State v. Ropp , 2014 Ohio 2462 ( 2014 )

[Cite as State v. Ropp, 2014-Ohio-2462.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-13-21
v.
MICHAEL PAUL ROPP, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 13-CR-0059
Judgment Affirmed
Date of Decision: June 9, 2014
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
Case No. 14-13-21
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Michael Ropp (“Ropp”) brings this appeal from
the judgment of the Court of Common Pleas of Union County. Ropp claims on
appeal that the trial court considered inappropriate evidence at the sentencing
hearing and erred in sentencing him to consecutive sentences. For the reasons set
forth below, the judgment is affirmed.
{¶2} On April 17, 2013, the Union County Grand Jury indicted Ropp on
seven counts: 1) Engaging in a Pattern of Corrupt Activity in violation of R.C.
2923.32(A)(1), (B)(1), a felony of the first degree; 2) Trafficking in Heroin in
violation of R.C. 2925.03(A)(1), (C)(6)(a), a felony of the fifth degree; 3)
Trafficking in Heroin in violation of R.C. 2925.03(A)(1), (C)(6)(c), a felony of the
fourth degree; 4) Trafficking in Heroin in violation of R.C. 2925.03(A)(1),
(C)(6)(c), a felony of the fourth degree; 5) Trafficking in Heroin in violation of
R.C. 2925.03(A)(1), (C)(6)(c), a felony of the third degree; 6) Trafficking in
Heroin in violation of R.C. 2925.03(A)(1), (C)(6)(c), a felony of the fourth degree;
and 7) Possessing Criminal Tools in violation of R.C. 2923.24(A), (C), a felony of
the fifth degree. Doc. 2. Ropp was arraigned on April 25, 2013 and entered pleas
of not guilty. Doc. 7. On August 27, 2013, Ropp changed his plea from not guilty
to guilty to all counts of the indictment. Doc. 36. There was no agreement as to
sentencing.
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{¶3} The sentencing hearing was held on October 21, 2013. Doc. 41. The
trial court determined that Count 2 and Count 7 were allied offenses which
merged, and the State chose to have Ropp sentenced on Count 2. Id. The trial
court then sentenced Ropp to prison terms of five years on Count 1, six months on
Count 2, twelve months on Count 3, fifteen months on Count 4, twenty-four
months on Count 5, and fifteen months on Count 6 with all sentences to be served
consecutive to the others. Id. As a result, the combined prison term imposed was
eleven years with jail time credit of 201 days as of the date of sentencing. Id. On
November 19, 2013, Ropp filed his notice of appeal. Doc. 48. On appeal, Ropp
raises the following assignments of error.
First Assignment of Error
The trial court erred at [Ropp’s] sentencing hearing when it
permitted [the State] to present evidence of unrelated situations
and inferred [Ropp] participated, which prejudiced [Ropp].
Second Assignment of Error
The trial court erred when it sentenced Ropp to consecutive
sentences.
{¶4} In the first assignment of error, Ropp challenges the presentation by
the State of alleged offenses for which Ropp was never charged or convicted at
sentencing as justification for a longer sentence. When sentencing a defendant for
a felony, the trial court must be guided by the purposes of felony sentencing set
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forth in R.C. 2929.11 and consider the mandatory factors set forth in R.C.
2929.12.
(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others and to
punish the offender. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim
of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the two overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate
with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar
offenders.
(C) A court that imposes a sentence upon an offender for a
felony shall not base the sentence upon the race, ethnic
background, gender, or religion of the offender.
R.C. 2929.11.
(A) Unless otherwise required by [R.C. 2929.13 or 2929.14], a
court that imposes a sentence under this chapter upon an
offender for a felony has discretion to determine the most
effective way to comply with the purposes and principles of
sentencing set forth in [R.C. 2929.11]. In exercising that
discretion, the court shall consider the factors set forth in
divisions (B) and (C) of this section relating to the seriousness of
the conduct and the factors provided in divisions (D) and (E) of
this section relating to the likelihood of the offender’s recidivism
and, in addition, may consider any other factors that are
relevant to achieving those purposes and principles of
sentencing.
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Case No. 14-13-21
(B) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors as indicating that the offender’s conduct is
more serious than conduct normally constituting the offense:
***
(2) The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.
***
(6) The offender’s relationship with the victim facilitated the
offense.
(7) The offender committed the offense for hire or as a part of
an organized criminal activity.
***
(C) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender’s conduct
is less serious than conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
***
(3) In committing the offense, the offender did not cause or
expect to cause physical harm to any person or property.
***
(D) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as
factors indicating that the offender is likely to commit future
crimes.
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***
(2) The offender previously was adjudicated a delinquent child
pursuant to [R.C. 2151] or the offender has a history of criminal
convictions.
(3) The offender has not been rehabilitated to a satisfactory
degree after previously being adjudicated a delinquent child * *
* or the offender has not responded favorably to sanctions
previously imposed for criminal convictions.
(4) 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.
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as
factors indicating that the offender is not likely to commit future
crimes:
***
(5) The offender shows genuine remorse for the offense.
R.C. 2929.12. Generally, the trial court is not limited to only considering the facts
related directly to the conviction. State v. Bowsher, 186 Ohio App.3d 162, 2010-
Ohio-951, 926 N.E.2d 714 (2d Dist.). Courts have historically been permitted to
consider hearsay evidence, evidence of an offender’s criminal history, the facts
concerning charges dismissed, and even offenses for which charges were not filed,
but were addressed in the presentence investigation (“PSI”). Id. This court has
previously held that evidence of other crimes, including crimes for which no
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charges were filed can be considered at sentencing. State v. Ford, 3d Dist. Union
No. 14-10-07, 2010-Ohio-4069, ¶19. The holding in Ford is based partially upon
the Ohio Supreme Court’s holding in State v. Cooey, 46 Ohio St.3d 20, 35, 544
N.E.2d 895 (1989). In Cooey, the PSI contained information regarding offenses
for which the defendant had never been charged. The Ohio Supreme Court held
that those alleged offenses were properly in the PSI, though may have been more
appropriate for the social history, and thus could be considered by the trial court at
sentencing.
{¶5} However, this court has also held that the ability of the trial court to
consider evidence of other offenses for which there was no conviction is not
completely unfettered. See State v. Blake, 3d Dist. Union No. 14-03-33, 2004-
Ohio-1952. “The trial court’s consideration cannot indicate a bias toward the
defendant indicating that the trial court believes that the defendant is guilty of the
charges which were dismissed.” Id. at ¶ 5. “[W]e have recognized that a trial
court is not vested with authority to consider allegations of conduct that have not
been adjudicated in a court of law.” State v. Hartley, 3d Dist. Union No. 14-11-
29, 2012-Ohio-4108, ¶33. “Allowing a sentence to be imposed on the basis of
such conduct ‘would permit a defendant to be punished for offenses without a trial
or an opportunity to defend oneself by cross-examining the witnesses.’” State v.
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Montgomery, 3d Dist. Crawford No. 3-08-10, 3-08-11, 2008-Ohio-6182, ¶13
(quoting State v. Park, 3d Dist. Crawford No. 3-06-14, 2007-Ohio-1084).
{¶6} This court notes that the alleged offenses in this case were not
mentioned in the PSI, but instead were raised by direct testimony. The challenged
testimony discussed how the heroin allegedly brought into the county and
allegedly supplied by Ropp had resulted in a drug overdose of one woman and the
drug overdose and related death of a second woman. Ropp was not charged with
either of these offenses. At the sentencing hearing, the trial court did not discuss
the alleged offenses for which no charges were brought. However, in the
sentencing entry, the trial court spent several pages discussing this testimony. The
trial court clearly considered this evidence in reaching its sentence.
{¶7} The statute permits the trial court to consider any relevant factors as to
sentencing. This would include the effect of the charged offenses on individual
members of society. Although a trial court must be cautious not to solely impose a
sentence based upon what might have happened, it can consider how the offenses
for which the defendant was convicted affect others. In this case, Ropp was
convicted and sentenced on one first degree felony, one third degree felony, three
fourth degree felonies, and one fifth degree felony. The sentencing range for a
first degree felony is three to ten years in prison. R.C. 2929.14(A)(1). The trial
court imposed a sentence of five years in prison. The sentencing range for
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felonies of the third degree is one to five years in prison. R.C. 2929.14(A)(3).
The trial court imposed a sentence of two years in prison. The three fourth degree
felonies had sentencing ranges of six to eighteen months in prison. R.C.
2929.14(A)(4). Here, the trial court imposed prison sentences of twelve months,
fifteen months, and fifteen months respectively for each of the offenses. For a
fifth degree felony, the range of prison terms can be six to twelve months. R.C.
2929.14(A)(5). The trial court imposed a minimum sentence of six months for the
fifth degree felony. All of the sentences imposed were within the range permitted
by law. None of the sentences imposed were maximum sentences and the
sentence for the first degree felony, the third degree felony, and the fifth degree
felony, were towards the bottom of the ranges. The sentences imposed were those
recommended by the State. Additionally, Ropp admitted to having an ongoing
drug problem and has an extensive criminal record. Given all of this information,
the record does not indicate that the sentences imposed were excessive or that the
trial court was biased by the uncharged offenses when it imposed the sentences.
Thus, the first assignment of error is overruled.
{¶8} In the second assignment of error, Ropp claims that the trial court
erred by imposing consecutive sentences.
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
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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:
***
(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.
R.C. 2929.14(E)(4). Here, the trial court found as follows.
The Court has considered the record, oral statements, the need
for deterrence, incapacitation, rehabilitation and restitution, the
principles and purposes of sentencing under R.C. 2929.11, and
has balanced the seriousness and recidivism factors under R.C.
2929.12
The Court finds that the shortest prison term would demean the
seriousness of the offense and would not protect the public.
The Court further finds that consecutive sentences are necessary
to protect the public from future crime and to punish the
Defendant and that consecutive sentences are not
disproportionate to the seriousness of the Defendant’s conduct
and to the danger the Defendant poses to the public.
The Court further finds that the Defendant’s history of criminal
conduct demonstrates that consecutive sentences are necessary
to protect the public from future crime by the Defendant.
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Sentencing Entry, 7-8. The trial court considered all of the factors and made the
required findings. These findings are supported by the record. Thus, the trial
court did not err in imposing consecutive sentences. The second assignment of
error is overruled.
{¶9} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Union
County is affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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