State v. Freeman , 2019 Ohio 669 ( 2019 )

[Cite as State v. Freeman, 2019-Ohio-669.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-18-16
v.
RICHARD B. FREEMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 17CR0184
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: February 25, 2019
APPEARANCES:
Perry R. Parsons for Appellant
Raymond Kelly Hamilton for Appellee
Case No. 14-18-16
SHAW, J.
{¶1} Defendant-appellant, Richard B. Freeman (“Freeman”), brings this
appeal from the August 21, 2018, judgment of the Union County Common Pleas
Court sentencing Freeman to eighteen months in prison after he was convicted in a
jury trial of Receiving Stolen Property in violation of R.C. 2913.51(A)/(C), a felony
of the fourth degree. On appeal, Freeman argues that the trial court erred by
imposing a maximum prison term on him, and that the trial court erred by failing to
give him jail-time credit in this matter.
Relevant Facts and Procedural History
{¶2} On September 6, 2017, Freeman was indicted for Receiving Stolen
Property in violation of R.C. 2913.51(A)/(C), a felony of the fourth degree. It was
alleged that he received, retained or disposed of a 2013 Honda Civic, the property
of Germain Honda of Dublin (“Germain”), knowing or having reasonable cause to
believe that the property had been obtained through commission of a theft offense.
Freeman pled not guilty to the charge and his case proceeded to a jury trial on
August 20-21, 2018.
{¶3} At trial, the State presented evidence that James Ferguson turned in his
leased 2013 Honda Civic to Germain in Dublin, Ohio, on July 14, 2017. The vehicle
was received and was placed in one of Germain’s lots, which spanned multiple
properties and over ten acres. There were hundreds of preowned vehicles in
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Germain’s lots. Germain officially purchased the 2013 Honda Civic at issue on July
17, 2017.
{¶4} On July 18, 2017, Deputy Phipps of the Union County Sheriff’s
Department conducted a traffic stop involving Freeman, who was driving the same
2013 Honda Civic that had been turned into Germain days prior. The traffic stop
occurred between 1 and 2 a.m.
{¶5} During the traffic stop, Freeman made a number of false statements
regarding whether he had a license and his social security number, making it
difficult for Deputy Phipps to initially identify him. Once Deputy Phipps finally
identified Freeman, he learned that Freeman did not have a license. The 2013 Honda
Civic was also not registered to Freeman. Freeman told Deputy Phipps that he was
borrowing it from a friend with the name “Miller,” though he could not provide
“Miller’s” contact information or a location that Deputy Phipps could contact
“Miller.”
{¶6} Later that same day, Tim Gould, a pre-owned sales manager at Germain
was contacted by an officer who indicated that one of Germain’s vehicles, the 2013
Honda Civic, had been found being driven by Freeman. Gould testified that he then
checked and found that the 2013 Honda Civic was not on the lot as it was supposed
to be, and then he reported that it had been stolen. He indicated that at no time was
Freeman given permission to take the vehicle.
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{¶7} Freeman spoke with the police on two subsequent occasions and still
could not provide the contact information of any individual who had purportedly
loaned him the vehicle.
{¶8} The jury found Freeman guilty of Receiving Stolen Property as
indicted. His case then proceeded to sentencing, wherein the trial court noted that
Freeman had a criminal history dating back to 1969, with as many as fifteen felonies.
The convictions included a number of prior Receiving Stolen Property charges.
Based on his criminal history, the trial court sentenced Freeman to a maximum
eighteen month prison term.
{¶9} A judgment entry memorializing Freeman’s sentence was filed August
21, 2018.1 It is from this judgment that Freeman appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1
The trial court erred when it imposed a maximum sentence upon
the Appellant for a felony of the fourth degree.
Assignment of Error No. 2
The trial court erred when it failed to give the Appellant credit
for jail time.
First Assignment of Error
{¶10} In Freeman’s first assignment of error, he argues that the trial court
erred by imposing a maximum sentence on him. Specifically, he argues that the
1
This judgment entry was subsequently modified by an entry the following day, notifying Freeman of his
right to appeal.
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trial court only found one of the factors under R.C. 2929.12(B) indicating that
Freeman’s conduct was more serious than conduct normally constituting the
offense, and that was not sufficient to support a maximum prison term. Freeman
argues that community control was a more appropriate sanction than a maximum
prison term.
Standard of Review
{¶11} Revised Code 2953.08(G)(2) provides that when reviewing felony
sentences, a reviewing court may increase, reduce, or modify a sentence, or it may
vacate and remand the matter for resentencing, only if it clearly and convincingly
finds that either the record does not support the sentencing court’s statutory findings
or the sentence is contrary to law. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-
Ohio-3838, ¶ 10, citing State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-
99, ¶ 7.
Analysis
{¶12} “ ‘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 or more than [a] minimum sentence[].’ ” State
v. Castle, 2nd Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v.
King, 2nd Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45. Nevertheless, when
exercising its sentencing discretion, a trial court must consider the statutory policies
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that apply to every felony offense, including those set out in R.C. 2929.11 and R.C.
2929.12. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.
{¶13} Revised Code 2929.11 provides that sentences for a felony shall be
guided by the overriding purposes of felony sentencing: “to protect the public from
future crime by the offender and others, to punish the offender and to promote the
effective rehabilitation of the offenders[.]” R.C. 2929.11(A). In order to comply
with those purposes and principles, R.C. 2929.12 instructs a trial court to consider
various factors set forth in the statute relating to the seriousness of the offender’s
conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(F).
{¶14} In the case sub judice, Freeman was convicted of Receiving Stolen
Property in violation of R.C. 2913.51(A)/(C), a felony of the fourth degree. Revised
Code 2929.14(A)(4) provides, “[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, the trial court’s sentence of
eighteen months was within the statutory range for a felony of the fourth degree.
However, Freeman argues that the record does not support a maximum sentence in
this matter.
{¶15} More specifically, Freeman argues that the trial court’s sentencing
entry had a checklist for all of the sentencing factors in R.C. 2929.12 regarding
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seriousness of the offense, and only one subsection was checked indicating that the
offense was more serious than conduct normally constituting the offense. While a
review of the trial court’s entry indicates this is true for that section, Freeman
ignores that the trial court “checked” several factors under R.C. 2929.12(D)
indicating that Freeman was likely to commit future crimes, and the trial court found
that there were no factors under R.C. 2929.12(E) indicating that Freeman was not
likely to commit future crimes. Moreover, the trial court expressed clear concern
with Freeman’s significant criminal history.
{¶16} Since 1969, Freeman had been convicted of at least fifteen felonies,
eleven of them since 1985. His prior convictions included similar offenses to the
one before us, such as an Auto Theft in 2007, a Burglary, and multiple Receiving
Stolen Property convictions. After reviewing Freeman’s criminal history, the trial
court stated that “Given your prior record, * * * a maximum sentence is warranted
in this case.” (Tr. at 17).
{¶17} On appeal, we cannot find that the trial court’s sentence was clearly
and convincingly contrary to law. The trial court carefully analyzed all of the
appropriate sentencing statutes and conducted a thorough examination of Freeman’s
lengthy criminal history. After reviewing all of these things, the trial court elected
to impose a maximum eighteen month prison term on Freeman. The trial court’s
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sentence was thus supported by the record. Therefore, Freeman’s first assignment
of error is overruled.
Second Assignment of Error
{¶18} In Freeman’s second assignment of error, he argues that the trial court
erred by neglecting to give him jail-time credit in this matter. The State actually
concedes in its brief that the trial court failed to properly give Freeman jail-time
credit, and urges this Court to remand this matter so that Freeman may receive
proper credit.
{¶19} From the record before us, it does appear that Freeman would be
entitled to jail-time credit. While denying a pretrial motion to dismiss on speedy
trial grounds that Freeman had filed, the trial court noted in its entry that the parties
were in agreement that Freeman was incarcerated for 64 days awaiting trial on the
charges in this case. Freeman argues on appeal that the trial court failed to give him
credit for these days at sentencing, and the State agrees.
{¶20} On the basis of the record before us we are compelled to reverse this
matter so that Freeman may receive appropriate jail-time credit. Therefore,
Freeman’s second assignment of error is sustained.
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Conclusion
{¶21} For the foregoing reasons the judgment of the Union County Common
Pleas Court is affirmed in part, and reversed in part, and this cause is remanded to
the trial court for further proceedings.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
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