State v. Slagle , 2011 Ohio 1463 ( 2011 )


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  • [Cite as State v. Slagle, 2011-Ohio-1463.]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    HIGHLAND COUNTY
    STATE OF OHIO,                 :
    :
    Plaintiff-Appellee,       : Case Nos. 10CA4 & 10CA5
    :
    vs.                       : Released: March 11, 2011
    :
    JOHN W. SLAGLE,                : DECISION AND JUDGMENT
    : ENTRY
    Defendant-Appellant.       :
    _____________________________________________________________
    APPEARANCES:
    Timothy Young, Ohio State Public Defender, and Katherine A. Szudy, Ohio
    State Assistant Public Defender, Columbus, Ohio, for Appellant.
    James B. Grandey, Highland County Prosecutor, and Anneka P. Collins,
    Highland County Assistant Prosecutor, Hillsboro, Ohio, for Appellee.
    _____________________________________________________________
    McFarland, J.:
    {¶1} Appellant, John Slagle, appeals his cumulative prison sentences
    issued in Highland County Case Nos. 09CR047 and 0CR086, which, in part
    were ordered to be served consecutively to each other, and consecutive to a
    separate four year sentence imposed by a Montgomery County court,1 for a
    total of ten years. On appeal, Appellant contends that 1) the trial court
    1
    The record on appeal contains a termination entry dated March 15, 2010, issued by the Montgomery
    County Court of Common Pleas, Criminal Division in Case No. 2004 CR 00526, stating that Appellant was
    found guilty after a bench trial of two counts of aggravated theft in violation of R.C. 2913.02(A)(3), third
    degree felonies. The entry further specified that Appellant was sentenced to a four year prison term on
    each count, to be served concurrently, and was ordered to pay restitution in an amount of $521,000.00 to
    the victim, Pickrel, Schaeffer and Ebeling Co., L.P.A.
    Highland App. Nos. 10CA4 & 10CA5                                                                              2
    abused its discretion when it sentenced him to a cumulative prison term of
    11.5 years;2 and 2) the trial court abused its discretion when it imposed fines
    in counts one and two in Highland County Case No. 09CR047.
    {¶2} We disagree, and instead find that Appellant’s sentences were
    not clearly and convincingly contrary to law, and that the trial court did not
    abuse its discretion in imposing some maximum and consecutive sentences.
    As such, Appellant’s first assignment of error is overruled. Further, we
    conclude that the trial court did not abuse its discretion in imposing the fines
    challenged by Appellant. Accordingly, Appellant’s second assignment of
    error is overruled and the judgment sentences imposed by the trial court are
    affirmed.
    FACTS
    {¶3} On March 19, 2010, the Highland County Court of Common
    Pleas sentenced Appellant to a total of six years in prison after a jury found
    him guilty of five felony theft offenses and one count of misdemeanor
    falsification. Appellant’s convictions were based upon his theft of monies
    held in trust for various different clients, by virtue of his position as their
    attorney.
    2
    We note that Appellant has miscalculated his total prison sentence, which is ten years, rather than eleven
    and a half years.
    Highland App. Nos. 10CA4 & 10CA5                                            3
    {¶4} Specifically, Appellant was convicted and sentenced as follows
    in Highland County Case No. 09CR047:
    Count 1:    Aggravated Theft/third degree felony in violation of R.C.
    2913.02(A)(1)/sentenced to three years in prison and ten
    thousand dollar fine/to be served consecutively to count two
    herein and consecutively to the four year sentence imposed by
    the Montgomery County Court of Common Pleas
    Count 2:    Grand Theft /fourth degree felony in violation of R.C.
    2913.02(A)(1)/sentenced to one year in prison and five
    thousand dollar fine/to be served consecutively to count one
    herein and to the four year sentence imposed by the
    Montgomery County Court of Common Pleas
    Count 3:    Grant Theft/fourth degree felony in violation of R.C.
    2913.02(A)(1)/sentenced to one and a half years in prison, a
    five thousand dollar fine and $82,241.78 in restitution/to be
    served concurrently
    Count 5:    Falsification/first degree misdemeanor in violation of R.C.
    2921.13(A)(10)/sentenced to six months in jail/to be served
    concurrently
    {¶5} Further, Appellant was convicted and sentenced as follows in
    Highland County Case No. 09CR086:
    Count 2:    Grant Theft/fourth degree felony in violation of R.C.
    2913.02(A)(1)/sentenced to one and a half years in prison, a
    five thousand dollar fine and $73,576.00 in restitution/to be
    served concurrently with count three herein and consecutively
    with Case No. 09CR047 and the Montgomery County Sentence
    Count 3:    Theft from an Elderly Person/third degree felony in violation of
    R.C. 2913(A)(1)/sentenced to two years in prison, a ten
    thousand dollar fine, and $18,546.00 in restitution/to be served
    concurrently with count two herein and consecutively with
    Case No. 09CR047 and the Montgomery County sentence.
    Highland App. Nos. 10CA4 & 10CA5                                                                            4
    {¶6} Thus, Appellant was sentenced to a total of six years by the
    Highland County Court of Common Pleas, to be served consecutively to a
    four year prison term previously imposed in Montgomery County, for a total
    of ten years. It is from these sentences which Appellant now brings his
    timely appeal, assigning the following errors for our review.
    ASSIGNMENTS OF ERROR
    “I.     THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
    SENTENCED MR. SLAGLE TO A CUMULATIVE PRISON TERM
    OF 11.5 YEARS.
    II.     THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
    IMPOSED FINES IN COUNTS ONE AND TWO IN HIGHLAND
    COUNTY CASE NUMBER 09CR047.”
    ASSIGNMENT OF ERROR I
    {¶7} In his first assignment of error, Appellant contends that the trial
    court abused its discretion when it sentenced him to “cumulative prison
    terms of 11.5 years.” Appellant claims that in light of his age and
    diminishing health the sentence essentially amounts to a life sentence.
    Appellant also claims that he was entitled to a lesser sentence because he
    had no prior criminal record,3 and because “he tried to express remorse for
    his actions, but was not sure how much he could say, given the fact that he
    knew an appeal was going to be pending.” The State properly responds by
    3
    We reject Appellant’s argument that he should have been given a shorter sentence because he was a first
    time offender in light of the fact that Appellant had been convicted of two felony theft counts in
    Montgomery County when he was sentenced in Highland County.
    Highland App. Nos. 10CA4 & 10CA5                                               5
    noting that Appellant’s cumulative sentence was ten years, and contends that
    as trial court’s have discretion to sentence within the statutory framework,
    Appellant’s assignment of error should be denied.
    {¶8} “Appellate courts ‘apply a two-step approach [to review a
    sentence]. First, [we] must 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. If this first
    prong is satisfied, the trial court's decision shall be reviewed under an abuse-
    of-discretion standard.’ ” State v. Smith, Pickaway App. No. 08CA6, 2009-
    Ohio-716 at ¶ 8, quoting State v. Kalish, 
    120 Ohio St. 3d 23
    , 2008-Ohio-
    4912, 
    896 N.E.2d 124
    at ¶ 4. See also State v. Voycik, Washington App.
    Nos. 08CA33 and 08CA34, 2009-Ohio-3669 at ¶ 8.
    {¶9} Here, we find that Appellant’s total combined prison sentence is
    not clearly and convincingly contrary to law. In analyzing whether
    Appellant’s sentence is contrary to law, “[t]he only specific guideline is that
    the sentence must be within the statutory range * * *.” State v. Welch,
    Washington App. No. 08CA29, 2009-Ohio-2655 at ¶ 7, quoting State v.
    Ross, Adams App. No. 08CA872, 2009-Ohio-877 at ¶ 10. See also Voycik at
    ¶ 9.
    Highland App. Nos. 10CA4 & 10CA5                                                 6
    {¶10} In Highland County Case No. 09CR047, Appellant was
    convicted of three felony theft offenses and one misdemeanor falsification
    count. Specifically, Appellant was convicted of aggravated theft in violation
    of R.C. 2913.02(A)(1), which is a third degree felony, and was sentenced to
    a three year prison term. R.C. 2929.14(A)(3) provides that “[f]or a felony of
    the third degree, the prison term shall be one, two, three, four or five years.”
    Thus, Appellant’s three year prison term falls within the statutory range.
    Appellant was also convicted of two counts of grand theft in violation of
    R.C. 2913.02(A)(1), both of which are fourth degree felonies. Appellant
    received twelve months on one of the counts and eighteen months on the
    other count. R.C. 2929.14(A)(4) provides that “[f]or a felony of the fourth
    degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve,
    thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.” Thus,
    Appellant’s twelve and eighteen month prison terms fall within the statutory
    range. Appellant was also convicted of falsification, a first degree
    misdemeanor in violation of R.C. 2921.13(A)(10) and was sentenced to six
    months. R.C. 2929.24(A)(1) provides that the trial court may impose a jail
    term “[f]or a misdemeanor of the first degree, not more than one hundred
    eighty days[.]” Thus, although a maximum sentence, Appellant’s six month
    sentence was within the statutory range.
    Highland App. Nos. 10CA4 & 10CA5                                               7
    {¶11} In Highland County Case No. 09CR047, the trial court ordered
    that the three year and one year sentences on the theft offenses be served
    consecutively to each other, and that the other two sentences were to run
    concurrently, for a total of four years. The court further ordered that the four
    year sentence was to run consecutively to the four year Montgomery County
    sentence. This result is not clearly and convincingly contrary to law.
    {¶12} Next, in Highland County Case No. 09CR086, Appellant was
    convicted of two additional felony theft offenses. Specifically, Appellant
    was convicted of grand theft, a fourth degree felony in violation of R.C.
    2913.02(A)(1), and was sentenced to an eighteen month prison term. As set
    forth above, an eighteen month prison term is within the statutory range per
    R.C. 2929.14(A)(4). Appellant was also convicted of theft from an elderly
    person, a third degree felony in violation of R.C. 2913.02(A)(1) and was
    sentenced to a two year prison term. Again, a two year prison term is within
    the statutory range per R.C. 2929.14(A)(3).
    {¶13} Further, in Highland County Case No. 09CR087, while the trial
    court ordered the two sentences be concurrent to each other, it ordered that
    they be served consecutively to the sentences in Case No. 09CR047, and
    also consecutive to the Montgomery County sentence, for a sum total of ten
    years. Again, this result is not clearly and convincingly contrary to law.
    Highland App. Nos. 10CA4 & 10CA5                                                 8
    Thus, based on the foregoing, Appellant’s total combined sentence of 10
    years is within the statutory range for his various crimes and is not clearly
    and convincingly contrary to law.
    {¶14} Additionally, courts must consider the general guidance factors
    set forth in R.C. 2929.11 and 2929.12. State v. Foster, 
    109 Ohio St. 3d 1
    ,
    2006-Ohio-856, 
    845 N.E.2d 470
    , at ¶ 42; Kalish at ¶ 13. The trial court’s
    sentencing entries stated that (1) “[a]fter weighing the seriousness and
    recidivism factors, prison is consistent with the purposes and principles of
    Section 2929.11 ORC” and (2) the court had “considered the record, oral
    statements, any victim impact statements, and the pre-sentence report, as
    well as all factors required by Section 2929.12 ORC.” Therefore, we find
    that the trial court complied with all applicable rules and statutes in
    sentencing Appellant. Thus, we find that Appellant’s sentence is not clearly
    and convincingly contrary to law.
    {¶15} Next, we address the second prong of the two-step approach.
    That is, whether the trial court abused its discretion in imposing Appellant’s
    sentence. As we have already noted, the term “abuse of discretion” implies
    an attitude on the part of the trial court that is unreasonable, arbitrary, or
    unconscionable. State v. Adams (1980), 
    62 Ohio St. 2d 151
    , 157, 
    404 N.E.2d 144
    . “In the sentencing context, we review the trial court's selection of the
    Highland App. Nos. 10CA4 & 10CA5                                                9
    sentence within the permissible statutory range.” Smith at ¶ 17, quoting
    Kalish at ¶ 17.
    {¶16} Sentencing courts “have full discretion to impose a prison
    sentence within the statutory range and are [not] required to make findings
    or give their reasons for imposing maximum, consecutive, or more than the
    minimum sentences.” Foster at paragraph seven of the syllabus; see also
    Kalish at ¶ 11. As mentioned above, however, courts must still consider the
    general guidance factors set forth in R.C. 2929.11 and 2929.12.
    Additionally, trial courts “may consider any other factors that are relevant to
    achieving the purposes and principles of sentencing.” State v. Whitt, Clark
    App. No. 2010CA3, 2010-Ohio-5291 at ¶ 50; relying on R.C. 2929.12.
    {¶17} Based upon our review of the record, we cannot find an abuse
    of discretion related to Appellant’s individual sentences or cumulative
    sentence. Here, though not required to do so, the trial court explained its
    reasons for imposing, with respect to some of the counts, maximum and
    consecutive prison sentences. At the sentencing hearing, the trial court
    expressed its frustration with Appellant’s lack of explanation or remorse for
    his actions as follows:
    “THE COURT: Six years this has been going on, and I haven’t heard an
    ‘I’m sorry.’ I haven’t even heard an ‘I’m sorry to my wife and family.’
    Which is not going to hurt you. I haven’t heard anything other than ‘I don’t
    want the day of reckoning to happen.[’] * * * So again, I’m going to give
    Highland App. Nos. 10CA4 & 10CA5                                              10
    you an opportunity to tell me why? You don’t have to. But, if you want to
    tell me why, I’ll take that into consideration, other than you’re a greedy
    individual who stole hundreds and hundreds of thousands of dollars from
    your lawfirm and your trusted clients, for your own benefit for the condo in
    Hilton Head or whatever else you did with the money.”
    {¶18} Then, the trial court further stated as follows prior to imposing
    the sentences:
    “THE COURT: I’ll just preface by just making a few comments, because
    even though it’s not necessary under today’s law, I think it’s very
    appropriate to advise all the people involved and also, uh, you know the
    people who are listening, not only the people who aren’t here, why I’m
    doing what I’m doing, but obviously I’m aware of the offenses in
    Montgomery County and the pre-sentence investigation sets a little bit of
    that information; I have no further information other than what’s in the pre-
    sentence investigation. But that’s a serious matter; these are serious matters.
    There isn’t anything more serious of a non-violent nature, uh, than having an
    attorney steal from trusted clients, uh, who are in some cases too old and
    other cases too infirm to even know what’s going on. You held a public
    trust, and you held a private trust for many years, and you violated that trust
    or used that trust to facilitate the offenses. As I’ve said, I’ve heard nothing
    to explain to me why this illegal conduct took place for such a long period of
    time; nor have I heard any remorse whatsoever with respect to this.”
    {¶19} After imposing Appellant’s prison terms, the trial court found
    that
    “the shortest prison term would demean the seriousness of your conduct, and
    would not adequately protect the public from future crime, and consecutive
    sentences have been imposed because of the innocent trusting victims, and
    your profession which you swore to uphold the harm to those two are so
    great and unusual that a single prison term would not be sufficient to reflect
    the seriousness of your conduct.”
    {¶20} In light of these findings, we cannot conclude that the trial court
    abused its discretion by sentencing Appellant to consecutive prison terms of
    Highland App. Nos. 10CA4 & 10CA5                                                11
    six years, to be served consecutively to a four year Montgomery County
    sentence, for a total of ten years.
    {¶21} Furthermore, we cannot find an abuse of discretion in
    Appellant’s total combined sentence. Taking into consideration the
    Montgomery County sentence, Appellant received a total of ten years in
    prison for seven different felony theft offenses and one misdemeanor count
    of falsification. The Highland County theft offenses alone involved four
    different clients. We cannot find an abuse of discretion under these
    circumstances.
    {¶22} Accordingly, we overrule Appellant’s first assignment of error.
    ASSIGNMENT OF ERROR II
    {¶23} In his second assignment of error, Appellant contends that the
    trial court abused its discretion when it imposed a ten thousand dollar fine in
    count one and a five thousand dollar fine in count two in Highland County
    Case No. 09CR047. Appellant argues that because he had made full
    restitution to the victim of these counts prior to trial, imposing a fine was
    unreasonable. He cites no statutory or case law in support of his
    contentions. For the following reasons, we reject Appellant’s assertions.
    {¶24} As properly noted by the State, R.C. 2929.18(A)(3)(c) and (d)
    provide that a fine may be imposed for a third degree felony of not more
    Highland App. Nos. 10CA4 & 10CA5                                              12
    than ten thousand dollars, and for a fourth degree felony of not more than
    five thousand dollars. Additionally, R.C. 2929.18 governs financial
    sanctions, including restitution and fines, and provides in (A) that “the court
    imposing a sentence upon an offender for a felony may sentence the
    offender to any financial sanction or combination of financial sanctions
    authorized under this section * * * .” (Emphasis added).
    {¶25} Here, the trial court made a specific finding at the sentencing
    hearing with regard to its decision to impose fines. The trial court stated as
    follows:
    “For purposes of the record, the Court feels a fine is appropriate in addition
    to [sic] prison term, because of the nature of the offense and the violation of
    the trust.” Thus, based upon the provisions of R.C. 2929.18(A)(3)(c) and
    (d), which clearly permit the imposition of fines in the amounts imposed, as
    well as the reasoning on the record by the trial court, we cannot conclude
    that the trial court abused its discretion in imposing the fines challenged by
    Appellant. Accordingly, Appellant’s second assignment of error is
    overruled.
    {¶26} Having overruled both of Appellant’s assignments of error, the
    decision and sentence of the trial court is affirmed.
    JUDGMENT AFFIRMED.
    Highland App. Nos. 10CA4 & 10CA5                                               13
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE AFFIRMED and that the
    Appellee recover of Appellant costs herein taxed.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing
    the Highland County Common Pleas Court to carry this judgment into
    execution.
    IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
    UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
    COURT OR THIS COURT, it is temporarily continued for a period not to
    exceed sixty days upon the bail previously posted. The purpose of a
    continued stay is to allow Appellant to file with the Supreme Court of Ohio
    an application for a stay during the pendency of proceedings in that court. If
    a stay is continued by this entry, it will terminate at the earlier of the
    expiration of the sixty day period, or the failure of the Appellant to file a
    notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
    period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
    Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
    appeal prior to expiration of sixty days, the stay will terminate as of the date
    of such dismissal.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    Exceptions.
    Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
    For the Court,
    BY: _________________________
    Matthew W. McFarland, Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final
    judgment entry and the time period for further appeal commences from
    the date of filing with the clerk.
    

Document Info

Docket Number: 10CA4, 10CA5

Citation Numbers: 2011 Ohio 1463

Judges: McFarland

Filed Date: 3/11/2011

Precedential Status: Precedential

Modified Date: 10/30/2014