State v. Artz , 2015 Ohio 3789 ( 2015 )

[Cite as State v. Artz, 2015-Ohio-3789.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2014-CA-34
:
v. : T.C. NO. 13CR167, 13CR347
:
ROBERT K. ARTZ : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___18th___ day of ____September____, 2015.
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JANE A. NAPIER, Atty, Reg. No. 0061426, 200 N. Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 E. Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Robert K. Artz appeals the trial court’s decision to
revoke his community control and impose a sentence of twenty-six months in prison
based on his prior convictions for one count of domestic violence, in violation of R.C.
2919.25(A)(D)(3), a felony of the fourth degree; and one count of possession of
marijuana, in violation 2925.11(A)(C)(3)(c), a felony of the fifth degree. On November 3,
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2014, Artz filed a motion for leave to file notice of a delayed appeal. The State did not
respond to Artz’s motion. On December 10, 2014, we issued a decision and entry
sustaining Artz’s motion for leave to file notice of a delayed appeal. The instant appeal
followed.
{¶ 2} On September 17, 2013, Artz pled guilty to one count of domestic violence in
Case No. 2013 CR 167, and the trial court ordered the probation department to prepare a
pre-sentence investigation report (PSI) in that case. Shortly thereafter on December 16,
2013, Artz pled guilty to one count of possession of marijuana in Case No. 2013 CR 347.
In an entry issued on December 17, 2013, the trial court sentenced Artz to community
control for a period of three years for both offenses.
{¶ 3} On September 2, 2014, Brandon Deskins, Artz’s probation officer, filed a
notice of supervision violation against Artz. In the notice, Deskins asserted that Artz
committed the following violations of the conditions of his community control:
1. Artz failed to report to his supervising officer on the second Wednesday of
every month since April of 2014.
2. On or about August 29, 2014, Artz operated a motor vehicle without a valid
driver’s license.
3. On or about August 28, 2014, Artz was unsuccessfully discharged from the
West Central Probation Incentive Program.
4. Artz failed to obtain an assessment and thereafter successfully complete
substance abuse and alcohol counseling.
5. Artz admitted to consuming alcohol since being placed on supervision.
6. On or about two weeks prior to August 29, 2014, Artz had contact with Wendy
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Campbell, the woman whom he committed the domestic violence against and
whom he had been specifically ordered to avoid.
{¶ 4} A community control revocation hearing was held before the trial court on
September 16, 2014. At the beginning of the hearing, Artz admitted to violations (1), (2),
(3), and (4) as set forth in Deskins’ motion for revocation. Artz, however, challenged
violations (5) and (6), and the trial court then heard testimony from Deskins and Artz.
Deskins testified that Artz reported to him on August 29, 2014. Prior to that date,
Deskins testified that Artz had not reported since April of 2014. Deskins testified that
during their meeting, Artz stated that he had recently consumed alcohol and that he had
contact with Wendy Campbell when he borrowed her car to drive to the probation office.
Artz did not have a valid driver’s license when he drove to the meeting with Deskins.
{¶ 5} Conversely, Artz testified that he did not consume any alcoholic beverages
other than a few non-alcoholic beers. Artz also testified that he had no contact with
Campbell. Artz testified that his mother contacted Campbell so that he could borrow her
car.
{¶ 6} Ultimately, the trial court found that Artz had violated all six of the conditions
enumerated by Deskins in his motion for revocation. Accordingly, the trial court revoked
Artz’s community control and ordered him to serve eighteen months in prison for domestic
violence and eight months in prison for possession of marijuana, the sentences to be
served consecutively for an aggregate sentence of twenty-six months imprisonment.
{¶ 7} It is from this judgment that Artz now appeals.
{¶ 8} Artz’s sole assignment of error is as follows:
{¶ 9} “APPELLANT SHOULD BE REMANDED TO THE TRIAL COURT FOR
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SENTENCING AS THE SENTENCE HE RECEIVED IS CONTRARY TO LAW AND IN
VIOLATION OF HIS RIGHTS UNDER THE EIGHTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.”
{¶ 10} In his sole assignment, Artz contends that the twenty-six month sentence
imposed by the trial court is contrary to law and/or an abuse of discretion. Artz also
argues that the facts present in the instant case do not support the imposition of
consecutive sentences.
{¶ 11} “[C]ommunity control revocation proceedings are not the same as a
criminal trial, and a revocation of community control punishes the failure to comply with
the terms and conditions of community control, not the specific conduct that led to
the revocation.” State v. Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, ¶ 17.
Upon revoking community control, the trial court may (1) lengthen the term of the
community control sanction; (2) impose a more restrictive community control sanction; or
(3) impose a prison term on the offender, provided that the prison term is within the range
of prison terms available for the offense for which community control had been imposed
and the term does not exceed the prison term specified in the notice provided to the
offender at the original sentencing hearing. R.C. 2929.15(B).
The trial court has significant discretion in sentencing a defendant for a
community control violation, so long as it is consistent with the purposes
and principles of sentencing and with notification provided by the trial court
when imposing the community control sanctions. See R.C. 2929.15(B)(2);
State v. Brooks, 103 Ohio St. 3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶
20 (stating that a trial court has “a great deal of latitude in sentencing” an
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offender for a community control violation). When sentencing an offender
for a community control violation, the trial court must “consider both the
seriousness of the original offense leading to the imposition of community
control and the gravity of the community control violation.” Id. at ¶ 20.
State v. Stevens, 2d Dist. Greene No. 2014-CA-10, 2015-Ohio-1051, ¶ 8, citing State v.
Hart, 4th Dist. Athens No. 13CA8, 2014-Ohio-3733, ¶ 13.
{¶ 12} When an offender’s community control is revoked and multiple prison terms
are imposed for the underlying offenses, the trial court must make the findings under R.C.
2929.14(C)(4) before imposing consecutive sentences at the revocation sentencing
hearing. See, e.g., State v. West, 2d Dist. Montgomery No. 24998, 2012-Ohio-4615
(noting that the prison sentence for violating community control was not imposed until the
revocation sentencing hearing, and that the trial court was required to comply with R.C.
2929.14(C)(4) to impose consecutive sentences); State v. Jacquillard, 1st Dist. Hamilton
No. C-140001, 2014-Ohio-4394 (applying R.C. 2929.14(C)(4) to sentencing upon
revocation of community control); State v. Holman, 8th Dist. Cuyahoga No. 100468,
2014-Ohio-3908; State v. Steck, 6th Dist. Wood Nos. WD-13-017 and WD-13-018,
2014-Ohio-3623.
{¶ 13} R.C. 2929.14(C)(4) allows for the imposition of consecutive sentences if the
trial court finds that: (1) a “consecutive service is necessary to protect the public from
future crime or to punish the offender”; (2) “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public”; and (3) one or more of the following three findings are
satisfied:
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(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 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(C)(4)(a)-(c).
{¶ 14} In the instant case, the trial court made the following findings at the
sentencing hearing and in its judgment entry regarding its decision to revoke Artz’s
community control:
In imposing sentence the Court considered and applied the
purposes and principles of sentencing as set forth in [R.C.] 2929.11
Divisions A, B, and C. Court also looked at seriousness and recidivism
factors. With regard to more serious, the Court finds that the Defendant
has five prior OVI convictions, four prior driving under suspension
convictions, and he committed community control violations involving
prohibited consumption of alcohol and operating a motor vehicle without
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driving privileges. Secondly, Defendant has two prior criminal convictions
for domestic violence against Wendy Campbell. And he admitted
prohibited contact with Wendy Campbell. Thirdly, he lied to his probation
officer about his contact with Wendy Campbell until he was confronted by
his probation officer with undisputable evidence that he was utilizing Wendy
Campbell’s motor vehicle with her consent.
Fourthly, Defendant admits refusal to obtain an assessment for
alcohol counseling by an agency suggested by the West Central Incentive
Probation Program. And, fifth, the Defendant’s relationship with the victim
facilitated the community control violations.
*** The Court concludes factors establishing the Defendant’s
conduct is more serious outweigh factors establishing conduct is less
serious.
With regarding to recidivism, the Court finds that he is more likely to
commit future crimes. He has a history of criminal convictions. He has
not responded favorably to sanctions previously imposed. He refuses
treatment for alcohol abuse and has demonstrated a pattern of alcohol
abuse that is related to the offense. And he shows no genuine remorse for
the offense.
With regard to less likely to commit future crimes, the Court finds
none. Court also finds that the Defendant continues his association with
Wendy Campbell despite Court orders not to do so. Court concludes that
the factors establishing the Defendant’s recidivism is more likely outweigh
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[sic] factors establishing the Defendant’s recidivism is less likely.
*** Court finds that the Defendant is not amenable to available
community control sanctions based on the Defendant’s refusal to follow
Court orders from the moment he was told to fill out his [PSI] questionnaire
up through and including his failure to comply with his orders with the
probation officer. Court also notes that the Defendant has previous
community control supervision failure.
{¶ 15} With respect to its decision to impose consecutive sentences, the trial court
made the following findings:
In imposing consecutive sentences, the Court finds that consecutive
sentence [sic] is necessary to protect the public from future crime or to
punish the Defendant. Consecutive sentences are not disproportionate to
the seriousness of the conduct and danger that Defendant poses to the
public. And Defendant’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crimes by the Defendant.
{¶ 16} Artz does not claim that the trial court failed to make the statutory findings
under R.C. 2929.14(C)(4); rather, he asserts that the record does not support the trial
court’s findings regarding the imposition of consecutive sentences. Specifically, Artz
argues that he had no felony convictions prior to the instant case, and his criminal history
consists of misdemeanor violations “and are not inherently serious in nature.” Artz also
argues that he “has not committed violent offenses and is not inherently dangerous to
others.”
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{¶ 17} “On appeals involving the imposition of consecutive sentences, R.C.
2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the findings
underlying the sentence’ and to modify or vacate the sentence ‘if
it clearly and convincingly finds * * * [t]hat the record does not support the sentencing
court’s findings under division * * * (C)(4) of section 2929.14 * * * of the Revised
Code.’” State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28. In
State v. Rodeffer, 2013–Ohio–5759, 5 N.E.3d 1069 (2d Dist.), we held that we would no
longer use an abuse of discretion standard in reviewing a felony sentence, but would
apply the standard of review set forth in R.C. 2953.08(G)(2).1
{¶ 18} According to PSI prepared for his original sentencing in December of
2013, Artz was forty-two years old when he committed the instant offenses. As noted by
the trial court, Artz’s PSI indicates that he has five prior OVI convictions and four prior
convictions for driving under suspension. We note that there was also a prior conviction
for child endangering in which Artz’s alcohol abuse was a major factor. The record
establishes that Artz clearly has an alcohol problem but refuses to obtain an assessment
for alcohol counseling in violation of his community control sanctions and failed to
complete treatment at West Central Probation Incentive Program. In fact, Artz admitted
consuming alcohol to his probation officer in clear violation of his community control
sanctions. Artz also failed to report to his probation officer from April of 2014 until August
1
Since then, several opinions from this court have expressed reservations about whether
that decision in Rodeffer is correct. See, e.g., State v. Garcia, 2d Dist. Greene No.
2013–CA–51, 2014–Ohio–1538, ¶ 9, fn.1; State v. Dover, 2d Dist. Clark No.
2013–CA–58, 2014–Ohio–2303, ¶ 23; State v. Johnson, 2d Dist. Clark No. 2013–CA–85,
2014–Ohio–2308, ¶ 9, fn.1; State v. Byrd, 2d Dist. Montgomery No. 25842,
2014–Ohio–2553, ¶ 44; State v. Collins, 2d Dist. Montgomery No. 25874,
2014–Ohio–2443, ¶ 21, fn. 1.
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29, 2014.
{¶ 19} We note that although the trial court stated that Artz has two prior
convictions for domestic abuse against Wendy Campbell, the record establishes that one
of the cases wherein she was the complainant (2011 CR 2654/2655) was ultimately
dismissed on December 15, 2011. However, shortly after the dismissal, Artz was
convicted of a separate charge of domestic violence involving Campbell on December 30,
2011. Additionally, Artz was continuing to have contact with Campbell despite being
ordered to stay away from her. Moreover, Artz admitted to lying to his probation officer
regarding his contact with Campbell until he was confronted with the fact that he was
illegally using her vehicle with her consent.
{¶ 20} We also find that Artz’s attempt to characterize all of his prior offenses as
non-violent is inaccurate. Regarding Artz’s prior conviction for domestic violence, the
PSI indicates that he “grabbed [Campbell] by the throat, and began choking her with his
hands causing visible marks to her neck. With respect to the instant domestic violence
charge which occurred on May 21, 2013, the PSI indicates that after arguing with
Campbell, Artz picked up a tire and hit her in the head with it. When Campbell fell down
after being struck, Artz began kicking her in the head and torso while wearing boots. The
PSI stated that both Artz and Campbell appeared to be intoxicated at the time of the
incident.
{¶ 21} The trial court found that consecutive sentences were necessary to protect
the public and to punish Artz, and that such sentences were not disproportionate to the
seriousness of his conduct or the danger he poses to the public, particularly in light of his
history of criminal conduct and his failure to abide by the terms of community control
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sanctions. In its judgment entry, the trial court stated that it had considered the principles
and purposes of sentencing under R.C. 2929.11 and the seriousness and recidivism
factors set forth in R.C. 2929.12.
{¶ 22} Considering Artz’s original offenses leading to the imposition of community
control (domestic violence and possession of marijuana), the community control
violations, and Artz’s criminal history, we cannot clearly and convincingly find that the
record does not support the trial court’s imposition of consecutive sentences. Based on
the totality of the record at the time of sentencing on the community control violations, we
find that the trial court did not err when it determined (1) that a sentence imposing
consecutive sentences for domestic violence and possession of marijuana, totaling
twenty-six months in prison, was necessary to protect the public from future crime or to
punish Artz; (2) that a consecutive sentence was not disproportionate to the seriousness
of Artz’s conduct and to the danger he posed to the public; and (3) that his history of
criminal conduct demonstrated that consecutive sentences were necessary to protect the
public from future crime by him.
{¶ 23} The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and to punish the offender. R.C. 2929.11(A). The trial court
has discretion to determine the most effective way to comply with the purposes and
principles of sentencing. R.C. 2929.12(A). Upon review, we find no arguable merit in a
contention that the trial court abused its discretion in imposing a consecutive sentence
totaling twenty-six months in the instant case.
{¶ 24} With respect to Artz's Eighth Amendment challenge, we note that “Eighth
Amendment violations are rare, and instances of cruel and unusual punishment are
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limited to those punishments, which, under the circumstances, would be considered
shocking to any reasonable person.” (Citations omitted.) State v. Mayberry,
2014–Ohio–4706, 22 N.E.3d 222, ¶ 38 (2d Dist.); State v. Harding, 2d Dist. Montgomery
No. 20801, 2006–Ohio–481, ¶ 77. Therefore, “ ‘as a general rule, a sentence that falls
within the terms of a valid statute cannot amount to a cruel and unusual punishment.’ ”
State v. Hairston, 118 Ohio St. 3d 289, 2008–Ohio–2338, 888 N.E.2d 1073, ¶ 21, quoting
McDougle v. Maxwell, 1 Ohio St. 2d 68, 69, 203 N.E.2d 334 (1964). Because Artz's
prison terms fall within the specific ranges of punishment set forth by the legislature for his
offenses, and the trial court concluded that he should serve those sentences
consecutively, we do not find that the sentence constitutes cruel and unusual punishment
under the Eighth Amendment.
{¶ 25} Artz’s sole assignment of error is overruled.
{¶ 26} Artz’s sole assignment of error having been overruled, the judgment of the
trial court is affirmed.
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FROELICH, P.J. and WELBAUM, J., concur.
Copies mailed to:
Jane A. Napier
Anthony R. Cicero
Hon. Nick A. Selvaggio