State v. Frasca ( 2022 )

[Cite as State v. Frasca, 2022-Ohio-2924.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NOS. 2021-T-0059
2022-T-0001
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
MICHAEL R. FRASCA, JR.,
Trial Court Nos. 2021 CR 00485
Defendant-Appellant. 2021 CR 00712
OPINION
Decided: August 22, 2022
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, 4th Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
John P. Laczko, Attorney John P. Laczko, LLC, City Centre One, Suite 975, 100 East
Federal Street, Youngstown, OH 44503 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Michael R. Frasca, Jr., appeals his sentence after pleading guilty
to five charges in two separately indicted cases. We affirm.
{¶2} In case number 2021 CR 485, Frasca was indicted on the following six
counts: Count One, domestic violence (F3) in violation of R.C. 2919.25(A)&(D)(1)(4);
Counts Two and Three, menacing (M4) in violation of R.C. 2903.22(A)&(B); and Counts
Four, Five, and Six, violating a protection order (F5) in violation of R.C.
2919.27(A)(1)&(B)(3)(a). In case number 2021 CR 712, Frasca was indicted on the
following eight counts: Counts One and Two, domestic violence (M1) in violation of R.C.
2919.25(C)&(D)(1)(4); Count Three, telecommunications harassment (M1) in violation of
R.C. 2917.21(B)(1)&(C)(2); Counts Four and Five, violating a protection order (F5) in
violation of R.C. 2919.27(A)(1)&(B)(3)(a); Counts Six and Seven, menacing by stalking
(F4) in violation of R.C. 2903.211(A)(1)&(B)(2)(e); and Count Eight, menacing by stalking
(F4) in violation of R.C. 2903.211(A)(1)&(B)(2)(g).
{¶3} Pursuant to a plea agreement, Frasca pleaded guilty to two counts of
domestic violence, two counts of violating a protection order, and one count of menacing
by stalking. The remaining counts were dismissed. The plea agreement also included a
jointly recommended sentence of 24 months. At the plea hearing, the trial court stated it
would not accept the jointly recommended sentence, ordered a presentence investigation
and report, and set the matter for sentencing. At the sentencing hearing, the trial court
heard victim impact statements from Frasca’s wife and 14-year-old daughter and outlined
Frasca’s extensive criminal history.
{¶4} In case number 2021 CR 485, the trial court sentenced Frasca to
consecutive terms of imprisonment of 36 months on Count One and 12 months on Count
Four. In case number 2021 CR 712, the trial court sentenced Frasca to consecutive terms
of imprisonment of 12 months on Count Four and 18 months on Count Six, as well as a
concurrent term of 180 days in jail on Count One. The prison terms imposed in case
number 2021 CR 712 were ordered to be served consecutively to the prison terms
imposed in case number 2021 CR 485, for an aggregate prison sentence of 78 months
(i.e., six years and six months).
{¶5} Frasca challenges his felony sentences in one assignment of error:
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Case Nos. 2021-T-0059 and 2022-T-0001
{¶6} “The trial court erred in sentencing appellant and imposing maximum
consecutive terms of incarceration pursuant to guilty pleas beyond the agreed sentence
of the parties without justification or making the statutorily required findings.”
{¶7} Frasca first contends the trial court erred when it imposed the individual
prison terms for each count because the court did not adequately consider the sentencing
factors as required by R.C. 2929.12. Specifically, he argues that the individual sentences
are excessive and not supported by the trial court’s factual findings.
{¶8} Sentencing courts have discretion to choose the most effective way to
achieve the purposes and principles of felony sentencing, as provided in R.C. 2929.11(A):
The overriding purposes of felony sentencing are to protect
the public from future crime by the offender and others, to
punish the offender, and to promote the effective rehabilitation
of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources.
In exercising that discretion, sentencing courts are required to consider the seriousness
and recidivism factors found in R.C. 2929.12, and may consider any other factors relevant
to achieving the purposes and principles of felony sentencing. R.C. 2929.12(A).
{¶9} These statutes do not mandate judicial fact-finding, and when a sentencing
court states that it has considered these factors, it fulfills its duty. State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42. Even a silent record raises the
presumption that the sentencing court considered all relevant factors. State v. Adams,
37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus. Moreover,
our standard of felony sentencing review, as provided in R.C. 2953.08(G), “does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” State
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Case Nos. 2021-T-0059 and 2022-T-0001
v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39. An appellate court
is not permitted “to independently weigh evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best reflects compliance
with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.
{¶10} Here, the trial court noted at sentencing that it considered the overriding
principles and purposes of felony sentencing and all relevant seriousness and recidivism
factors, and that the sentence shall be proportional to Frasca’s conduct and consistent
with similarly situated offenders. This court is not permitted to independently reweigh the
competing factors on appeal. Accordingly, this aspect of Frasca’s assigned error is not
well taken.
{¶11} Frasca next argues that the trial court erred when it ordered the prison terms
to be served consecutively, because the court’s R.C. 2929.14(C)(4) findings are legally
insufficient and not supported by the record.
{¶12} Appellate courts are permitted to review the imposition of consecutive
sentences under the standard provided in R.C. 2953.08(G)(2):
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13, division
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Case Nos. 2021-T-0059 and 2022-T-0001
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶13} A statutory presumption exists in favor of concurrent sentences. See R.C.
2929.41(A). “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, syllabus.
{¶14} Pursuant to R.C. 2929.14(C)(4), “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 that the consecutive service is necessary
to protect the public from future crime or to punish the offender and 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 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.
(c) The offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
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{¶15} Here, the trial court made the following findings when it imposed
consecutive sentences at the hearing:
The Court finds, pursuant to Ohio Revised Code Section
2929.14, that it is necessary to protect the public from almost
absolute certainty of future crime by the Defendant,
consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct, blatant disregard for
court orders and protection orders; that some of these
offenses were committed while awaiting trial and while he was
on probation and – bond and specific orders to stay away from
the victims; that due to the conduct of the Defendant a single
prison term would not adequately reflect the seriousness of
the offender’s conduct; and the Defendant’s extensive
criminal history demonstrates that consecutive sentences are
absolutely necessary to protect the public.
These findings were also sufficiently incorporated into the sentencing entry.
{¶16} We do not clearly and convincingly find that the record does not support the
trial court’s findings. Frasca has an extensive criminal history, which began when he was
a juvenile, and has spent many years in prison as a result. Accordingly, this aspect of
Franca’s assigned error is also not well taken.
{¶17} Franca’s sole assignment of error is without merit.
{¶18} The judgments of the Trumbull County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
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Case Nos. 2021-T-0059 and 2022-T-0001