State v. Perry , 2017 Ohio 69 ( 2017 )

[Cite as State v. Perry, 2017-Ohio-69.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PIKE COUNTY
STATE OF OHIO, : Case No. 16CA863
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
ROGER PERRY, JR., :
Defendant-Appellant. : RELEASED 01/06/2017
APPEARANCES:
Darren L. Meade, Parks and Meade, LLC, Columbus, Ohio, for defendant-appellant.
Michael DeWine, Ohio Attorney General, Columbus, Ohio, and Katherine Mullin and
Jocelyn K. Lowe, Assistant Attorneys General, Cleveland, Ohio, for plaintiff-appellee.
Hoover, J.
{¶1} Roger Perry, Jr. (“Perry”), appeals his sentence from the Pike County
Common Pleas Court following his guilty pleas to one count of robbery, one count of
abduction, one count of grand theft of a motor vehicle, one count of having a weapon
while under disability, one count of possession of heroin, one count of resisting arrest,
and two gun specifications. Perry contends that the trial court erred in imposing
consecutive sentences for two reasons. First, Perry claims that the trial court failed to
make all the statutorily required findings. However, the transcript of the sentencing
hearing and the express terms of the sentencing entry show that the trial court considered
the appropriate factors and made the requisite findings before imposing consecutive
sentences. Perry also argues that the trial court failed “to conduct proper and complete
judicial fact-finding or proportionality analysis” to support the imposition of consecutive
Pike App. No. 16CA863 2
sentences. A trial court, however, is not required to state reasons to support its
consecutive sentence findings; and because our review of the record reveals that the trial
court made all of the required statutory findings, it did not err in imposing consecutive
sentences.
{¶2} Perry also contends that the trial court erred by imposing a prison sentence
that was more than the minimum sentence required by statute. However, because Perry
has failed to establish by clear and convincing evidence that the sentence is contrary to
law, this assignment of error is meritless.
{¶3} We affirm the judgment of the trial court.
I. Facts and Procedural Posture
{¶4} On April 1, 2015, J.L. arrived at the Beaver First Stop Convenience Store
to open the business and start work for the day. Before she could lock the door behind
her, Perry entered the store wearing a mask, dark clothing, and brandishing a silver
firearm. He ordered J.L. to empty the safe. J.L. complied and gave Perry over $5,000
from the safe. Perry then ordered J.L. to hand over cigarettes. J.L. again complied and
handed over ten packs of cigarettes. Perry then put J.L. into a cooler and told her to count
to 30 before coming out. Perry then rifled through J.L.’s purse and promised not to hurt
her car. When J.L. finally exited the cooler she called 911 and realized her car was stolen.
Video surveillance recorded the event.
{¶5} Perry was subsequently arrested at his home on April 3, 2015. At the time
of his arrest, Perry was found in possession of heroin and a silver firearm similar to the
one used in the robbery. The firearm was confiscated, test fired, and found to be operable.
Pike App. No. 16CA863 3
At the time of the offense, Perry was already under indictment in Franklin County, Ohio,
for felony drug possession.
{¶6} On June 29, 2015, Perry was indicted on the following charges:
aggravated robbery with firearm specifications (Count 1); robbery with firearm
specifications (Count 2); aggravated robbery with firearm specifications (Count 3);
robbery with firearm specifications (Count 4); kidnapping with firearm specifications
(Count 5); kidnapping with firearm specifications (Count 6); abduction with firearm
specifications (Count 7); abduction with firearm specifications (Count 8); grand theft of a
motor vehicle with firearm specifications (Count 9); having weapons while under
disability (Count 10); possession of heroin with a firearm specification (Count 11);
having weapons while under disability (Count 12); resisting arrest with firearm
specifications (Count 13); and burglary (Count 14).
{¶7} Perry entered into a negotiated plea on July 20, 2015. As part of his plea,
Perry admitted his guilt to Counts 2, 7, 9, 10, 11, and 13. Perry also pleaded guilty to a
three-year gun specification under Count 2, and to a one-year gun specification under
Count 13. The trial court subsequently found Perry guilty of each offense to which he
entered his plea; and the remaining counts and specifications were dismissed pursuant to
the agreement. The parties did not enter into an agreement with respect to sentencing.
{¶8} At sentencing, the trial court heard from J.L., who is a parent and
grandparent. J.L. testified about the fear she felt while Perry robbed her at gunpoint. She
explained that she relives the event daily. The State asked for a 15-year prison sentence
and restitution.
Pike App. No. 16CA863 4
{¶9} Perry asked for leniency and claimed that his actions were the result of his
drug addiction. E.S., Perry’s mother, told the trial court that her son would not have
committed the offenses had he been sober. Perry also apologized to J.L.
{¶10} The trial court sentenced Perry to an aggregate prison term of ten years
plus 36 months, of which four years is mandatory. The trial court also ordered restitution
in the amount of $5,167.09 and imposed a driver’s license suspension. The trial court ran
Perry’s sentences on Count 2, Count 13, and both firearm specifications consecutively to
each other, and consecutively to the sentence on the remaining counts.
{¶11} On February 25, 2016, Perry filed a notice of appeal along with a motion
for leave to file a delayed appeal. We subsequently granted Perry’s motion for leave to
file a delayed appeal.
II. Assignments of Error
{¶12} Perry assigns the following errors for our review:
Assignment of Error I:
Contrary to Ohio sentencing law, the trial court imposed consecutive, non-
minimum prison sentences without first making all of the required judicial
fact-findings under R.C. 2929.14(C)(4).
Assignment of Error II:
The Trial Court acted contrary to law in imposing a non-minimum prison
sentence.
III. Law and Analysis
{¶13} Both of Perry’s assignments of error challenge the imposed sentence.
When reviewing felony sentences, we apply the standard of review set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
Pike App. No. 16CA863 5
¶ 22. R.C. 2953.08(G)(2) specifies that an appellate court may increase, reduce, modify,
or vacate and remand a challenged felony sentence if the court clearly and convincingly
finds either:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant; [or]
(b) That the sentence is otherwise contrary to law.
{¶14} Because Perry failed to object to the imposed sentence at the sentencing
hearing, he has forfeited the sentencing issues absent plain error. Crim.R. 52(B). For a
reviewing court to find plain error: (1) there must be an error, i.e., “a deviation from a
legal rule”; (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings”;
and (3) the error must have affected “substantial rights,” i.e., it must have affected the
outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002). “[T]he burden of demonstrating plain error is on the party asserting it.” State v.
Davis, 116 Ohio St.3d 404, 2008–Ohio–2, 880 N.E.2d 31, ¶ 378. “We take notice of plain
error with the utmost of caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice.” State v. Merryman, 4th Dist. Athens No. 12CA28,
2013–Ohio–4810, ¶ 49.
A. Imposition of Consecutive Sentences
{¶15} In his first assignment of error, Perry contends that the trial court erred
when it sentenced him to consecutive sentences because it did not make the necessary
Pike App. No. 16CA863 6
findings under R.C. 2929.14(C)(4). Additionally, he argues that the trial court’s “failure
to conduct proper and complete judicial fact-finding or proportionality analysis is clearly
and convincingly contrary to Ohio’s sentencing statutes * * *.”
{¶16} R.C. 2929.14(C)(4) sets forth a tripartite procedure requiring the trial court
to make the following findings prior to imposing consecutive sentences: (1) “the
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 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 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); see also State v. Bever, 4th Dist. Washington No. 13CA21, 2014–
Ohio–600, ¶¶ 15-16; State v. Black, 4th Dist. Ross No. 12CA3327, 2013–Ohio–2105, ¶¶
Pike App. No. 16CA863 7
56–57. The trial court “is required to make the findings mandated by R.C. 2929.14(C)(4)
at the sentencing hearing and [to] incorporate its findings into the sentencing entry, but it
has no obligation to state reasons to support its findings.” State v. Bonnell, 140 Ohio
St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659, syllabus. Furthermore, the trial court is not
required to recite “a word-for-word recitation of the language of the statute”, but it must
be clear from the record that the trial court “engaged in the correct analysis and * * * that
the record contains evidence to support the findings * * *.” Id. at ¶ 29.
{¶17} In the case sub judice, the trial court expressly stated at the sentencing
hearing that:
[T]he Court does find that consecutive service in this matter is necessary
to protect the public from future crime and to punish you, and that
consecutive sentences are not disproportionate to the seriousness of your
conduct and to the danger that you pose to the public * * * and the Court
also finds that at least two (2) of these offenses were committed as part of
one or more courses of conduct, and the harm caused by two (2) or more
of these multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of the courses
of conduct adequately reflects the seriousness of your conduct, and also,
that your prior criminal history demonstrates that consecutive sentences
are necessary to protect the public from future crime * * * by yourself.
Furthermore, these findings were also incorporated into the trial court’s sentencing entry.
Thus, the record shows that the trial court considered all three factors set forth in R.C.
Pike App. No. 16CA863 8
2929.14(C)(4) in imposing consecutive sentences; and Perry’s argument that the trial
court failed to recite or consider the required findings is without merit.
{¶18} To the extent that Perry argues that the trial court failed to conduct proper
and complete judicial fact-finding or proportionality analysis, we note that while the trial
court must make the findings required by R.C. 2929.14(C)(4), the court has no obligation
to state the reasons to support its findings. Bonnell at ¶ 27; State v. Howze, 10th Dist.
Franklin Nos. 13AP-386 & 13AP-387, 2013-Ohio-4800, ¶ 18; State v. Stamper, 12th
Dist. Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 23. “Having made sufficient
findings for the imposition of consecutive sentences, the trial court fulfilled the R.C.
2929.14(C)(4) requirements. Thus, the trial court's failure to identify the factors—or ‘the
reasons’—that were considered in its proportionality analysis does not render the
consecutive sentences contrary to law.” State v. Crawley, 8th Dist. Cuyahoga No.
102781, 2015-Ohio-5150, ¶ 13.
{¶19} Because the trial court did not err in imposing consecutive sentences, we
overrule Perry’s first assignment of error.
B. Imposition of Non-minimum Prison Sentence
{¶20} In his second assignment of error, Perry contends that the trial court acted
contrary to law in imposing a non-minimum prison sentence. Specifically, Perry argues
that “[m]any factors demonstrated a minimum prison sentence would have satisfied the
purposes and principles of the sentencing statutes”, including Perry’s age, his familial
status, his criminal history, his employment history, his history of drug addiction, and his
remorse towards the victim. He further claims that the trial court “failed to consider
Pike App. No. 16CA863 9
several factors and was clearly unreasonable” in imposing a non-minimum prison
sentence.
{¶21} “[A] sentence is generally not contrary to law if the trial court considered
the R.C. 2929.11 purposes and principles of sentencing as well as the R.C. 2929.12
seriousness and recidivism factors, properly applied post[-]release control, and imposed a
sentence within the statutory range.” State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶
38 (4th Dist.). “The sentence must also comply with any specific statutory requirements
that apply, e.g. a mandatory term for a firearm specification, certain driver’s license
suspensions, etc.” Id.{¶22} Here, the trial court expressly stated in its sentencing entry that it
considered the principles and purposes of sentencing under R.C. 2929.11 and balanced
the seriousness and recidivism factors under R.C. 2929.12. Although the trial court did
not make specific findings concerning the various factors in these statutes, it had no
obligation to do so. State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635,
¶ 38 (“[T]he trial court was not required to make findings or give reasons for imposing
more than the minimum sentence.”). Moreover, Perry does not contend that the trial court
improperly applied post-release control, imposed a sentence outside the statutory range,
or failed to comply with any other “statutory requirements”. Accordingly, we conclude
that Perry’s non-minimum prison sentence is not clearly and convincingly contrary to
law; nor does the sentence constitute plain error.
{¶23} Because the trial court did not err in imposing a non-minimum prison
sentence, we overrule Perry’s second assignment of error.
IV. Conclusion
Pike App. No. 16CA863 10
{¶24} Having overruled both of Perry’s assignments of error for the foregoing
reasons, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Harsha, J., and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.