State v. Redmond , 2019 Ohio 309 ( 2019 )

[Cite as State v. Redmond, 2019-Ohio-309.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1066
Appellee Trial Court No. CR0201702987
v.
Charles Edward Redmond DECISION AND JUDGMENT
Appellant Decided: February 1, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Sarah Haberland, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a February 22, 2018 judgment of the Lucas County
Court of Common Pleas, sentencing appellant to a three-year term of incarceration
following appellant’s conviction on one count of burglary, in violation of R.C. 2911.12, a
felony of the third degree.
{¶ 2} This offense occurred while appellant was on community control for prior
felony convictions. For the reasons set forth below, this court affirms the judgment of the
trial court.
{¶ 3} Appellant, Charles Edward Redmond, sets forth the following two
assignments of error:
I. The trial court erred by abusing its discretion at sentencing, thus
defendant is awarded appellate rights under R.C. 2953.08(A)(1)(a).
II. The trial court abused its discretion at sentencing, by failing to
consider all of the necessary factors under R.C. 2929.12.
{¶ 4} The following undisputed facts are relevant to this appeal. On
November 15, 2017, appellant was indicted on one count of burglary, in violation of R.C.
2911.12, a felony of the first degree. This case arises from appellant’s unlawful incursion
into the Toledo area apartment of three female college students.
{¶ 5} The record reflects that appellant, who possesses an extensive criminal
record, including prior felony convictions and related terms of incarceration, committed
the instant offense while on community control resulting from prior criminal convictions.
{¶ 6} On February 5, 2018, pursuant to a voluntarily negotiated plea agreement,
appellant pled guilty to a lesser, third-degree felony burglary offense, in violation of R.C.
2911.12.
2.
{¶ 7} On February 22, 2018, the same trial court judge to whom appellant
remained on community control on the earlier conviction, sentenced appellant in the
present case.
{¶ 8} The record reflects that the trial court judge thoroughly considered the
evidence and relevant factors in the course of crafting the sentence in this case. The trial
court stated in relevant part, “You committed this crime while you’re on probation to me
* * * You did four years for a conviction on rape. You now have been convicted of
burglary. It just doesn’t seem to me that you understand what it means to be a law-
abiding citizen.”
{¶ 9} The record further reflects that the trial court went on to convey, “I have
considered your record * * * I have listened to the statements made, I have read victim
impact statements * * * [C]onsidered the principles and purposes of sentencing * * * I’ve
balanced the seriousness and recidivism factors * * * [I’ve] considered all factors.”
{¶ 10} The trial court ultimately concluded, “I find that you are not amenable to
community control and that prison is consistent with the purposes of [R.C.] 2929.11.”
Appellant was sentenced to a three-year term of incarceration. This appeal ensued.
{¶ 11} In the first assignment of error, counsel for appellant sets forth that
appellant possesses the ability to pursue this appeal as a matter of right pursuant to R.C.
2953.08(A)(1)(a) given that appellant received the “maximum prison term allowed for
the offense.”
3.
{¶ 12} In response to the first assignment of error, appellee simply concurs that
under the facts and circumstances of this case appellant is entitled to an appeal as a matter
of statutory right.
{¶ 13} We find appellant’s first assignment of error to be well-taken, while noting
for clarity that the matter framed by appellant as the first assignment of error constitutes
an uncontested assertion of appellant’s statutory right to an appeal in this case.
{¶ 14} In appellant’s second assignment of error, appellant maintains that the trial
court improperly, unlawfully sentenced appellant. We do not concur.
{¶ 15} It is well-established that the proper scope of felony sentence review by
Ohio appellate courts is set forth in R.C. 2953.08(G)(2). As such, an appellate court may
decrease, increase, modify, or vacate and remand a disputed felony sentence if it clearly
and convincingly finds either that the sentence was based upon relevant statutory findings
not supported by the record or it is otherwise contrary to law. State v. Tammerine, 6th
Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.
{¶ 16} In support of appellant’s second assignment of error, appellant
unconvincingly suggests that the trial court improperly assessed the seriousness of the
crime by viewing it as a more serious offense than appellant believes should have been
the case.
{¶ 17} Appellant suggests that because the students who live in the apartment
were not at home when appellant unlawfully entered the residence, that should operate to
4.
render the offense to be considered as not serious enough to justify the sentence imposed.
We are not persuaded.
{¶ 18} The record reflects that appellant, while on community control for separate
felony convictions, wore a mask, rubber gloves, and entered an apartment with a hammer
where he had no legal right to be present.
{¶ 19} The record reflects, and the trial judge noted, convincing evidence such as
the extent of appellant’s prior criminal convictions, prior terms of incarceration, and prior
terms of community control. Accordingly, the trial court correctly held that the
prevailing interest in this case of protection of the public and the risk of recidivism
weighed strongly in support of the disputed sentence.
{¶ 20} The record is devoid of any evidence, and appellant has failed to
demonstrate, that the sentence underlying this case was based upon applicable statutory
findings not supported by the record or was otherwise contrary to law. We find
appellant’s second assignment of error not well-taken.
{¶ 21} Wherefore, the judgment of the Lucas County Court of Common Pleas is
hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
5.
State v. Redmond
C.A. No. L-18-1066
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
6.