State v. Robinson , 2013 Ohio 2893 ( 2013 )

[Cite as State v. Robinson, 2013-Ohio-2893.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. CT2012-0005
CASEY ROBINSON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2012-0200
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 1, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD WELCH VALERIE WIGGINS
27 North Fifth Street P.O. Box 116
Zanesville, OH 43701 Roseville, OH 43777-0116
[Cite as State v. Robinson, 2013-Ohio-2893.]
Gwin, P.J.
{¶1} Defendant-appellant Casey J. Robinson [“Robinson”] appeals his
sentences on robbery a felony of the third degree in violation of R.C. 2911.02, with a
firearm specification pursuant to R.C. 2941.145, entered after a negotiated plea in the
Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶2} Robinson was indicted on the following: Count 1) Aggravated Robbery, a
felony of the first degree with a firearm specification; Count 2) Theft (less than $1,000),
a first-degree misdemeanor; Counts 3 and 4) Felonious Assault, both felonies of the
second degree.
{¶3} On December 3, 2012, pursuant to a written plea agreement, Robinson
withdrew his former pleas of not guilty and entered a plea of "guilty" to an amended
Count 1, to-wit: Robbery, a felony of the third degree with a firearm specification. In
exchange, the state agreed not to make a recommendation and to leave sentencing to
the discretion of the Court. The State further agreed to Nolle Counts 2, 3, and 4 at the
time of sentencing.
{¶4} On January 14, 2013, Robinson returned to court for sentencing. The
Court then ordered Robinson serve a mandatory prison term of three years on the
firearm specification and a prison term of 30 months on the robbery conviction. The
sentences were ordered to be served consecutively. The Court further informed
Robinson that he was subject to a mandatory period of post release control for 3 years
upon his release from prison.
Muskingum County, Case No. CT2012-0005 3
Assignment of Error
{¶5} Robinson raises one assignment of error,
{¶6} “I. THE TRIAL COURT VIOLATED THE APPELLANT'S
CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT SENTENCED
THE APPELLANT, A FIRST-TIME FELONY OFFENDER, TO A NEAR- MAXIMUM
PENALTY.”
Analysis
{¶7} Robinson contends that the trial court abused its discretion by sentencing
him to serve 30 months in prison for his robbery conviction.
{¶8} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470 as it relates to the remaining sentencing statutes and
appellate review of felony sentencing. See, State v. Snyder, 5th Dist. No. 2008-CA-25,
2008-Ohio-6709, 2008 WL 5265826.
{¶9} In Kalish, the Court discussed the affect of the Foster decision on felony
sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the
judicial fact-finding portions of R.C. 2929.14, holding that “trial courts have full discretion
to impose a prison sentence within the statutory range and are no longer required to
make findings or give their reasons for imposing maximum, consecutive, or more than
the minimum sentences.” Kalish,¶¶1 and 11, 896 N.E.2d 124, citing Foster at ¶100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175.
Muskingum County, Case No. CT2012-0005 4
{¶10} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at
¶13, see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State
v. Firouzmandi, supra at ¶29.
{¶11} “Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised
judicial fact-finding portions of the sentencing scheme, an appellate court remains
precluded from using an abuse-of-discretion standard of review when initially reviewing
a defendant's sentence. Instead, the appellate court must ensure that the trial court has
adhered to all applicable rules and statutes in imposing the sentence. As a purely legal
question, this is subject to review only to determine whether it is clearly and
convincingly contrary to law, the standard found in R.C. 2953.08(G).” Kalish at ¶14.
{¶12} Therefore, Kalish holds that, in reviewing felony sentences and applying
Foster to the remaining sentencing statutes, the appellate courts must use a two-step
approach. “First, they must examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the
trial court's decision in imposing the term of imprisonment shall be reviewed under an
abuse of discretion standard.” Kalish at ¶4, State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470.
{¶13} The Supreme Court held, in Kalish, that the trial court's sentencing
decision was not contrary to law. “The trial court expressly stated that it considered the
Muskingum County, Case No. CT2012-0005 5
purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12.
Moreover, it properly applied post-release control, and the sentence was within the
permissible range. Accordingly, the sentence is not clearly and convincingly contrary to
law.” Kalish at ¶18. The Court further held that the trial court “gave careful and
substantial deliberation to the relevant statutory considerations” and that there was
“nothing in the record to suggest that the court's decision was unreasonable, arbitrary,
or unconscionable.” Kalish at ¶20.
{¶14} In the case at bar, Robinson pled guilty and was convicted of a felony of
the third degree. Sentences that a court can impose are nine, twelve, eighteen, twenty-
four, thirty, or thirty-six months. R.C. 2929.14(A)(3)(b). Robinson was sentenced to thirty
months.
{¶15} Upon review, we find that the trial court's sentencing on the charge
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Furthermore, the record reflects that the trial court
considered the purposes and principles of sentencing and the seriousness and
recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised
Code and advised Robinson regarding post release control. Therefore, the sentence is
not clearly and convincingly contrary to law.
{¶16} Having determined that the sentence is not contrary to law we must now
review the sentence pursuant to an abuse of discretion standard. Kalish at ¶4; State v.
Firouzmandi, supra at ¶40.
{¶17} Post-Foster, “there is no mandate for judicial fact-finding in the general
guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶42.
Muskingum County, Case No. CT2012-0005 6
State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist.
No. 05CA815, 2006-Ohio-2753, ¶¶7-8. Therefore, post-Foster, trial courts are still
required to consider the general guidance factors in their sentencing decisions.
{¶18} There is no requirement in R.C. 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and
recidivism or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist.
1995); State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C.
2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial court
to set forth its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d
94(1992); State v. Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court
was not required to address each R.C. 2929.12 factor individually and make a finding as
to whether it was applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-
Ohio-1342, ¶19 (“... R.C. 2929.12 does not require specific language or specific findings
on the record in order to show that the trial court considered the applicable seriousness
and recidivism factors”). (Citations omitted).
{¶19} Where the record lacks sufficient data to justify the sentence, the court
may well abuse its discretion by imposing that sentence without a suitable explanation.
Where the record adequately justifies the sentence imposed, the court need not recite
its reasons. In other words, an appellate court may review the record to determine
whether the trial court failed to consider the appropriate sentencing factors. State v.
Firouzmandi, 5th Dist No. 2006-CA41, 2006-Ohio-5823 at ¶ 52.
{¶20} Accordingly, appellate courts can find an “abuse of discretion” where the
record establishes that a trial judge refused or failed to consider statutory sentencing
Muskingum County, Case No. CT2012-0005 7
factors. Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342(1st Dist.1978). An
“abuse of discretion” has also been found where a sentence is greatly excessive under
traditional concepts of justice or is manifestly disproportionate to the crime or the
defendant. Woosley v. United States, 478 F.2d 139, 147(8th Cir. 1973). The imposition
by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject
to review. Woosley, supra at 143-145. Where the severity of the sentence shocks the
judicial conscience or greatly exceeds penalties usually exacted for similar offenses or
defendants, and the record fails to justify and the trial court fails to explain the
imposition of the sentence, the appellate court's can reverse the sentence. Woosley,
supra at 147. This by no means is an exhaustive or exclusive list of the circumstances
under which an appellate court may find that the trial court abused its discretion in the
imposition of sentence in a particular case. State v. Firouzmandi, supra.
{¶21} In the case at bar, the court had the benefit of a pre-sentence investigation
report. Robinson was twenty-years old at the time of sentencing. He has never held a
full-time or part-time job. (Sent. T. at 6). He has a prior assault conviction in March
2011. (Id.). Further, the court noted,
[THE COURT]: Aggravated menacing July of 2011, allegations there
you went to a lady’s house and left three bullets in the bedroom and told
her next time they were going in her head, sound accurate?
[ROBINSON]: Yes, sir.
[THE COURT]: Drug abuse and resisting arrest, 2012?
[ROBINSON]: Yes sir.
Muskingum County, Case No. CT2012-0005 8
[THE COURT]: 35 total adjudication in Muskingum County as a
juvenile?
[ROBINSON]: Yes sir.
[THE COURT]: Looks like you posted bond in this case, and then
revoked because you tested positive for THC?
[ROBINSON]: Yes, sir.
***
[THE COURT]: Mr. Robinson, the three years [on the firearm
specification] are mandatory, so you have to serve those. The 30-months
is not mandatory time. At some point during that 30-month period, it’s
potential that you could file for judicial release...and go through a program,
some other possible in-house program.
Sent. T. at 6-7; 10).
{¶22} In the sentencing entry filed January 16, 2013, the trial court noted
specifically that it had considered the principles and purposes of sentencing under R.C.
2929.11 and balanced the seriousness and recidivism factors under R.R. 2929.12.
{¶23} There is no evidence in the record that the judge acted unreasonably by,
for example, selecting the sentence arbitrarily, basing the sentence on impermissible
factors, failing to consider pertinent factors, or giving an unreasonable amount of weight
to any pertinent factor. We find nothing in the record of Robinson's case to suggest that
his sentence was based on an arbitrary distinction that would violate the Due Process
Clause of the Fifth Amendment.
Muskingum County, Case No. CT2012-0005 9
{¶24} Accordingly, we hold the thirty-month sentence in this matter was not
based on the consideration of improper factors and was not unreasonable, arbitrary or
unconscionable. We further hold said sentence is not contrary to law.
{¶25} Robinson’s sole assignment of error is overruled.
{¶26} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 0617
[Cite as State v. Robinson, 2013-Ohio-2893.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CASEY ROBINSON :
:
:
Defendant-Appellant : CASE NO. CT2012-0005
For the reasons stated in our accompanying Memorandum-Opinion, the decision
of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. CRAIG R. BALDWIN