State v. Smith ( 2016 )

[Cite as State v. Smith, 2016-Ohio-3483.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2015-CA-25
:
v. : T.C. NO. 15CR67
:
JACOB H. SMITH : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the __17th__ day of ____June____, 2016.
...........
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
MARIA L. RABOLD, Atty. Reg. No. 0089080, 443 E. Central Avenue, Miamisburg, Ohio
45342
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Jacob H. Smith appeals from a judgment of the Champaign County Court of
Common Pleas, which found him guilty of domestic violence, a fourth-degree felony,
sentenced him to 18 months in prison, and ordered that his sentence be served
consecutively to a sentence previously imposed in Logan County. Smith challenges the
imposition of consecutive sentences. For the following reasons, the trial court’s
-2-
judgment will be affirmed.
I. Procedural History
{¶ 2} In May 2015, Smith was indicted for domestic violence, in violation of R.C.
2919.25(A), a third-degree felony, based on an incident involving his girlfriend on April
28, 2015. The indictment alleged that Smith had previously been convicted of or pled
guilty to domestic violence or offenses of violence involving family members in three prior
cases: Franklin M.C. No. 2011 CRB 13904 (domestic violence); Fairfield M.C. No. CRB
0803170 (endangering children); and Franklin C.P. No. 2000 CR 5923 (endangering
children).
{¶ 3} On June 15, 2015, Smith pled guilty to an amended charge of domestic
violence, a fourth-degree felony. As part of the plea, the State agreed to delete
references to Smith’s prior convictions for endangering children, to recommend an 18-
month prison term at sentencing, and to remain silent on whether the sentence should be
served concurrently with or consecutive to a Logan County sentence. (At the time of the
plea, Smith was on community control in Logan County for burglary.) Smith agreed to a
joint recommendation of a maximum sentence of 18 months in prison. The trial court
accepted the plea, ordered a presentence investigation, and scheduled sentencing for
July 14.
{¶ 4} At sentencing, the trial court heard from the prosecutor and defense
counsel; Smith declined to speak on his own behalf. Both parties indicated that they had
agreed to a maximum 18-month sentence. Defense counsel asked the trial court to
order that the sentence be served concurrently with Smith’s sentence in Logan County;
Smith’s community control had been revoked, and counsel stated that the Logan County
-3-
court had imposed a two-year sentence.
{¶ 5} The court imposed the agreed 18-month sentence, and it ordered Smith’s
sentence to be served consecutively to the prison term imposed by Logan County. The
trial court also ordered Smith to pay a fine of $250 and court costs.
{¶ 6} In imposing consecutive sentences, the trial court found that consecutive
sentencing was necessary to protect the public from future crime or to punish Smith, that
consecutive sentences were not disproportionate to the seriousness of Smith’s conduct
and to the danger he posed to the public, that Smith committed one or more of the multiple
offenses while he was awaiting trial or sentencing or was on community control or post-
release control, and that Smith’s criminal history demonstrated that consecutive
sentences were necessary to protect the public from future crime by him. The trial court’s
findings were incorporated in the court’s judgment entry, filed on July 15, 2015.
{¶ 7} Smith appeals from the trial court’s judgment.
II. Imposition of Consecutive Sentences
{¶ 8} In his sole assignment of error, Smith claims that “the trial court did not
conduct the proper analysis required by O.R.C. § 2929.14(C) prior to issuing a
consecutive sentence and an imposition of such sentence is not supported by the record.”
{¶ 9} Prior to imposing any sentence, the trial court is required to consider the
purposes and principles of felony sentencing in R.C. 2929.11 and R.C. 2929.12. State
v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. The overriding
purposes of felony sentencing, as set forth in R.C. 2929.11(A), are “to protect the public
from future crime by the offender and others and to punish the offender using the
minimum sanctions that the court determines accomplish those purposes without
-4-
imposing an unnecessary burden on state or local government resources.” These
purposes must be taken into account when the trial court imposes sentences for each
offense, such as when determining whether to impose community control versus a prison
sentence or when determining the appropriate prison term for the offense.
{¶ 10} After determining the sentence for a particular crime, a sentencing judge
has discretion to order an offender to serve individual counts of a sentence consecutively
to each other or to sentences imposed by other courts. R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds [1] that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and [2] that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public, and [3] if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
-5-
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 11} In imposing consecutive sentences, the trial court must make the statutory
findings and incorporate them into its sentencing entry, but the trial court is not required
to state reasons to support its findings. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 37.
{¶ 12} The Ohio Supreme Court has made clear that felony sentences are longer
reviewed under an abuse of discretion standard but, instead, in accordance with the
standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, Ohio Sup. Ct. Slip
Opinion No. 2016-Ohio-1002, __ N.E.3d __. Accord State v. Rodeffer, 2013-Ohio-5759,
5 N.E.3d 1069 (2d Dist.). “On appeals involving the imposition of consecutive sentences,
R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the
findings underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ ” Bonnell at ¶
28.
{¶ 13} There are two ways that a defendant can challenge consecutive sentences
on appeal. “First, the defendant can argue that consecutive sentences are contrary to
law because the court failed to make the necessary findings required by R.C.
2929.14(C)(4). Second, the defendant can argue that the record does not support the
findings made under R.C. 2929.14(C)(4).” (Citations omitted.) State v. Adams, 2d Dist.
Clark No. 2014 CA 13, 2015-Ohio-1160, ¶ 17. Smith raises both types of arguments.
-6-
{¶ 14} In the present case, the trial court made the statutory findings required by
R.C. 2929.14(C)(4) both at the sentencing hearing and in its judgment entry. The trial
court found that consecutive sentencing was necessary to protect the public from future
crime or to punish Smith and that consecutive sentences were not disproportionate to the
seriousness of Smith’s conduct and to the danger he posed to the public. The trial court
further found that Smith committed one or more of the multiple offenses while he was
awaiting trial or sentencing or was on community control or post-release control, and that
his criminal history demonstrated that consecutive sentences were necessary to protect
the public from future crime by him.
{¶ 15} We have encouraged trial courts to offer an explanation of the rationale
(both case-specific and statutory) for their sentences. Adams at ¶ 18. Such an
explanation “can only increase the public understanding of a particular sanction and thus
the perceived legitimacy of the criminal justice system.” Id. The trial court provided a
detailed explanation of its analysis in deciding to impose an 18-month sentence, but it did
not expound upon the statutory findings under R.C. 2929.14(C)(4). Nonetheless, the
trial court was not required to provide reasons to support its findings under R.C.
2929.14(C)(4). Id.; Bonnell at ¶ 37. The trial court’s imposition of consecutive
sentences was not contrary to law.
{¶ 16} Upon review of the record, we also cannot clearly and convincingly find that
the record does not support the imposition of consecutive sentences.
{¶ 17} At the time of the offense, Smith and the complainant had been in a
relationship for about three years. According to the arresting officer’s statement in the
presentence investigation report, the officer went to Smith’s and his girlfriend’s residence
-7-
on a report that the girlfriend had threatened to kill herself; the girlfriend reportedly had
expressed suicidal ideations in the past. When no one answered the door to the
residence, the officer spoke with a neighbor, who contacted Smith by telephone. Smith
informed the neighbor that everything was fine. When the officer asked Smith (via the
neighbor) to ask his girlfriend to come out of the apartment and speak with him (the
officer), Smith again said that everything was fine. When the girlfriend ultimately came
to the door, officers noticed marks around her eyes, mouth, forehead, and chin; the
girlfriend initially told the officers that the injuries were self-inflicted. The girlfriend later
stated that she had argued with Smith and that Smith pointed his finger in her face,
choked her, told her that she was worthless and deserved to die, and hit her several times
in the face.
{¶ 18} In a statement provided to the presentence investigator, Smith denied the
allegations during the presentence investigation. He stated that he and his girlfriend had
some drinks and got into a fight over children and money. Smith stated that his girlfriend
tried to kill herself and then “went off” on him, scratching him. Smith claimed that he
pushed his girlfriend off of him and that she fell and hit her mouth on a chair. Smith wrote
that he felt “really bad for what happened. I wish I could take it back now but it is too late
for that now.” Smith told the investigator that he had not spoken with the complainant
since the offense, but he wanted to continue their relationship.
{¶ 19} Smith’s criminal history began when he was 20 years old, when he was
convicted of endangering children, a third-degree felony. That offense involved physical
injuries to a baby, including injuries that were consistent with the child’s having been
violently shaken. Smith had a subsequent offense of endangering children, a first-
-8-
degree misdemeanor, in 2009, and was convicted of domestic violence, a misdemeanor,
in 2011. Smith’s criminal history also included drug-related offenses in 2005, 2006, and
2012; violation of a protection order in 2009; disorderly conduct in 2011 and 2013;
burglary, a third-degree felony, in 2012; and several community control/probation
violations.
{¶ 20} At the time of the instant offense, Smith was 33 years old, and he was on
community control in Logan County for the burglary conviction. On July 7, 2015, the
Logan County court revoked Smith’s community control and imposed two years in prison.
Smith had previously served time in prison as a result of community control violations in
prior cases – 12 months on the 2002 endangering children conviction; 10 months on a
2003 possession of cocaine conviction; and 11 months on a 2006 aggravated possession
of drugs conviction.
{¶ 21} Smith has been diagnosed with depression, bipolar disorder, and panic
disorder, and he reported that he had last attended counseling eight months before
sentencing. Smith was prescribed medication, but he stated that he had not taken his
medication since approximately three weeks before the instant offense. Smith told the
court at sentencing that he has lost his medical card.
{¶ 22} Upon questioning by the court at sentencing, Smith acknowledged that he
had been in a residential program at West Central as part of his Logan County community
control. Smith stated that he did not use his anger management and family relationship
tools on April 28, the day of the offense, because “we were both drinking so I didn’t have
a clear mind.” Smith also attributed the familial conflicts to not taking his medication.
{¶ 23} Upon review of the record, it is clear that Smith committed the instant
-9-
domestic violence while he was on community control for the burglary case in Logan
County. Smith had a prior domestic violence case and two prior cases of endangering
children, and various other convictions and community control/probation violations in
nearly each year since 2002. In this case, we do not clearly and convincingly find either
of the following: (1) that the record does not support the trial court findings, or (2) that the
sentence is otherwise contrary to law. R.C. 2953.08(G)(2). Since we cannot find by clear
and convincing evidence that the record does not support the sentencing decision, we
must affirm. Marcum, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-1002, __ N.E.3d __, at
¶ 7, ¶ 23.
{¶ 24} Smith’s assignment of error is overruled.
III. Conclusion
{¶ 25} The trial court’s judgment will be affirmed.
.............
FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Jane A. Napier
Maria L. Rabold
Hon. Nick A. Selvaggio