State v. Slamka , 2019 Ohio 3317 ( 2019 )

[Cite as State v. Slamka, 2019-Ohio-3317.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-10-200
: OPINION
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:
KEITH RANDALL SLAMKA, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-06-0983
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Michele Temmel, 6 South Second Street, #305, Hamilton, Ohio 45011, for appellant
HENDRICKSON, P.J.
{¶ 1} Appellant, Keith Randall Slamka, appeals from the sentence he received in the
Butler County Court of Common Pleas for two counts of theft. For the reasons discussed
below, we affirm appellant's sentence.
{¶ 2} In June 2018, appellant was indicted on two counts of theft in violation of R.C.
2913.02(A)(1), (B)(2), felonies of the fifth degree, one count of misuse of credit cards in
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violation of R.C. 2913.21(B)(2), a felony of the fifth degree, and one count of petty theft in
violation of R.C. 2913.02(A)(1), (B)(2), a misdemeanor of the first degree. According to the
bill of particulars, the charges arose from appellant's conduct on April 19, 2018 and April 20,
2018. Appellant was charged with stealing lawn equipment, household items, and a credit
card from M.C. Appellant then used the credit card to withdraw over $2,000 from ATM
machines and to charge over $1,500 of goods and services without M.C.'s permission.
{¶ 3} On September 13, 2018, following plea negotiations, appellant pled guilty to two
counts of theft in exchange for the remaining counts being dismissed. At the plea hearing,
the state explained the differences between the two theft counts, stating: "Count I is stealing
the credit card; Count II is withdrawing money from the ATM machine with the stolen card."
The trial court accepted appellant's guilty plea, set the matter for sentencing on October 18,
2018, and ordered that a presentence investigative ("PSI") report be prepared. The court
also informed the parties that the issue of whether the two theft offenses were allied offenses
would be "talk[ed] about * * * when we come back for the sentencing."
{¶ 4} However, the issue of allied offenses was never discussed at the sentencing
hearing. Instead, the trial court heard from defense counsel and appellant in mitigation and
allocution before imposing a sentence on appellant. Defense counsel acknowledged
appellant had served a prior prison term and had "drug and alcohol issues," which included
the use of heroin and multiple OVI convictions, but counsel nonetheless contended appellant
was contrite and had taken responsibility for his actions. Counsel stated appellant had
obtained his G.E.D. and had the ability to work, and counsel requested that the court
consider imposing community control sanctions rather than a prison term. Appellant
acknowledged that he had "bit the hand off that's feeding [him]" when he stole from M.C., as
M.C. had been providing him with a place to live and with money for doing certain jobs for
her. Appellant stated that he "regret[ted] what [he] done" and wanted "a chance to get out on
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community control, [see] how things would work; get out and do the right thing."
{¶ 5} After reviewing the PSI and victim impact statement and considering the
information presented at the sentencing hearing, the trial court determined that community
control was not an appropriate sanction and that a prison term was warranted. The trial court
stated its intent to impose nine-month prison terms on each theft offense, to be served
consecutively for an aggregate prison term of 18 months. The court made the necessary
consecutive sentencing findings, informed appellant that he may be subject to a three-year
optional period of postrelease control upon his release from prison, and ordered appellant to
pay court costs and $1,047.48 in restitution to M.C.
{¶ 6} However, after the court first announced its sentence, the following discussion
occurred:
THE COURT: Defendant will be held in Butler County Jail until
he can be transported to prison. Good luck to you, Mr. Slamka.
[APPELLANT]: Uh-huh.
THE COURT: And he struts out of the courtroom.
[APPELLANT]: Make you feel good to give us (sic) that much.
THE COURT: Oh, hang on, I've got to rethink this a little bit. Mr.
Slamka wants to mouth off and make a scene here.
Mr. Slamka, your attorney is still present; what is it you wanted to
share with the Court?
[APPELLANT]: No, I just think it's crazy getting 18 months for
this. (Indiscernible) people selling drugs get less time than
(indiscernible).
THE COURT: I see. Well, I would say this: I think your
comments are reflective of someone who has absolutely no
remorse or insight into the wrongfulness of your actions. And
after additional consideration, the Court is inclined to modify your
sentence. Before I do so, does counsel wish to be heard?
[DEFENSE COUNSEL]: Judge, I think that – I know the Court's
had ample time and careful consideration prior to the sentence
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that had just been handed out, I'd ask – I think that it's probably
most appropriate to let the sentence that the Court just rendered
stand, as opposed to being modified at this time.
THE COURT: Thank you. Mr. Slamka, is there anything else
you wish to bring to my attention?
[APPELLANT]: No.
THE COURT: Oh, all right. State have anything further?
[PROSECUTOR]: No, Your Honor, thank you.
THE COURT: After careful consideration, the Court will find a
more appropriate sentence is 12 months on Count I, 12 months
on Count II. They run consecutive, that's 24 months in prison.
All the same warnings and information I previously gave you
apply, as well as the consecutive findings.
{¶ 7} At defense counsel's request, the trial court noted appellant's objection to the
imposition of maximum, consecutive sentences. Thereafter, the trial court issued its
Judgment of Conviction Entry, which imposed consecutive 12-month prison terms for
appellant's theft offenses.
{¶ 8} Appellant appealed his sentence, raising two assignments of error.
{¶ 9} Assignment of Error No 1:
{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT
IMPOSED A SECOND, HARSHER SENTENCE THAN ORIGINALLY CONTEMPLATED.
{¶ 11} In his first assignment of error, appellant challenges his sentence, arguing that
the "imposition of a harsher, maximum sentence than what was originally contemplated by
the trial judge was not clearly and convincingly supported by the record and defied the
purposes and principles of sentencing under R.C. 2929.11 and 2929.12."
{¶ 12} We review the imposed sentence under the standard of review set forth in R.C.
2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-
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3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's
decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an
appellate court to modify or vacate a sentence only if the appellate court finds by clear and
convincing evidence that "the record does not support the trial court's findings under relevant
statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. A sentence is not
clearly and convincingly contrary to law where the trial court "considers the principles and
purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes
postrelease control, and sentences the defendant within the permissible statutory range."
State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious,
12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this court may "increase,
reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the
sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146
Ohio St. 3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7.
{¶ 13} A trial court has discretion to impose a prison term on an offender who pleads
guilty to a fifth-degree felony that is not an offense of violence if the offender "at the time of
the offense was serving, or the offender previously had served, a prison term." R.C.
2929.13(B)(1)(b)(x). "[I]n determining whether to impose a prison term as a sanction for a
felony of the * * * fifth degree, the sentencing court shall comply with the purposes and
principles of sentencing under section 2929.11 of the Revised Code and with section
2929.12 of the Revised Code." R.C. 2929.13(B)(2).
{¶ 14} The purposes of felony sentencing are to protect the public from future crime by
the offender and to punish the offender. Former R.C. 2929.11(A).1 A felony sentence must
1. After appellant was sentenced on October 18, 2018, R.C. 2929.11 was amended. See 2018 Am.Sub.S.B. 66
(effective Oct. 29, 2018). The amendment added a third purpose of felony sentencing – "to promote the effective
rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes
without imposing an unnecessary burden on state or local government resources." R.C. 2929.11(A).
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be reasonably calculated to achieve the purposes set forth in R.C. 2929.11(A)
"commensurate with and not demeaning to the seriousness of the offender's conduct and its
impact on the victim, and consistent with sentences imposed for similar crimes committed by
similar offenders." Former R.C. 2929.11(B). In sentencing a defendant, a trial court is not
required to consider each sentencing factor, but rather to exercise its discretion in
determining whether the sentence satisfies the overriding purpose of Ohio's sentencing
structure. State v. Littleton, 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, ¶ 12.
The factors set forth in R.C. 2929.12 are nonexclusive, and R.C. 2929.12 explicitly allows a
trial court to consider any relevant factors in imposing a sentence. State v. Birt, 12th Dist.
Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 64.
{¶ 15} After a thorough review of the record, we find no error in the trial court's
decision to sentence appellant to 12 months in prison for each of his fifth-degree felony theft
offenses. The record plainly reveals that appellant's sentence is not clearly and convincingly
contrary to law as appellant served a prior prison term, as contemplated by R.C.
2929.13(B)(1)(b)(x), and the court properly considered the principles and purposes of R.C.
2929.11, as well as the factors listed in R.C. 2929.12, informed appellant he may be subject
to up to three years of postrelease control upon his release from prison, and sentenced
appellant within the permissible statutory range for his fifth-degree felonies in accordance
with R.C. 2929.14(A)(5).
{¶ 16} In both the court's sentencing entry and at the sentencing hearing, the trial court
specifically stated it had "considered the purposes and principles of sentencing [and]
weighed the recidivism and seriousness factors" before finding that appellant was not
amenable to available community control sanctions and imposing a prison sentence. The
court noted it had reviewed the PSI report, which detailed appellant's lengthy criminal history
involving multiple convictions for OVI, petty theft, and disorderly conduct, as well as a
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conviction for felony nonsupport of dependents. The court also discussed the fact that
appellant's relationship with the victim facilitated the offense, noting that appellant had
victimized the woman who gave him a place to live and provided him with money. The court
stated, "the biggest problem here, [is] not that you've stumbled and fallen in the past, but
[that] this woman [was] trying to help you and you take her rototiller, you take her power
washer, you take whatever else. * * * I find that problematic."
{¶ 17} The court was also clearly troubled by appellant's lack of genuine remorse and
insight into his behavior. Although appellant had acknowledged his wrongdoing by pleading
guilty and stating that he "bit the hand off that's feeding [him]," appellant's comments that the
contemplated 18-month prison sentence was "crazy" and was only given to "make [the judge]
feel good" demonstrated appellant's failure to appreciate his actions. As appellant's
statements were made before the conclusion of the sentencing hearing, the trial court was
certainly entitled to consider these statements in ensuring the sentence it imposed complied
with principles and purposes of felony sentencing. As the court noted, appellant's statements
were "reflective of someone who has absolutely no remorse or insight into the wrongfulness
of [his] actions." "Genuine remorse is one factor to be considered by the court when it makes
its sentencing decision." State v. Rehab, 150 Ohio St. 3d 152, 2017-Ohio-1401, ¶ 28, citing
R.C. 2929.12(D)(5). The trial court's decision to therefore consider appellant's lack of
genuine remorse and impose consecutive, 12-month prison terms under the facts presented
in this case was appropriate.
{¶ 18} Appellant's argument that his criminal history, his relationship with the victim,
and his lack of remorse do not support the 12-month sentences imposed on each theft
offense are without merit. As this court has previously recognized, it is "[t]he trial court [that],
in imposing a sentence, determines the weight afforded to any particular statutory factors,
mitigating grounds, or other relevant circumstances." State v. Steger, 12th Dist. Butler No.
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CA2016-03-059, 2016-Ohio-7908, ¶ 18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP-
810, 2014-Ohio-3696, ¶ 16. The fact that the trial court chose to weigh various sentencing
factors differently than how appellant would have weighed them does not mean the trial court
erred in imposing appellant's sentence. The trial court clearly considered and balanced the
factors in R.C. 2929.12, and the record supports the trial court's decision to impose 12-month
prison terms on each theft count.
{¶ 19} The record further supports the trial court's imposition of consecutive
sentences. Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Smith,
12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court
must find that (1) the consecutive sentence 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 applies:
(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); Smith at ¶ 7.
{¶ 20} "In order to impose consecutive terms of imprisonment, a trial court is required
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to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry." State v. Bonnell, 140 Ohio St. 3d 209, 2014-
Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these
findings, it must be clear from the record that the court engaged in the required sentencing
analysis and made the requisite findings. Smith at ¶ 8. "A consecutive sentence is contrary
to law where the trial court fails to make the consecutive sentencing findings as required by
R.C. 2929.14(C)(4)." State v. Marshall, 12th Dist. Warren No. CA2013-05-042, 2013-Ohio-
5092, ¶ 8.
{¶ 21} The record shows that the trial court made the requisite findings at the
sentencing hearing and later memorialized the findings in its sentencing entry. Specifically,
at the sentencing hearing, the court stated:
[G]iven the circumstances of this case * * * the presumption as to
concurrent sentences has been rebutted. The Court will find that
consecutive sentences are necessary to adequately protect the
public and to punish the defendant and are not disproportionate
and will find that the defendant's criminal history shows that
consecutive terms are not needed to adequately protect the
public.
{¶ 22} Although the language the trial court used in making the consecutive sentence
findings was not a word-for-word recitation of the language in the statute, such is not
required. State v. Alhashimi, 12th Dist. Nos. CA2016-07-065 and CA2017-07-066, 2017-
Ohio-7658, ¶ 67. "[A]s long as the reviewing court can discern that the trial court engaged in
the correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld." Bonnell, 2014-Ohio-3177 at ¶ 29.
{¶ 23} Here, the trial court engaged in the correct analysis and the record contains
evidence supporting the court's findings under R.C. 2929.14(C)(4). As such, we find no error
in the court's imposition of consecutive sentences. Appellant's first assignment of error is,
therefore, overruled.
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{¶ 24} Assignment of Error No. 2:
{¶ 25} THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE OF
APPELLANT WHEN IT IMPOSED MULTIPLE SENTENCES FOR ALLIED OFFENSES.
{¶ 26} In his second assignment of error, appellant argues the trial court committed
plain error when it failed to merge his two theft convictions as allied offenses of similar
import. Appellant did not raise the issue of merger or argue that the offenses were allied at
the sentencing hearing.
{¶ 27} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio
App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). However, the "failure to raise the issue of allied
offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is
not reversible error unless it affected the outcome of the proceeding and reversal is
necessary to correct a manifest miscarriage of justice." State v. Rogers, 143 Ohio St. 3d 385,
2015-Ohio-2459, ¶ 3.
{¶ 28} In determining whether offenses are allied and should be merged for
sentencing, courts are instructed to consider three separate factors – the conduct, the
animus, and the import. State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, paragraph one of
the syllabus. Offenses do not merge and a defendant may be convicted and sentenced for
multiple offenses if any of the following are true: "(1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3)
the conduct shows that the offenses were committed with separate animus." Id. at paragraph
three of the syllabus and ¶ 25. Two or more offenses of dissimilar import exist "when the
defendant's conduct constitutes offenses involving separate victims or if the harm that results
from each offense is separate and identifiable." Id. at paragraph two of the syllabus.
{¶ 29} "At its heart, the allied-offense analysis is dependent upon the facts of a case
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because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. "The evidence at
trial or during a plea or sentencing hearing will reveal whether the offenses have similar
import." Id. The burden is on the defendant to establish "his entitlement to the protection
provided by R.C. 2941.25 against multiple punishments for a single criminal act." State v.
Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 14.
{¶ 30} Appellant was convicted of two counts of theft in violation of R.C.
2913.02(A)(1), which provides that "[n]o person, with the purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property or
services * * * [w]ithout the consent of the owner or person authorized to give consent."
Where the property stolen is a credit card or the value of the property is more than $1,000
but less than $7,500, the offense is a felony of the fifth degree. R.C. 2913.02(B)(2).
{¶ 31} The record in the present case demonstrates that appellant's two theft offenses
are not allied offenses of similar import as the offenses were committed separately and
involved different conduct. As the state indicated during the plea hearing, the first count of
theft related to appellant stealing M.C.'s credit card, whereas the second count of theft
related to appellant withdrawing money from ATM machines with the stolen credit card. The
first theft offense was completed after appellant took M.C.'s credit card without consent on
April 19, 2018. The second theft offense did not occur until later, when appellant used the
credit card to obtain cash from ATM machines on April 19 and April 20, 2018. As we have
previously recognized, "'[b]ecause one offense was completed before the other offense
occurred, the two offenses were committed separately for purposes of R.C. 2941.25(B)
notwithstanding their proximity in time and that one was committed in order to commit the
other.'" State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 16, quoting
State v. DeWitt, 2d Dist. Montgomery No. 24437, 2012-Ohio-635, ¶ 33. Appellant's theft
offenses are therefore not allied offenses of similar import, and the trial court did not commit
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plain error in not merging the offenses. Appellant's second assignment of error is overruled.
{¶ 32} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.
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