s head during the entire
drive.
{¶4} Appellant demanded King’s money and cigarettes. While stopped at an
intersection, Appellant instructed King to exit the vehicle, which she did. Appellant
searched the vehicle for a lighter and found money King had attempted to hide.
Appellant then ordered King back into the vehicle. King drove Appellant and the others
to the Ashland YMCA. King was then able to drive away. Appellant, C.L., and Ashby
returned to the Swope residence where Appellant hid the handgun under a couch
cushion.
{¶5} Appellant was charged by Complaint in Juvenile Court, alleging he was
delinquent for committing acts constituting the offenses of aggravated robbery,
abduction, having weapons while under disability, tampering with evidence, and petty
theft. Upon motion of the State, the juvenile court relinquished jurisdiction, and the
matter was transferred to the General Division for prosecution of Appellant as an adult.
The State filed a Bill of Information on September 29, 2010.
{¶6} On October 1, 2010, Appellant entered a plea of guilty to one count of
robbery, a felony of the second degree, and one count of abduction, a felony of the third
degree. The trial court accepted the plea, found Appellant guilty, and ordered a pre-
sentence investigation. The trial court conducted a sentencing hearing on November 15,
2010, at which time it sentenced Appellant to an aggregate term of imprisonment of six
years. The trial court memorialized the sentence via Judgment Entry - Sentencing filed
November 24, 2010.
Ashland County, Case No. 10-COA-041 4
{¶7} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
{¶8} “I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE
IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.”
{¶9} Based on the record, this Court cannot find the trial court acted
unreasonably, arbitrarily, or unconscionably, or that the trial court violated Appellant's
rights to due process under the Ohio or United States Constitutions in its sentencing.
Further, the sentence in this case is not so grossly disproportionate to the offense as to
shock the sense of justice in the community.
{¶10} In his sole assignment of error, Appellant contends his sentence places an
unnecessary burden on state resources.
{¶11} In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second
District considered this same issue. In rejecting the argument, the Court stated,
{¶12} “Ober is correct that the ‘sentence shall not impose an unnecessary
burden on state or local government resources.’ R.C. 2929.19(A). According to criminal
law experts, this resource principle ‘impacts on the application of the presumptions also
contained in this section and upon the exercise of discretion.’ Griffin & Katz, Ohio
Felony Sentencing Law (1996–97), 62. Courts may consider whether a criminal
sanction would unduly burden resources when deciding whether a second-degree
felony offender has overcome the presumption in favor of imprisonment because the
resource principle is consistent with the overriding purposes and principles of felony
sentencing set forth in R.C.2929.11. Id.”
Ashland County, Case No. 10-COA-041 5
{¶13} The Ober Court concluded, “[a]lthough resource burdens may be a
relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate
resource conservation above the seriousness and recidivism factors. Imposing a
community control sanction on Ober may have saved state and local government funds;
however, this factor alone would not usually overcome the presumption in favor of
imprisonment.” Id.{¶14} R.C. 2929.13 governs sentencing guidelines for various specific offenses
and degrees of offenses. Subsection (A) states, in pertinent part:
{¶15} “Except as provided in division (E), (F), or (G) of this section and unless a
specific sanction is required to be imposed or is precluded from being imposed pursuant
to law, a court that imposes a sentence upon an offender for a felony may impose any
sanction or combination of sanctions on the offender that are provided in sections
2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an
unnecessary burden on state or local government resources.”
{¶16} As we noted in State v. Ferenbaugh, Ashland App. No. 03COA038, 2004–
Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial courts
discretion to impose sentences. Nowhere within the statute is there any guideline for
what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, Ashland App. No.2008–
COA–036, 2009–Ohio–3105, this Court reviewed a similar claim. We found although
burdens on State resources may be a relevant sentencing criteria as set forth in R.C.
2929.13, state law does not require trial courts to elevate resource conservation above
seriousness and recidivism factors, Shull, at paragraph 22, citing State v. Ober (October
10, 1997), Greene App. No. 97CA0019, 1997 WL 624811.
Ashland County, Case No. 10-COA-041 6
{¶17} Upon review, we do not find the sentence imposed herein constituted an
unnecessary burden on state resources.
{¶18} Appellant’s sole assignment of error is overruled.
{¶19} The judgment of the Ashland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Ashland County, Case No. 10-COA-041 7
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TYLER J. BIANCA :
:
Defendant-Appellant : Case No. 10-COA-041
For the reason stated in our accompanying Opinion, the judgment of the Ashland
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards ___________________
HON. JULIE A. EDWARDS