State v. Anderson ( 2011 )

[Cite as State v. Anderson, 2011-Ohio-6677.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 10CA009887
10CA009888
Appellee
v.
APPEAL FROM JUDGMENT
MARQUON ANDERSON ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF LORAIN, OHIO
CASE Nos. 09CR079267
10CR079934
DECISION AND JOURNAL ENTRY
Dated: December 27, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Marquon Anderson pleaded guilty to two counts of attempted burglary. The
counts arose from separate incidents. The trial court imposed the maximum prison term for both
counts and ordered the terms to run consecutively. Mr. Anderson has appealed his sentence,
arguing that the trial court did not comply with all of the applicable sentencing statutes and failed
to properly consider the principles of felony sentencing. We affirm because the trial court
complied with the applicable sentencing laws and it had discretion to impose maximum,
consecutive sentences for the offenses.
SENTENCING FACTORS
{¶2} Mr. Anderson’s first assignment of error is that the trial court did not comply with
all of the applicable rules and statutes when it imposed his sentence. In State v. Kalish, 120 Ohio
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St. 3d 23, 2008-Ohio-4912, a plurality of the Ohio Supreme Court determined that, in light of
State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, when appellate courts review criminal
sentences, they must apply a “two-step approach.” Id. at ¶4. The first step is whether the
sentence was contrary to law. Id. The second step is whether the court exercised proper
discretion in imposing the term of imprisonment. Id. at ¶26. The parties agree that Kalish
provides the correct standard of review in this case.
{¶3} Mr. Anderson has argued that the trial court did not properly consider the
statutory policies that apply to felony offenses set out in Sections 2929.11 and 2929.12 of the
Ohio Revised Code. In State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, at ¶38, the Ohio
Supreme Court explained that, “[a]lthough after Foster the trial court is no longer compelled to
make findings and give reasons at the sentencing hearing because R.C. 2929.19(B)(2) has been
excised, nevertheless, in exercising its discretion, the court must carefully consider the statutes
that apply to every felony case. Those include R.C. 2929.11, which specifies the purposes of
sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the
seriousness of the offense and recidivism of the offender.”
{¶4} Under Section 2929.11(A), “[a] court that sentences an offender for a felony shall
be guided by the overriding purposes of felony sentencing. The overriding purposes of felony
sentencing are to protect the public from future crime by the offender and others and to punish
the offender[.] . . . To achieve those 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.” “A sentence
imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of
felony sentencing set forth in [Section 2929.11(A)], commensurate with and not demeaning to
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the seriousness of the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B).
{¶5} Under Section 2929.12(A), “[u]nless otherwise required by section 2929.13 or
2929.14 of the Revised Code, a court that imposes a sentence . . . upon an offender for a felony
has discretion to determine the most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the
court shall consider the factors set forth in [Sections 2929.12(B) and (C)] relating to the
seriousness of the conduct and the factors provided in [Sections 2929.12(D) and (E)] relating to
the likelihood of the offender’s recidivism and, in addition, may consider any other factors that
are relevant to achieving those purposes and principles of sentencing.”
{¶6} Mr. Anderson has acknowledged that there are two factors in his case that indicate
recidivism is more likely: that he was charged with another theft offense while awaiting
sentencing and that he did not show genuine remorse for his actions. R.C. 2929.12(D)(1), (5).
He has also noted that there are two factors that indicate recidivism is less likely: that he was
never adjudicated a delinquent child and that he did not have any prior convictions. R.C.
2929.12(E)(1), (2). According to him, because the recidivism factors offset each other, the trial
court should not have imposed the maximum sentence for his crimes.
{¶7} At Mr. Anderson’s sentencing hearing, the trial court determined “[i]n both cases
. . . that a prison sanction is appropriate in order to comply with the principles and purposes of
sentencing.” It also determined that “the factors indicating recidivism is more likely . . .
outweigh those factors indicating that recidivism is less likely, and the factors increasing
seriousness outweigh those decreasing seriousness.” It explained that, “[u]pon consideration of
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all matters set forth by law,” it was going to sentence Mr. Anderson to 12 months for one offense
and 18 months for the other and order him to serve the sentences consecutively.
{¶8} The record demonstrates that the trial court considered all of the factors in
Sections 2929.11 and 2929.12 before imposing Mr. Anderson’s sentence. In addition, Mr.
Anderson has not established that the trial court improperly weighed the recidivism factors. His
first assignment of error is overruled.
MAXIMUM CONSECUTIVE SENTENCES
{¶9} Mr. Anderson’s second assignment of error is that the trial court failed to comply
with the principles of felony sentencing when it sentenced him to maximum, consecutive
sentences. He has argued that, under Section 2929.14 of the Ohio Revised Code, the trial court
was required to impose the shortest prison term unless he committed the offenses while serving a
prison term or after having previously served a prison term, it found that the shortest prison term
would demean the seriousness of his conduct or not adequately protect the public from future
crimes, or if he committed the worst form of the offenses or posed the greatest likelihood of
committing future crimes. R.C. 2929.14(B)(1) & (2) (2009); R.C. 2929.14(C) (2009).
{¶10} In State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, the Ohio Supreme Court
held that Section 2929.14(B) & (C) are unconstitutional and excised them from the Ohio Revised
Code. Id. at paragraphs one and two of the syllabus. After Foster, “[t]rial courts have full
discretion to impose a prison sentence within the statutory range and are no longer required to
make findings or give their reasons for imposing maximum, consecutive, or more than the
minimum sentences.” State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, at paragraph three of
the syllabus; Foster, 2006-Ohio-856, at paragraph seven of the syllabus. Accordingly, Mr.
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Anderson’s argument that he should have received the minimum sentence for his offenses is
without merit. His second assignment of error is overruled.
CONCLUSION
{¶11} The trial court properly considered the factors under Sections 2929.11 and Section
2929.12 before sentencing Mr. Anderson, and it had discretion to impose the maximum prison
term for his offenses. The judgment of the Lorain County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
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WHITMORE, P. J.
MOORE, J.
CONCUR
APPEARANCES:
KENNETH ORTNER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and, MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.