State v. Ward ( 2012 )

[Cite as State v. Ward, 2012-Ohio-293.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24521
vs. : T.C. CASE NO. 10CR3763
DOMINIQUE M. WARD : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 27th day of January, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Asst.
Pros. Attorney, Atty. Reg. No. 0069829, P.O. Box 972, Dayton, OH
45422
Attorneys for Plaintiff-Appellee
Richard A. Nystrom, Atty. Reg. No. 0040615, 1502 Liberty Tower,
120 West Second Street, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Dominique Ward, was indicted on one count
of aggravated robbery involving use of a deadly weapon, R.C.
2911.01(A)(1), one count of aggravated robbery involving serious
physical harm, R.C. 2911.01(A)(3), one count of receiving stolen
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property, R.C. 2913.51(A), and one count of obstructing justice,
R.C. 2921.32(A)(5). Both aggravated robbery charges included a
three year firearm specification. R.C. 2941.145. Pursuant to
a negotiated plea agreement, Defendant entered a plea of guilty
to the aggravated robbery charge involving use of a deadly weapon,
without the attached firearm specification. In exchange, the
State dismissed the remaining charges and firearm specifications.
The trial court sentenced Defendant to a four-year prison term.
{¶ 2} Defendant timely appealed to this court from her
conviction and sentence.
ASSIGNMENT OF ERROR
{¶ 3} “WHETHER THE COURT ABUSED HER DISCRETION IN IMPOSING
AN UNREASONABLE SENTENCE IN NONCONFORMANCE TO THE PRINCIPLES AND
PURPOSES OF SENTENCING UNDER O.R.C. 2929.11 AND 2929.12 AND
SUFFICIENT TO COMPROMISE DEFENDANT’S CONSTITUTIONAL RIGHTS TO DUE
PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE
CONSTITUTION.”
{¶ 4} Aggravated robbery involving use of a deadly weapon,
R.C. 2911.01(A)(1), is a first degree felony offense. R.C.
2911.01(C). First degree felony offenses are punishable by
imposition of a definite term of imprisonment of three, four, five,
six, seven, eight, nine, ten or eleven years. R.C. 2929.14(A)(1).
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{¶ 5} Defendant argues that the trial court abused its
discretion in sentencing her, a first time felony offender, to
more than the three year minimum sentence for aggravated robbery
because she was, at worst, an accomplice after the fact, because
she lacked any prior knowledge about the robbery and did not take
part in the planning or performance of the robbery. Simply put,
Defendant contends that the facts demonstrate that her culpability,
the risk she poses to society, and her potential for recidivism
are all minimal and therefore do not justify more than a minimum
sentence.
{¶ 6} On the night of November 26, 2010, Defendant was visiting
her mother and needed a ride home. She asked her sister. When
Defendant’s sister picked her up, there were two men inside the
vehicle. Rather than taking Defendant directly home, Defendant’s
sister stopped at the home of a friend, Kindle Battle, and they
all went inside the home to socialize. Defendant played video
games with the children who were present in the home. Suddenly,
the two men pulled a gun on Kindle Battle, at which point Defendant
ran outside to the car. Battle was pistol whipped and suffered
serious physical harm. Battle’s ten year old son, who witnessed
the incident, suffered psychological trauma. Eventually, stolen
items from the Battle home were carried out to the car in which
Defendant was waiting. The group then drove to Defendant’s home
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where they divided up the stolen loot.
{¶ 7} In State v. Jeffrey Barker, 2nd Dist. Montgomery No.
22779, 2009-Ohio-3511, 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,
845 N.E.2d 470, 2006-Ohio-856, 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, 846 11 N.E.2d 1, 2006-Ohio-855, 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,
896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not
clearly and convincingly contrary to law, the trial
court's decision in imposing the term of imprisonment
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must be reviewed under an abuse of discretion standard.
Id.{¶ 8} Defendant does not argue that her sentence is clearly
and convincingly contrary to law because the trial court failed
to comply with the applicable rules and statutes in imposing its
sentence. Rather, Defendant argues that on these facts any
sentence greater than the minimum is excessive and constitutes
an abuse of the trial court’s discretion. We disagree.
{¶ 9} Although Foster freed the trial courts from most of the
requirements to make findings or give its reasons before imposing
maximum, consecutive, or greater than minimum sentences, the
legislative policy remains: “A first prison term should be the
minimum sentence within the range absent reason to impose a greater
sentence.” State v. Bowshier, 2nd Dist. Clark No. 08CA58,
2009-Ohio-3429, ¶ 11. If the trial court imposes more than a
minimum sentence, support for the sentence should appear in the
record. Id.; Griffin and Katz, Ohio’s Felony Sentencing Law
(2007) 208.
{¶ 10} Here, the trial court’s four year sentence, which is
one year more than the minimum sentence for felonies of the first
degree, and seven years less than the maximum, is supported by
the record. This robbery involved a deadly weapon, a gun, that
was used to beat and injure the adult victim in the presence of
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the victim’s young son. In imposing its four year sentence, the
trial court took into account that Defendant may be the least
culpable of all of the perpetrators and that she entered a guilty
plea, but the court noted that once Defendant became aware of the
robbery, Defendant didn’t do or say anything to try and stop it,
and she did not call police for help for the victim or the children
who were present. As a result, the adult victim was injured and
his ten year old son who witnessed the incident was psychologically
traumatized. Furthermore, by defense counsel’s own admission at
sentencing, Defendant “assisted in the carrying out or handling
of the spoils.” To that limited extent, at least, Defendant
ratified the perpetrators’ criminal conduct. Finally, Defendant
has a previous misdemeanor conviction for petty theft in 2010.
{¶ 11} The overriding purposes of felony sentencing are to
protect the public from future crime by the offender and to punish
the offender. R.C. 2929.11(A). The trial court has discretion
to determine the most effective way to comply with the purposes
and principles of sentencing. R.C. 2929.12(A). We see no abuse
of discretion on the part of the trial court in imposing a four
year sentence in this case.
{¶ 12} Defendant’s sole assignment of error is overruled. The
judgment of the trial court will be affirmed.
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DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Michele D. Phipps, Esq.
Richard A. Nystrom, Esq.
Hon. Frances McGee