State v. Lee , 2013 Ohio 2233 ( 2013 )

[Cite as State v. Lee, 2013-Ohio-2233.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-16
Plaintiff-Appellee :
: Trial Court Case Nos. 2011-CR-173
v. : Trial Court Case Nos. 2011-CR-224
:
JEREMY D. LEE :
: (Criminal Appeal from
Defendant-Appellant : (Common Pleas Court)
:
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OPINION
Rendered on the 31st day of May, 2013.
...........
KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty Reg. #0061426,
Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
Attorneys for Plaintiff-Appellee
JOYCE M. DEITERING, Atty. Reg. #0005776, Oldham & Deitering, LLC, 8801 North Main
Street, Suite 200, Dayton, Ohio 45415-1380
Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Jeremy D. Lee appeals from his conviction and sentence for
Attempted Aggravated Riot, Breaking and Entering, Burglary, Grand Theft, Grand Theft of a
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Motor Vehicle, Criminal Damaging, and Safecracking, following a negotiated plea deal. Lee
contends that the trial court abused its discretion by imposing “unnecessarily harsh” consecutive
sentences for his Burglary offenses.
{¶ 2} We conclude that the trial court did not abuse its discretion in imposing
consecutive sentences. Accordingly, the judgment of the trial court is Affirmed.
I. The Course of Proceedings
{¶ 3} In July 2011, Lee was indicted in Case No. 2011-CR-173 on one count of
Aggravated Riot, a felony of the fourth degree in violation of R.C. 2917.02(A)(2); two counts of
Disorderly Conduct, minor misdemeanors in violation of R.C. 2917.11(A); one count of Assault,
a misdemeanor of the first degree in violation of R.C. 2903.13(A); and one count of Menacing, a
misdemeanor of the fourth degree in violation of R.C. 2903.22(A). Lee was arraigned and
released subject to the terms of a personal recognizance bond.
{¶ 4} In September 2011, Lee was indicted in Case No. 2011-CR-224 for offenses that
occurred over a six-day period in August 2011, after his prior indictment, arraignment, and
release on personal recognizance. The counts in the September indictment included: three
counts of Breaking and Entering, all felonies of the fifth degree in violation of R.C. 2911.13(A);
four counts of Theft, all misdemeanors of the first degree in violation of R.C. 2913.02(A)(1);
three counts of Burglary, two felonies of the third degree in violation of R.C. 2911.12(A)(3) and
one felony of the second degree in violation of R.C. 2911.12(A)(2); one count of Grand Theft, a
felony of the fourth degree in violation of R.C. 2913.02(A)(1); one count of Grand Theft of a
Motor Vehicle, a felony of the fourth degree in violation of R.C. 2913.02(A)(1); five counts of
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Criminal Damaging, all misdemeanors of the second degree in violation of R.C. 2909.06(A)(1);
one count of Safecracking, a felony of the fourth degree in violation of R.C. 2911.31(A); and one
count of Receiving Stolen Property, a misdemeanor of the first degree in violation of R.C.
2913.51(A).
{¶ 5} Pursuant to a negotiated plea agreement, Lee pled guilty to an amended count of
Attempted Aggravated Riot in the July indictment. The remaining counts in that indictment were
dismissed as part of the plea agreement. With respect to the September indictment, Lee pled
guilty to three counts of Breaking and Entering; two counts of Burglary (the two third-degree
felony Burglaries); one count of Grand Theft; one count of Grand Theft of a Motor Vehicle; five
counts of Criminal Damaging; and one count of Safecracking. The remaining counts in that
indictment were dismissed as part of the plea agreement. The trial court ordered a pre-sentence
investigation.
{¶ 6} The trial court conducted a sentencing hearing in both cases. Lee was sentenced
to eight months in prison on the Attempted Aggravated Riot count; eleven months on each of the
Breaking and Entering counts; ninety days on each of the Criminal Damaging counts; seventeen
months on each of the Grand Theft, Safecracking, and Grand Theft of a Motor Vehicle counts;
and three years on each of the two Burglary counts. The two Burglary sentences were ordered to
run consecutively to each other and concurrently with the remaining sentences, for a total
sentence of six years of incarceration.
{¶ 7} From this judgment, Lee appeals.
II. The Trial Court Made the Findings Required for the Imposition of Consecutive
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Sentences, and the Sentence Is Not Clearly and Convincingly Contrary to Law
{¶ 8} Lee’s sole assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
IMPOSING CONSECUTIVE SENTENCES ON DEFENDANT-APPELLANT
JEREMY D. LEE.
{¶ 9} Lee contends that the trial court abused its discretion by imposing consecutive
sentences on the Burglary counts, rather than imposing concurrent sentences. According to Lee,
a six-year prison term is “unnecessarily harsh” given his young age of 18, his prior offense being
committed while he was a minor, and his cooperation and assistance with law enforcement.
{¶ 10} When reviewing a felony sentence, an appellate court must first determine
whether the sentencing court complied with all applicable rules and statutes in imposing the
sentence, including R.C. 2929.11 and 2929.12, in order to decide whether the sentence is contrary
to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. If the
sentence is not clearly and convincingly contrary to law, the trial court's decision in imposing the
term of imprisonment must be reviewed under an abuse-of-discretion standard. Id. The term
“abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or
unconscionable. Hufman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
{¶ 11} A court that sentences an offender for a felony shall be guided by the overriding
purposes of felony sentencing, which 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 imposing an unnecessary burden on state or local government
resources.” R.C. 2929.11(A). A court imposing a sentence for a felony “has discretion to
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determine the most effective way to comply with the purposes and principles of sentencing set
forth in section 2929.11 of the Revised Code.” R.C. 2929.12(A).
{¶ 12} The General Assembly, through the enactment of 2011 Am. Sub. H.B. 86,
amended Ohio's sentencing statutes. H.B. 86 took effect on September 30, 2011, and Lee was
sentenced on December 16, 2011. Therefore, the trial court was required to sentence Lee under
the amended statutes.
{¶ 13} R.C. 2929.14(C)(4) requires a trial court to make certain findings before
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 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
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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.
{¶ 14} At the sentencing hearing, the trial court stated, at Tr. 20:
Court believes that consecutive sentence imposed is necessary to protect
the public from future crime and to punish the defendant. Consecutive sentences
are not disproportionate to the seriousness of the conduct of the defendant and to
the danger the defendant imposes [sic] to the public. Court finds that defendant
committed one or more of the multiple offenses while under a community control
sanction. At least two of the multiple offenses were committed courses of
conduct and the harm caused by two or more of multiple offenses was so great or
unusual that no single prison term for any of the offenses adequately reflect the
seriousness of defendant’s conduct.
The Court also finds that defendant’s history of criminal conduct
demonstrates consecutive sentences are necessary to protect the public from future
crime by the defendant.
{¶ 15} Similarly, in its judgment entry (Dkt. 27), the trial court made the following
findings, as required by R.C. 2929.14(C)(4):
Consecutive service is necessary to protect the public from future crime
and to punish the Defendant and that consecutive sentences are not
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disproportionate to the seriousness of the Defendant's conduct and to the danger
the Defendant poses to the public and the Defendant committed one or more of the
multiple offenses while awaiting trial and under a community control sanction and
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
was so great or unusual that no single prison term for any of the offenses
adequately reflects the seriousness of the Defendant’s conduct and Defendant's
history of criminal conduct demonstrates that consecutive sentences are necessary
to protect the public from future crime by the Defendant.
{¶ 16} The trial court complied with all applicable rules and statutes in imposing Lee’s
sentence, including R.C. 2929.11 and R.C. 2929.12. Thus, the sentence is not clearly and
convincingly contrary to law.
{¶ 17} We also conclude that the sentence is not an abuse of discretion. Lee displayed
a flagrant disregard for the law by committing the offenses in Case. No. 2011-CR-224 while out
on bond on his own recognizance in Case No. 2011-CR-173. Although the two Burglary
offenses were the worst of the offenses to which Lee pled guilty, he pled guilty to seven other
felonies, and to five misdemeanors. One other felony, seven other misdemeanors, and two
minor misdemeanors were dismissed as part of the plea bargain. The five other felony sentences
and the five misdemeanor sentences, being imposed concurrently, are effectively subsumed by
the two Burglary sentences. The two Burglary offenses were committed against different
victims.
{¶ 18} Lee’s sole assignment of error is overruled.
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III. Conclusion
{¶ 19} Lee’s sole assignment of error having been overruled, the judgment of the trial
court is Affirmed.
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FROELICH and WELBAUM, JJ., concur.
Copies mailed to:
Kevin S. Talebi
Jane A. Napier
Joyce M. Deitering
Hon. Nick A. Selvaggio