State v. Howard , 2012 Ohio 2836 ( 2012 )

[Cite as State v. Howard, 2012-Ohio-2836.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-11-32
v.
TYRONE E. HOWARD, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2011-CR-121
Judgment Affirmed
Date of Decision: June 25, 2012
APPEARANCES:
Gerald F. Siesel for Appellant
Edwin A. Pierce for Appellee
Case No. 2-11-32
WILLAMOWSKI, J.
{¶1} Defendant-appellant Tyrone E. Howard (“Howard”) brings this
appeal from the judgment of the Court of Common Pleas of Auglaize County
sentencing him to a total term of 72 months in prison. For the reasons set forth
below, the judgment is affirmed.
{¶2} On August 8, 2011, Howard was arrested for the sale of cocaine.
The Auglaize County Grand Jury returned a four count indictment against Howard
on August 11, 2011. The indictment charged Howard with 1) one count of
trafficking in cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(E), a felony of the
second degree; 2) one count of trafficking in crack cocaine in violation of R.C.
2925.03(A)(1)(C)(4)(D), a felony of the third degree; 3) one count of fleeing and
eluding in violation of R.C. 2921.331(B)(C)(4), a felony of the fourth degree; and
4) one count of fleeing and eluding in violation of R.C. 2921.331(B)(C)(5)(a)(ii), a
felony of the third degree.1 Pursuant to a plea agreement, the State agreed to
amend count one of the indictment to trafficking in cocaine in an amount between
five and ten grams in violation of R.C. 2925.03(A)(1)(C)(4)(d), a felony of the
third degree, and to dismiss count four of the indictment. In exchange, Howard
agreed to enter guilty pleas to the amended count one, count two, and count three.
The trial court held the change of plea hearing on November 4, 2011, and accepted
1
The third and fourth counts were charged as alternative offenses.
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Howard’s pleas of guilty. The trial court then proceeded to sentence Howard to 18
months in prison on count one, 36 months in prison on count two, and 18 months
in prison on count three with all sentences to be served consecutively for a total
prison term of 72 months. Howard appeals from this judgment and raises the
following assignment of error.
The trial court’s sentencing of [Howard] to maximum sentences
on counts two and three of the indictment, and consecutive
sentences as to all three counts to which sentence was imposed
for a total sentence of seventy-two (72) months was contrary to
law and further constituted an abuse of discretion in failing to
properly consider and apply the felony sentencing guidelines set
forth in [R.C. 2929.11 and 2929.12].
{¶3} The sole assignment of error challenges whether the trial court
properly considered and applied the felony sentencing guidelines. Trial courts
have discretion to impose a prison sentence within the statutory range for the
offense from which the conviction stems. State v. Foster, 109 Ohio St.3d 1, 2006–
Ohio–856, 845 N.E.2d 470. An assignment of error challenging imposition of a
maximum and consecutive sentences pursuant to R.C. 2929.14 will only be
sustained if appellant shows that the judgment was clearly and convincingly
contrary to law. R.C. 2953.08(G). Before imposing the sentence, the trial court
must consider the following factors.
(A) In determining the minimum term of imprisonment to be
imposed for a felony for which an indefinite term of
imprisonment is imposed, the court shall consider the risk that
the offender will commit another crime and the need for
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protecting the public from the risk; the nature and
circumstances of the offense; the victim impact statement
prepared pursuant to section 2947.051 of the Revised Code, if a
victim impact statement is required by that section; any
statement by the victim pursuant to section 2930.14 of the
Revised Code; and the history, character, and condition of the
offender and his need for correctional or rehabilitative
treatment.
(B) The following do not control the court's discretion, but shall
be considered in favor of imposing a longer term of
imprisonment for a felony for which an indefinite term of
imprisonment is imposed:
(1) The offender is a repeat or dangerous offender;
(2) Regardless of whether the offender knew the age of the
victim, the victim of the offense was sixty-five years of age or
older, permanently and totally disabled, or less than eighteen
years of age at the time of the commission of the offense;
(3) The victim of the offense has suffered severe social,
psychological, physical, or economic injury as a result of the
offense.
(C) The following do not control the court's discretion, but shall
be considered in favor of imposing a shorter minimum term of
imprisonment for a felony for which an indefinite term of
imprisonment is imposed:
(1) The offense neither caused nor threatened serious physical
harm to persons or property, or the offender did not
contemplate that it would do so;
(2) The offense was the result of circumstances unlikely to
recur;
(3) The victim of the offense induced or facilitated it;
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(4) There are substantial grounds tending to excuse or justify
the offense, though failing to establish a defense;
(5) The offender acted under strong provocation;
(6) The offender has no history of prior delinquency or
criminal activity, or has led a law-abiding life for a substantial
time before commission of the present offense;
(7) The offender is likely to respond quickly to correctional or
rehabilitative treatment.
(D) The criteria listed in divisions (B) and (C) of this section do
not limit the matters that may be considered in determining the
minimum term of imprisonment to be imposed for a felony for
which an indefinite term of imprisonment is imposed.
R.C. § 2929.12.
{¶4} In support of his argument, Howard alleges first that the trial court
did not consider the sentencing guidelines set forth in R.C. 2929.11 and 2929.12.
However, a review of the record specifically indicates that the trial court did
consider the factors. Tr. 33. The sole remaining question is whether the trial court
properly applied the factors set forth in R.C. 2929.12. Howard admits that his
conduct was a drug offense that involved organized criminal activity. In addition,
Howard has an extensive criminal record, as discussed on the record.
The Court: What are your prior felony convictions, Sir?
Howard: Aggravated Robbery, Your Honor. It happened in
’99, 1999.
The Court: You were indicted in 2000?
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Howard: I plead guilty to it, I think, in 2000.
***
Howard: I got out on judicial release and then, --
The Court: When were you released on judicial release?
Howard: I think it was 2000, September of 2000 or I think 2001.
And I was out for awhile (sic) and I violated my probation.
The Court: Why? What did you do?
Howard: I think I started using drugs and stopped reporting.
***
The Court: And then what was, -- what was the felony theft
then?
Howard: I didn’t finish payment on some merchandise I got
from Rent-A-Center.
***
The Court: Well, now how did you meet this guy from wherever
he was from?
Howard: The informant?
The Court: Yeah.
Howard: I met him through my brother’s friend and I would
like buy prescription drugs off of him, like Xanax and
oxycodones. * * *
Tr. 20-24. The trial court had evidence that this was not Howard’s first or even
second offense that resulted in a prison term. Based upon this evidence, the trial
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court did not abuse its discretion in applying the factors set forth in R.C. 2929.12.
The trial court also made the necessary finding that consecutive sentences were
necessary to protect the public, and were not disproportionate. R.C.
2929.14(C)(4)(c).2 Thus, the assignment of error is overruled.
{¶5} Having found no error prejudicial to the defendant, the judgment of
the Court of Common Pleas of Auglaize County is affirmed.
Judgment Affirmed
SHAW, P.J. and ROGERS, J., concur.
/jlr
2
The court notes that the findings were made on the record at the hearing, but not placed on the journal
entry. The better practice would be to place the mandatory findings in both places. However, this issue
was not raised and need not be addressed by this court at this time.
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