State v. Pyles , 2014 Ohio 4146 ( 2014 )

[Cite as State v. Pyles, 2014-Ohio-4146.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 BE 11
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MICHAEL C. PYLES )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Belmont County, Ohio
Case No. 12 CR 240
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Christopher Berhalter
Belmont County Prosecutor
Atty. Scott A. Lloyd
Assistant Prosecuting Attorney
147-A West Main Street
St. Clairsville, Ohio 43950
For Defendant-Appellant: Atty. Michelle G. Miller
802 Third Street
P.O. Box 217
Brilliant, Ohio 43913
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 18, 2014
[Cite as State v. Pyles, 2014-Ohio-4146.]
WAITE, J.
{¶1} Appellant Michael C. Pyles appeals his four-year prison term on counts
of burglary, safecracking and theft. Appellant entered into a plea agreement in which
additional counts of burglary, safecracking and vandalism were dismissed, and the
prosecutor agreed to recommend a prison term of three years. Appellant argues that
the court erred in not adopting the prosecutor’s recommendation and that the
maximum sentence of four years in prison is not supported by the record. A
sentencing judge is not required to adopt a prosecutor's recommended sentence,
and is not required to make any particular findings in order to impose maximum
sentences. At sentencing, it was determined that Appellant violated his bond by
testing positive for drugs, showed no remorse at sentencing by blaming the victim for
his crime, and had a long history of juvenile and adult crimes. The record supports
the imposition of maximum sentences, and the judgment of the trial court is affirmed.
Procedural History
{¶2} Appellant was indicted on October 3, 2012 on two counts of burglary
(R.C. 2911.12(A)(2), fourth degree felonies), two counts of safecracking (R.C.
2911.31(A), fourth degree felonies), one count of theft (R.C. 2913.02(A)(1), fifth
degree felony), and one count of vandalism (R.C. 2909.05(B)(1)(b)). He was
accused of burglarizing and breaking into three safes at the home of Joe and Vikki
Charleton, stealing guns, coins, jewelry and cash. Appellant was personally
acquainted with the Charleton's and their daughter, and had stayed in their home.
On February 15, 2013, he entered into a Crim.R. 11 plea agreement. He pleaded
guilty to one count of burglary, one count of safecracking, and one count of theft.
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The prosecutor agreed to dismiss the other charges and recommend a three-year
prison term. The prosecutor also agreed to recommend that the sentence in this
case run concurrently with the sentence about to be imposed for felony charges
pending in West Virginia. The court accepted Appellant’s plea in a judgment entry
filed on February 26, 2013.
{¶3} Sentencing took place on April 12, 2013. Appellant did not appear at
the scheduled time, although he did eventually arrive at the hearing. When given a
chance to speak, he blamed the victims for causing the crime. As a basis for
disregarding the prosecutor’s recommendation on sentencing and imposing the
maximum sentence on each charge, the court noted, among other things, Appellant's
long juvenile and adult criminal record, his positive test for illegal drugs that occurred
just prior to the sentencing hearing, his unresponsiveness to prior criminal sanctions,
his lack of remorse, and that several of the charges had been dismissed. In addition
to the maximum sentences on each charge, the court ordered that they be served
consecutively, for a total prison term of four years. He received 12 months in prison
for theft, 18 months for safecracking, and 18 months for burglary, to be served
consecutively. The court filed its judgment on April 15, 2013. This timely appeal
followed on May 13, 2013. Appellant has one assignment of error on appeal,
challenging the maximum sentences.
ASSIGNMENT OF ERROR
The trial court erred by imposing the maximum, consecutive sentence
where the record did not support the sentence and the sentence was
contrary to law constituting an abuse of the trial court's discretion in
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contravention of R.C.§2929.11 and R.C. §2953.08 and in contravention
of the negotiated plea agreement with agree-upon [sic] sentence.
{¶4} Appellant argues that a maximum sentence is not warranted in this
case because none of the R.C. 2929.12 factors indicating that the crime is more
serious than normal are supported by the record, and that there are mitigating factors
in this case. Appellant's argument is not persuasive.
{¶5} This Court employs the felony sentencing standard of review as set
forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. State
v. Hill, 7th Dist. No. 13 MA 1, 2014-Ohio-919, ¶20. This review involves a two-step
approach. First, the court examines the sentence to determine if it is “clearly and
convincingly contrary to law.” Kalish at ¶26. In examining “all applicable rules and
statutes,” the sentencing court must consider R.C. 2929.11 and R.C. 2929.12. Id. at
¶13-14. If the sentence is not clearly and convincingly contrary to law, the court's
discretion in selecting a sentence within the permissible statutory range is subject to
review for abuse of discretion. Id. at ¶17. We apply an abuse of discretion standard
to determine whether the sentence satisfies R.C. 2929.11 and R.C. 2929.12. Id. at
¶17. The list of factors regarding the seriousness of the crime or whether mitigating
circumstances exist, found in R.C. 2929.12, is a non-exclusive list, and the
sentencing court may consider any factor it deems appropriate. State v. Dotson, 7th
Dist. No. 06 BE 28, 2007-Ohio-1128, ¶14, citing State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470.
{¶6} Although the trial court is required to consider the factors set forth in
R.C. 2929.12, the trial court is not required either to discuss the factors on the record
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or even state that the factors were considered, so long as the record allows the
reviewing court to determine that the proper consideration occurred. State v. Scott,
3d Dist. No. 6-07-17, 2008-Ohio-86. Even if the record is completely silent as to the
reasons that the trial court imposed a prison sentence, the court's sentencing
decision is presumed to be correct. Kalish at ¶18, fn. 4.
{¶7} We also note that a sentencing court may consider charges that have
been dismissed or reduced pursuant to a plea agreement. State v. Starkey, 7th Dist.
No. 06MA110, 2007-Ohio-6702, ¶2; State v. Cooey, 46 Ohio St.3d 20, 35, 544
N.E.2d 895 (1989).
{¶8} A sentencing judge is not mandated to accept the prosecutor's
recommended sentence in cases involving Crim.R. 11 plea bargains: “[T]he trial
judge is not bound by the prosecutor's recommendation and * * * the ultimate
sentence is up to the discretion of the trial court. ‘A trial court does not err by
imposing a sentence greater than “that forming the inducement for the defendant to
plead guilty when the trial court forewarns the defendant of the applicable penalties,
including the possibility of imposing a greater sentence than that recommended by
the prosecutor.” ’ State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796
N.E.2d 1003, ¶13, quoting State v. Pettiford (Apr. 22, 2002), 12th Dist. No. CA2001-
08-014. Crim.R. 11 does not contemplate that the defendant and the prosecutor will
bargain for a specific punishment, given that the punishment is either established by
statute or left to the discretion of the sentencing judge. State v. Mathews (1982), 8
Ohio App.3d 145, 146, 8 OBR 202, 456 N.E.2d 539.” State v. Gant, 7th Dist. No. 04
MA 252, 2006-Ohio-1469, ¶23.
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{¶9} Appellant contends that his abuse of drugs is a mitigating factor the
court should have considered, but this is not listed as a mitigating factor in R.C.
2929.12. In fact, R.C. 2929.12(D)(4) lists the following as a factor indicating that the
offender is more likely to commit future crimes: “The offender has demonstrated a
pattern of drug or alcohol abuse that is related to the offense, and the offender
refuses to acknowledge that the offender has demonstrated that pattern, or the
offender refuses treatment for the drug or alcohol abuse.” In this case, the record
reflects that the crimes occurred so that Appellant could obtain money to purchase
illegal drugs. This is a factor supporting a more severe penalty, not a mitigating
factor.
{¶10} Appellant believes he is entitled to a statutory presumption in favor of
the minimum prison term because he has never served a previous prison term, citing
R.C. 2929.14(B). There is no such presumption in R.C. 2929.14(B). A former
version of the statute did contain this presumption, but it was declared
unconstitutional in Foster, supra.
{¶11} Of the five factors listed in R.C. 2929.12(D) that indicate a greater
likelihood that the offender will commit future crimes, Appellant satisfied all five: he
committed the offense while under probation, was previously adjudicated a
delinquent child, failed to respond favorably to prior sanctions, demonstrated a
pattern of drug or alcohol abuse, and he showed no genuine remorse. Appellant
satisfied none of mitigating factors indicating that he was unlikely to commit future
crimes. Protecting the public from future harm was one of the primary reasons the
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court imposed the maximum sentences, and the record certainly supports the
conclusion that Appellant has a high risk of committing future crimes.
{¶12} The trial court noted many other factors that were considered at
sentencing, and specifically stated that it considered the purposes and principles of
sentencing under R.C. 2929.11, as well as the sentencing factors in R.C. 2929.12.
The court mentioned that there was an outstanding warrant for Appellant's arrest due
to a positive drug test for cocaine, morphine and other drugs. There were also
outstanding felony charges pending in West Virginia, and the resolution of those
charges was part of the plea bargain process in this case. Appellant acknowledged
that he had tested positive for drugs while awaiting sentencing. He had 8 juvenile
court convictions for crimes ranging from traffic offenses to theft and receiving stolen
property. He had 11 adult convictions including theft, disorderly conduct, OVI,
possessing drug paraphernalia, and fleeing and eluding. And we take note that
Appellant was only 25 years old at the time of sentencing. When asked to give a
statement, Appellant started to apologize, but immediately began to blame the
victims, accusing them of being drug dealers. The court considered Appellant's long
history of criminal violations, two violations of court orders, his failure to respond to
previous sanctions, his pending charges in West Virginia, the fact that three charges
were dismissed as part of the plea agreement, his violation of community control
sanctions, his failure to show remorse, his escalating pattern of criminal activity, his
positive drug test when he was awaiting sentencing, and his escalating drug abuse
with no good faith attempt at treatment. The court also noted that Appellant had
never spent time in prison but did have felony charges on his record. Rather than
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establishing error, the record contains thorough justification for imposing maximum
sentences, and Appellant’s assignment of error is overruled.
Conclusion
{¶13} Appellant believes that the maximum sentence of four years in prison
was not warranted in this case, and that the trial judge should have accepted the
prosecutor’s recommendation of a three-year prison term. A trial court has discretion
to impose any sentence within the statutory range. State v. Mathis, 109 Ohio St.3d
54, 2006-Ohio-855, 846 N.E.2d 1. Since the sentence imposed is within the range
permitted by law, and the record shows that the trial court carefully considered the
factors found in R.C. 2929.11 and 2929.12, there was no abuse of discretion in
imposing two eighteen-month prison terms and one twelve-month term for a total
maximum sentence of four years in prison. Appellant has failed to demonstrate that
any abuse of discretion has occurred and the assignment of error is overruled. The
judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.