State v. Morris , 2013 Ohio 1736 ( 2013 )

[Cite as State v. Morris, 2013-Ohio-1736.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-12-17
v.
ROBERT LEE MORRIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20102166
Judgment Affirmed
Date of Decision: April 29, 2013
APPEARANCES:
Nicole M. Winget for Appellant
Bradford W. Bailey and Destiny R. Hudson for Appellee
Case No. 6-12-17
SHAW, J.
{¶1} Defendant-appellant Robert Lee Morris (“Morris”) appeals the
October 5, 2012, judgment of the Hardin County Common Pleas Court revoking
Morris’s community control and sentencing Morris to 6 years and 11 months in
prison. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On January 11, 2011, Morris pled guilty to one count of Burglary, in
violation of R.C. 2911.12(A)(2), a felony of the second degree, one count of
Felonious Assault, in violation of R.C. 2903.11(A)(2), a felony of the second
degree, and one count of Theft of Credit Cards in violation of R.C. 2913.02(A)(1),
(B)(2), a felony of the fifth degree.
{¶3} Subsequently, the State and Morris jointly recommended a sentence,
which the court adopted. (Doc. 45). As part of this sentence, Morris was placed
on community control for a period of 3 years with the special condition that he
successfully complete treatment at the W.O.R.T.H. center. (Id.) Morris was also
informed that in the event he violated his community control he would face a
definite prison term of 3 years for the Burglary conviction, a definite prison term
of 3 years for the Felonious Assault conviction, and a definite prison term of 11
months for the Theft of Credit Cards conviction, all to be served consecutively for
an aggregate prison term of 6 years and 11 months. (Id.) An entry reflecting this
sentence was filed March 17, 2011. (Id.)
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{¶4} On September 21, 2012, the State filed a Motion for Revocation of
Supervision. (Doc. 53). On October 5, 2012, a hearing was held on the motion.
At the hearing, Morris admitted to multiple violations of his community control.
Those violations included that Morris was in possession of drug paraphernalia,
that Morris failed to report to his supervising officer, and that Morris used cocaine
in violation of the express provisions of his community control. (Tr. at 4-5).
Based upon Morris’s admissions and the facts, the trial court found Morris had
violated the terms of his community control and that Morris was no longer
amenable to community control. The court then imposed the reserved 6 year and
11 month prison sentence. (Doc. 62). An entry reflecting this sentence was filed
October 5, 2012. (Id.)
{¶5} It is from this judgment that Morris appeals, asserting the following
assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION
WHEN IT FAILED TO CONSIDER ANY MITIGATING
FACTORS PRIOR TO ISSUING A MAXIMUM SENTENCE.
{¶6} In his assignment of error, Morris argues that the trial court abused its
discretion when the court “failed to consider any mitigating factors prior to issuing
a maximum sentence.” Specifically, Morris argues that only negative factors were
considered during Morris’s sentencing and that no mitigating factors were taken
into account by the sentencing court. Morris contends that the trial court “took the
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time to outline the factors it considered from [R.C.] 2929.12(B), but did not
outline a single factor from [R.C.] 2929.12(C).” (Appt. Br. at 4).
{¶7} A reviewing court must conduct a meaningful review of the trial
court's imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8 citing State v. Carter, 11th Dist. No.2003–P–0007, 2004-Ohio-
1181. In particular, R.C. 2953.08(G)(2) provides the following regarding an
appellate court’s review of a sentence on appeal.
(2) The court hearing an appeal * * * 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) 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.
{¶8} Furthermore, a sentence imposed for a felony shall be reasonably
calculated to achieve the two overriding purposes of felony sentencing, which are
to protect the public from future crimes by the offender and others and to punish
the offender, and shall be commensurate with and not demeaning to the
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seriousness of the offender’s conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders. See R.C. 2929.11(A),(B).
{¶9} At the outset we would note that despite the characterization of
Morris’s assignment of error, Morris was not sentenced to a “maximum sentence.”
Morris was facing up to 8 years in prison on each of the Burglary and Felonious
Assault charges, and a possible 12 month prison term on the Theft of Credit Cards
charge. However, ultimately Morris was ordered to serve 3 years in prison on
each of the former two charges and 11 months in prison on the latter charge, all to
be served consecutively for an aggregate prison term of 6 years and 11 months.
Therefore, despite his characterization, Morris did not receive a maximum
sentence.
{¶10} Next, we would note that Morris is complaining about a “jointly
recommended sentence.” The record reflects that the sentence of community
control and the reserved consecutive prison terms to be imposed upon Morris in
the event of a violation of his community control were part of a jointly
recommended sentence by the State and Morris. (Doc. 45).
{¶11} “Pursuant to R.C. 2953.08, a sentence is not subject to review when
the sentence is (1) authorized by law; (2) jointly recommended by the parties; and
(3) imposed by the sentencing judge.” State v. Kryling, 3d Dist. 5-10-25, 2011-
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Ohio-166, ¶ 7, citing State v. Giesey, 3d Dist. No. 5-06-31, 2006-Ohio-6851, ¶ 8,
citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, ¶ 8. In discussing
jointly recommended sentences, the Ohio Supreme Court has recognized that
“[t]he General Assembly intended a jointly agreed-upon sentence to be protected
from review precisely because the parties agreed that the sentence is appropriate.
Once a defendant stipulates that a particular sentence is justified, the sentencing
judge need not independently justify the sentence.” Porterfield, at ¶ 25.
Therefore, it is not necessary for us to address Morris’s argument as it pertains to
the lawfulness of his sentence, because the court's imposition of non-minimum,
consecutive sentences in this case was done as part of a joint sentencing
recommendation and is not subject to review. State v. Townsend, 5th Dist. No. 09-
CA-42, 2009-Ohio-5664, ¶ 31; State v. Wyche, 10th Dist. No. 06AP-1047, 2007-
Ohio-2784, at ¶ 6; State v. Dye, 4th Dist. No. 06CA24, 2007-Ohio-3934.
{¶12} However, even if Morris’s argument was subject to review, R.C.
2929.12(C)(4) only requires that the trial court consider any potential mitigating
factors. See R.C. 2929.12(C)(4). The statute does not require the trial court to
make findings on the record regarding mitigating factors. Nevertheless, when
originally sentencing Morris, the trial court stated that it had “considered the
record, oral statements, any victim impact statements, joint sentencing
recommendation of the parties, the pre-sentence investigation report prepared, as
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well as the principles and purposes of sentencing under Ohio Revised Code
Section 2929.11, and has balanced the seriousness and recidivism factors in Ohio
Revised Code Section 2929.12.”1 (Doc. 45). Thus there is nothing to suggest that
the court did not consider mitigating factors at the time of the original sentencing.
{¶13} For the foregoing reasons, Morris’s assignment of error is overruled
and the judgment of the Hardin County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON, P.J., concurs.
ROGERS, J., concurs in Judgment Only.
/jlr
1
In reviewing the record, we would note that Morris’s pre-sentencing investigation report stated the
opinion that Morris was “not amenable to an available Community Control sanction.” Nevertheless, the
court followed the parties’ joint sentencing recommendation and placed Morris on community control.
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