State v. Carlton , 2014 Ohio 3835 ( 2014 )

[Cite as State v. Carlton, 2014-Ohio-3835.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 26086
Plaintiff-Appellee :
: Trial Court Case Nos. 09-CR-390
v. : Trial Court Case Nos. 09-CR-391
: Trial Court Case Nos. 10-CR-3622
LESTER CARLTON, JR. :
: (Criminal Appeal from
Defendant-Appellant : (Common Pleas Court)
:
...........
OPINION
Rendered on the 5th day of September, 2014.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
VICTOR A. HODGE, Atty. Reg. #0007298, Law Office of the Public Defender, 117 South Main
Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
.............
FAIN, J.,
[Cite as State v. Carlton, 2014-Ohio-3835.]
{¶ 1} Defendant-appellant Lester Carlton, Jr., appeals from his concurrent, one-year
sentences for three counts of felony non-support, imposed after his community control sanctions
for those offenses were revoked because of his violation of reporting requirements. Carlton
contends that his sentence must be reversed, because the record fails to reflect that the trial court
considered the purposes and principles of sentencing or the seriousness and recidivism factors set
forth in R.C. 2929.11 and R.C. 2929.12.
{¶ 2} We conclude that a trial court is presumed to have considered the purposes and
principles of sentencing, and the statutory seriousness and recidivism factors, unless the record
suggests to the contrary. We find nothing in this record to suggest that the trial court failed to
consider those purposes, principles, and factors. Accordingly, the judgment of the trial court is
Affirmed.
I. Carlton’s Non-Support Convictions
{¶ 3} In May, 2009, in Montgomery County Common Pleas Court Case No.
09-CR-390, Carlton pled guilty to one count of the failure to pay child support, in violation of
R.C. 2919.21(B), a felony of the fifth degree, and to one count of the failure to pay child support,
in violation of R.C. 2919.21(B), a felony of the fourth degree. Two other counts were
dismissed. A judgment of conviction was entered May 8, 2009, on the fifth-degree felony count,
imposing community control sanctions. A judgment of conviction was not entered on the
fourth-degree felony count until February 13, 2014, after the revocation proceeding that appears
to have triggered this appeal. The trial court imposed a single, twelve-month sentence for both
offenses, to be served concurrently with the sentences imposed in the other two cases. This
entry was signed by a different judge than the judge who had, two days earlier, signed the entry
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revoking Carlton’s community control sanctions and imposing a twelve-month sentence for the
fifth-degree felony in this case, Case No. 09-CR-390. Carlton is not raising on appeal any issues
with respect to the fact that two different judges have signed judgment entries imposing sentence
in this case. In any event, the total sentence imposed in Case No. 09-CR-390, in each of the two
sentencing entries, is the same: twelve months to be served concurrently with the sentences
imposed in the other two cases.
{¶ 4} On the same day in May, 2009, in Case No. 09-CR-391, Carlton pled guilty to
one of two fifth-degree felony counts of failure to pay child support. The other count was
dismissed. Community control sanctions were imposed in this case.
{¶ 5} In January, 2011, in Case No. 2010 CR 03622, Carlton pled guilty to two
fifth-degree counts, and one fourth-degree count, of failure to pay child support. He failed to
appear for sentencing. He also failed to report to the Montgomery County Adult Probation
Department, as required by the terms of his community control sanctions imposed in the other
two cases. More than two years later, he was arrested. In July, 2013, Carlton was sentenced to
community control sanctions in this case.
II. The Revocation Proceeding
{¶ 6} In December, 2013, Carlton was served with notice of a revocation hearing, in
which it was alleged that he had: (1) “failed to make full payments in [his] court ordered child
support cases”; (2) “failed to attend scheduled office visits on September the 16th and 23rd,” and
“failed to attend an office visit for the entire month of November and failed to report until your
Non-Support Hearing on December 16"; and (3) “failed to make payments toward your court
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costs, * * * failed to report to the Adult Probation Department as required, * * * failed to
complete the Male Issues Seminar[,] and * * * failed to comply with your Court Ordered Child
Support.”
{¶ 7} Following a hearing, the trial court revoked Carlton’s community control
sanctions in all three cases, and imposed concurrent, twelve-month prison sentences for all of the
non-support convictions except the one fourth-degree count in Case No. 09-CR-390. The trial
court expressly based its decision to revoke community control solely upon Carlton’s failure to
have reported weekly as required by the terms of the community control sanctions. Two days
later, as noted in Part I, above, a different judge imposed a twelve-month prison sentence for both
of the non-support counts in Case No. 09-CR-390, to be served concurrently with all of the other
sentences in both of the other cases.
{¶ 8} From the sentence, Carlton appeals. His sole assignment of error is as follows:
THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPOSING
A SENTENCE OF INCARCERATION FOR A COMMUNITY CONTROL
VIOLATION WITHOUT CONSIDERING THE PURPOSES AND PRINCIPLES
OF SENTENCING (R.C. 2929.11) AND SERIOUSNESS AND RECIDIVISM
FACTORS (R.C. 2929.12).
III. There Is Nothing in this Record to Overcome the Presumption
that the Trial Court Considered the Purposes and Principles
of Sentencing and Seriousness and Recidivism Factors
{¶ 9} As a preliminary matter, we note that the sentence the trial court imposed was not
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“for a community control violation,” as recited in Carlton’s assignment of error. The sentences
were imposed for Carlton’s felony non-support convictions.
{¶ 10} R.C. 2929.11 provides as follows:
(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 using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state or
local government resources. 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.
{¶ 11} R.C. 2929.12(B) sets forth certain factors that, along with “any other relevant
factors,” a trial court “shall consider * * * as indicating that the offender’s conduct is more
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serious than conduct normally constituting the offense.” Division (C) of that same section sets
forth certain factors that, along with “any other relevant factors,” a trial court “shall consider * *
* as indicating that the offender’s conduct is less serious than conduct normally constituting the
offense.” Division (D) sets forth certain factors that, along with “any other relevant factors,” a
trial court “shall consider * * * as factors indicating that the offender is likely to commit future
crimes.” Finally, Division (E) sets forth certain factors that, along with “any other relevant
factors,” a trial court “shall consider * * * as factors indicating that the offender is not likely to
commit future crimes.”
{¶ 12} Neither in the trial court’s remarks at the sentencing hearing following the
revocation hearing, in the February 11, 2014 sentencing entry, nor in the February 13, 2014
sentencing entry, is there any express indication that the trial court considered the purposes and
principles of sentencing, or the seriousness and recidivism factors.
{¶ 13} Carlton argues that: “Where the record does not affirmatively indicate that the
[trial court] applied R.C. 2929.11 and R.C. 2929.12, the sentence is contrary to law. [State v.]
Kalish, [120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124]; [State v.] Rodeffer,
[2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.)]; [State v.] Haley, [12th Dist. Butler No. CA
2012-10-212, 2013-Ohio-4531].” Carlton’s brief at p. 8. The lead opinion in Kalish contains
the following footnote 4 at ¶ 18:
Of course, where the trial court does not put on the record its consideration
of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper
consideration to those statutes. Cf. State v. Adams (1988), 37 Ohio St.3d 295, 525
N.E.2d 1361, paragraph three of the syllabus.
[Cite as State v. Carlton, 2014-Ohio-3835.]
{¶ 14} Only three of the justices concurred in the lead opinion. Judge Willamowski, of
the Third Appellate District, sitting for Justice Cupp, concurred in the judgment, but wrote a
separate opinion addressed to the proper standard of appellate review of a felony sentence. In
that opinion, at ¶ 37, Judge Willamowski did opine that the holding in Adams that a silent record
raises the presumption that the trial court considered the factors set forth in R.C. 2929.12 had
been implicitly overruled in State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).
{¶ 15} Significantly, however, Justice Lanziger’s dissenting opinion, in which two other
justices concurred, did not address the issue of whether a silent record raises a presumption that
the trial court has considered the statutory factors. Thus, in Kalish there are three justices on
record opining that a silent record raises the presumption, one appellate judge sitting for a justice
opining that a silent record does not raise the presumption, and three justices taking no position
on that issue. We conclude that Kalish does not offer any support for Carlton’s argument that a
trial court’s consideration of statutory sentencing factors may not be presumed from a silent
record.
{¶ 16} In Rodeffer, the next case Carlton cites, we noted at ¶ 32 that: “According to
Kalish, a sentence is not contrary to law when the trial court imposes a sentence within the
statutory range, after expressly stating that it had considered the purposes and principles of
sentencing as set forth in R.C. 2929.11, as well as the factors in R.C. 2929.12.” This merely
notes that the facts in Kalish were that the trial court had expressly stated that it had considered
the statutory factors. Obviously, if a trial court does state, on the record, that it has considered
the statutory factors, there is no need to rely upon a presumption that it did so. This is why the
lead opinion in Kalish, in noting that a silent record would raise the presumption, does so in a
footnote, not in the body of the opinion; in the Kalish opinion, the existence of a silent record is a
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hypothetical fact, not present in that case. We conclude that our opinion in Rodeffer does not
address the issue of whether a silent record would give rise to a presumption that the trial court
has considered the statutory factors, since the record in Rodeffer was not silent on that point.
{¶ 17} Likewise, in Haley, the third of the cases Carlton cites, the opinion notes at ¶ 14
that the trial court in that case had stated that it had considered the statutory factors, both at the
hearing, and in its sentencing entry. The Haley opinion did not concern itself, therefore, with the
situation, hypothetical in that case, in which a record is silent as to whether the trial court had
considered the statutory factors. Therefore, we conclude that the Haley opinion is not authority
for the proposition that consideration of the statutory sentencing factors may not be presumed
from a silent record.
{¶ 18} As the State notes, we have held on more than one occasion that a trial court’s
consideration of the statutory sentencing factors may be presumed from a silent record. State v.
Imber, 2d Dist. Clark No. 11CA0063, 2012-Ohio-3720, ¶ 26; State v. Neff, 2d Dist. Clark No.
2012-CA-31, 2012-Ohio-6047, ¶ 5; and State v. Gibson, 2d Dist. Champaign No. 2012-CA-38,
2013-Ohio-2930, ¶ 35. We see no reason to depart from that holding in this case.
{¶ 19} Although the trial court did not refer either to the purposes and principles of
sentencing (R.C. 2929.11) or to the seriousness and recidivism factors (R.C. 2929.12) in its
announcement of its sentencing decision, its remarks during its revocation decision, immediately
preceding the sentencing hearing, are instructive, especially since Carlton’s counsel, in closing
argument, had addressed not only the issue of whether Carlton had violated the terms of his
community control sanctions, but also the issue of the proper sanction to be imposed. The trial
court’s remarks included the following:
[Cite as State v. Carlton, 2014-Ohio-3835.]
In the Court’s view the primary issue is one of failure to report. How
does that play out in terms of my judgment? There was a two year failure to
report that was admitted by Mr. Carlton. That was a failure to report that
preexisted Judge Dankof’s granting, if you will, of another chance to Mr. Carlton.
Mr. Carlton said he was going through a very difficult time – the death of a
child, injury to his stepfather, other events in his life that basically put him in a
mental condition where he simply did not report for two years. It was under those
circumstances that Judge Dankof received the case on a revocation and did not
revoke, but chose to give Mr. Carlton another chance. If we were just talking
about that two year period, if that was the only issue of non-reporting before me, I
would say, you know, my colleague – my friend, Judge Dankof, someone whose
judgment I greatly respect had that before him and he chose not to revoke. And
that would have an impact on me. The problem is I’ve got another substantial
period where you did not report, Mr. Carlton. And I’m talking about October the
29th to December the 29th.
Now, what you’ve testified to is, hey, Scott Hartings [sic, Carlton’s
probation officer] was hard to get hold of. I left phone messages, I tried to call
Donnie Anderson [Harting’s “coverage partner”]. But you said yourself, you
made no effort – there was no attempt, no single attempt to go down to the
probation department.
This follows a period of two years where you had not reported at all and
you knew that was a big issue. You basically were given another opportunity
despite that big problem, and yet, in the context of not seeing Mr. Harting as
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required, you didn’t go down to the probation department. You didn’t either seek
him out or seek out – and I’m looking now at Rule 5 of the general conditions of
supervision. And this was something as has been acknowledged. The State’s
Exhibit 1. It was something you signed back in 2009 and the provision remains
the same. But the provision indicates, “I shall report at such time and place as
directed by my probation officer. If my probation officer is unavailable –” there
was testimony Mr. Harting was out for a period of time in November. Not all of
November and certainly not December 1 to December the 29th. That’s 29 days of
December where whatever happened in November that drew him out of the office
– I think it was a vacation – that wasn’t the case. There’s no evidence of that at
all that he was out in December.
And so according to Rule 5 which you’re acknowledging in State’s Exhibit
1, you shall report if Mr. Harting is unavailable to the officer of the day. His
testimony was when he is out the officer of the day – the person that covers for
him as he covers for this person – is Donnie Anderson. So you were in a position
in November, in December to go down there to look for Donnie Anderson. And,
indeed if Donnie Anderson, the officer of the day, was not available, you were in a
position pursuant to this requirement – this rule to look for the supervisor, the
manager, the assistant deputy, or the deputy court administrator. You had a
number of people that you could have reported to.
The Court finds as a matter of law your attempt to call – I don’t know how
many times – it wasn’t clear – how many times you attempted to call, but that’s
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not reporting when you have a number of people that would be available to you if
you simply went down to the probation office.
Why should you do that? You’re the person under probation. You’re the
person who is on community control sanctions and it’s up to you – it’s incumbent
upon you to follow those requirements. You’re the person that has to follow the
requirements. And this is after this two year non-reporting period which, as I
have said, if that was all that was before me, I would not revoke based on that
because I think Judge Dankof dealt with that. But when there follows another
substantial period on the heels of that, that’s a different – in the Court’s view –
that’s a different composition which leads me to the conclusions that I’ve reached.
{¶ 20} We find nothing in the record to rebut the presumption that the trial court
considered the purposes and principles of sentencing, and the seriousness and recidivism factors,
when it imposed sentence in this case. In the above-quoted remarks the trial court twice stressed
the fact that Carlton’s having absconded for two months in late 2013 occurred just months after
he had absconded for over two years, during which time Carlton made only three or four partial
payments of child support. This suggests, at least, that the trial court was considering the
recidivism factor represented by Carlton’s having absconded just shortly after a prior, longer
period during which he absconded, after which he was given another chance at community
control sanctions. It also suggests that the trial court gave consideration, in accordance with
R.C. 2929.11(A), to the fact that continuing community control sanctions as the sentence for
these offenses could no longer be deemed to be the minimum sanction needed to achieve the
purposes of felony sentencing without imposing an unnecessary burden on state or local
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government resources, since the community control sanctions that had been imposed were not
working.
{¶ 21} We conclude that the record does not support Carlton’s sole assignment of error,
which we overrule.
IV. Conclusion
{¶ 22} Carlton’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
.............
WELBAUM, J., concurs.
FROELICH, P.J., concurring:
{¶ 23} On this record, I concur in judgment.
{¶ 24} As stated in State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶
14, 15:
We understand Appellant’s argument to be further that even if he were in
violation of the conditions of his community control, the court should have
imposed a less restrictive sanction and continued him on community control.
“Community control is not a contract for good behavior. The community control
sanction is deemed the appropriate sentence to both punish the offender and
protect the public. Community control is not ‘a break’; it is the punishment that
fits the crime.” State v. Beverly, Ross App. No. 01 CA 2603, 2002-Ohio-118(emphasis in original).
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R.C. 2929.15(B) provides a trial court with three options if an offender
violates a condition or conditions of community control. State v. Belcher,
Lawrence App. No. 06 CA 32, 2007-Ohio-4256, ¶ 20. These are: (1) extend the
terms of the community control sanction, (2) impose a prison term that does not
exceed that prison term specified by the court at the offender’s sentencing hearing;
or (3) impose a stricter community control sanction. R.C. 2929.15(B).” State v.
Palacio, Ottawa App. No. OT-07-015, 2008-Ohio-2374, ¶ 8. A trial court’s
choice of sanction under R.C. 2929.15(B), where the defendant has violated the
conditions of community control, is subject to review on appeal under an abuse of
discretion standard. Id.; State v. Wolfson, Lawrence App. No. 03 CA 25,
2004-Ohio-2750, ¶ 8.
{¶ 25} Regardless, this is not an appeal pursuant to R.C. 2953.08 so our abuse of
discretion review has not been changed. See, e.g., State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d
1069 (2d Dist.).
{¶ 26} I believe the wording in the majority opinion that compliance with statutory
mandates is always presumed and the burden is always on the appellant to show noncompliance
is too broad.
{¶ 27} R.C. 2929.11(A) requires that a sentencing court be guided by the overriding
purposes of felony sentencing: 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 can accomplish
these purposes without imposing an unnecessary burden on state or governmental resources.
{¶ 28} To achieve these purposes, the court shall consider the need for incapacitating the
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offender, deterring the offender and others from future crime, rehabilitating the offender, and
making restitution. Similarly, R.C. 2929.12 grants discretion to the court, but says, in exercising
that discretion, the court shall consider the factors set forth in divisions (B)(C)(D)(E) and (F).
{¶ 29} If a court does not adhere to these statutory requirements, it is abusing its
discretion and the sentence would be reversed. The burden on an Appellant is to demonstrate
reversible error.
{¶ 30} Unlike R.C. 2929.14(C)(4), these statutes do not require “findings” on the record,
cf. State v. Bonnell, Slip Opinion No. 2014-Ohio-3177, syllabus. But they do require
consideration of, at least, the enumerated factors, and the exercise of judicial discretion in
applying them.
{¶ 31} Even in a case such as this where the court may be presumed to have considered
the factors, the proper exercise of its discretion in imposing a sentence is still subject to appellate
review.
{¶ 32} Carlton has not assigned abuse of discretion as error, and I would not find any if
it were alleged.
..........
Copies mailed to:
Mathias H. Heck
Andrew T. French
Victor A. Hodge
Hon. Michael W. Krumholtz