State v. Miller , 2022 Ohio 256 ( 2022 )

[Cite as State v. Miller, 2022-Ohio-256.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-063
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
RUDY MILLER,
Trial Court No. 2020 CR 000757
Defendant-Appellant.
OPINION
Decided: January 31, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (for Plaintiff-Appellee).
Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44060 (for
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Rudy Miller, appeals the consecutive felony sentences imposed
on him. For the following reasons, we affirm.
{¶2} On or about August 9, 2020, Appellant and his co-defendant engaged in a
series of robberies. Appellant and his co-defendant approached homes and Appellant
falsely told the owners that he worked for the utility company and needed to check the
water main break. While his co-defendant’s sole act was to distract the owners, Appellant
entered the homes without permission to look for and take valuable belongings.
{¶3} Police officers were notified of the crimes and arrived at the scene. Shortly
after, a high-speed vehicle chase with Appellant ensued. Appellant abandoned his
vehicle and was arrested.
{¶4} Appellant plead guilty to two counts of burglary, felonies of the second
degree; one count of failure to comply with order or signal of police officer, a felony of the
third degree; and one count of attempted engaging in a pattern of corrupt activity, a felony
of the second degree.
{¶5} At sentencing, Appellant was sentenced to five years imprisonment on
count one of burglary, three years on count two of burglary, twenty-four months on count
three of failure to comply with order or signal of a police officer, and six to nine years on
count four of attempted engaging in a pattern of corrupt activity.
{¶6} The court ordered the sentences to run consecutively, for a total of sixteen
to nineteen years.
{¶7} At the sentencing hearing, and on the sentencing order, the court stated
that it considered the overriding purposes of felony sentencing pursuant to R.C. 2929.11;
the seriousness and recidivism factors pursuant to R.C. 2929.12; and the findings
required for consecutive sentences pursuant to R.C. 2929.14.
{¶8} “APPELLANT’S FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT
ERRED ON APRIL 26, 2021 (AS JOURNALIZED ON APRIL 29, 2021) BECAUSE ITS
SENTENCE WAS CONTRARY TO LAW AND AN ABUSE OF DISCRETION AS A
RESULT OF THE PURPOSES AND PRINCIPLES SET FORTH IN R.C. 2929.11.”
{¶9} R.C. 2929.11 requires “a court that sentences an offender for a felony shall
be guided by the overriding purposes of felony sentencing.”
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{¶10} R.C. 2929.12 grants discretion to a court that imposes a sentence under
this chapter to determine the most effective way to comply with the purposes and
principles of sentencing set forth in section 2929.11.
{¶11} R.C. 2953.08 provides:
The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court
for resentencing. The appellate court's standard for review is
not whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this division
if it clearly and convincingly finds either of the following:
(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,
(b) That the sentence is otherwise contrary to law.
{¶12} However, regarding the appellate court’s review of a felony sentence,
The Supreme Court of Ohio recently clarified in State v.
Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
that contrary to the “dicta” in Marcum, R.C. 29530.08(G)(2)(a)
does not provide a basis for an appellate court to modify or
vacate a sentence based on the lack of support in the record
for the trial court's findings under R.C. 2929.11 and 2929.12.
Id. at ¶ 29; see Marcum at ¶ 23. * * * “Nothing in R.C.
2953.08(G)(2) permits an appellate court to independently
weigh the evidence in the record and substitute its judgment
for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12.” Jones at
¶ 42. Moreover, the Jones majority clarified that the term
“otherwise contrary to law” under R.C. 2953.08(G)(2)(b) does
not encompass an appellate court's conclusion that a
sentence is not supported by the record under R.C. 2929.11
and R.C. 2929.12. Id. at ¶ 32.
State v. Watson, 11th Dist. Ashtabula No. 2020-A-0038, 2021-Ohio-2549,
¶ 20.
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{¶13} Rather, a sentencing court fulfills its duty when it states that it has
considered the factors under R.C. 2929.11 and R.C. 2929.12. State v. DeLuca, 11th Dist.
Lake No. 2020-L-089, 2021-Ohio-1007, ¶ 18.
{¶14} Appellant asserts that this court should find his sentences contrary to law,
as R.C. 2953.08(G)(2) permits an appellate court to review whether the record supports
the findings under R.C. 2929.11 and R.C. 292912. As noted above, State v. Jones
clarifies that appellate courts have no authority to do so. Jones, at ¶ 29.
{¶15} Moreover, Appellant’s sole argument in this assignment of error asserts that
the factors under R.C. 2929.11 and R.C. 2929.12 should have been weighed differently.
Yet, “nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the
evidence in the record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.
{¶16} Here, the sentencing court stated that it considered the purposes and
principles of felony sentencing under R.C. 2929.11 before imposing the sentence. The
court also considered the seriousness and recidivism factors under R.C. 2929.12. Thus,
the sentencing court fulfilled its duty by stating that it considered all factors under R.C.
2929.11 and R.C. 2929.12. DeLuca, supra, at ¶ 18.
{¶17} Appellant’s first assignment of error is without merit.
{¶18} “APPELLANT’S SECOND ASSIGNMENT OF ERROR: THE TRIAL
COURT ERRED ON APRIL 26, 2021 (AS JOURNALIZED ON APRIL 29, 2021)
BECAUSE IT FAILED TO MAKE THE FACTUAL FINDINGS NECESSARY TO IMPOSE
CONSECUTIVE SENTENCES IN ACCORDANCE WITH ORC 2929.14(C)(4).”
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{¶19} Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or
otherwise modify consecutive sentences imposed under R.C. 292914(C)(4) if it clearly
and convincingly finds that: (a) the record does not support the sentencing court’s
findings; or (b) the sentence is otherwise contrary to law.
{¶20} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any 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.
{¶21} In making its findings for consecutive sentences, the sentencing court is
required to engage in the analysis for consecutive sentencing and specify the statutory
criteria warranting its decision. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177,
16 N.E.3d 659, at ¶ 26. While the sentencing court is not required to state exact reasons
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supporting its findings, the record must contain a clear basis upon which a reviewing court
can determine that the sentencing court’s findings for imposing consecutive sentences
are supported by the record. Id. at ¶ 27-28.
{¶22} Although R.C. 2929.14(C)(4) only requires a sentencing court to make three
findings, the court here made all statutory findings. Accordingly, we will analyze each
one.
{¶23} R.C. 2929.14(C)(4) first requires the court to find that consecutive
sentences are necessary to protect the public from future crime or to punish the offender.
At sentencing, the court stated on the record that consecutive sentences are “necessary
to protect the public from future crime and to punish Mr. Miller.” Previously, the court
stated that Appellant’s pre-sentence investigation showed that he had ten active warrants
out for his arrest in three other states for similar crimes. The record also reflected that
Appellant came to the state for the sole reason of committing the burglaries. Seeing as
Appellant had committed this type of crime before and came to Ohio for the purpose of
committing the crimes, we cannot clearly and convincingly find that the record does not
support the sentencing court’s findings that consecutive sentences are necessary to
protect the public from future crime and to punish Appellant.
{¶24} R.C. 2929.12(C)(4) next requires the court to find that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public. The court stated on the record that
consecutive sentences are “certainly not disproportionate to the seriousness of his
conduct and the danger he poses to the public.” On the record, the court considered the
crime serious because Appellant targeted the elderly and the victim statements detailed
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the life-long impact the crimes had on the victims. The court also stated, “further making
this more serious, going back, the Defendant actually came to Ohio for the purpose of
committing these offenses.” Regarding the danger Appellant poses to the public, the
court considered the high-speed car chase, in which Appellant was driving over one
hundred miles per hour. We cannot clearly and convincingly find that the record does not
support the sentencing court’s findings on this requirement.
{¶25} Pursuant to R.C. 2929.14(C)(4)(a), which states that the offender
committed one or more of the multiple offenses while the offender was awaiting trial or
sentencing, the court considered that when the crimes were committed, Appellant was
awaiting sentencing on a conviction in Lucas County. Thus, R.C. 2929.14(C)(4)(a) is
satisfied.
{¶26} The court next made findings pursuant to R.C. 2929.14(C)(4)(b), which
states that 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
committed was so great or unusual that no single prison term for any of the offenses
adequately reflects the seriousness of the offender's conduct. The record reflects a
course of conduct because there were two counts of burglary. The record also reflects
that the harm caused was so great or unusual that no single prison term would adequately
reflect the seriousness of Appellant’s conduct. The evidence the court considered was
the victim impact statements, in which the victims stated that Appellant’s conduct caused
them anxiety and life-long trust issues. We cannot clearly and convincingly find that the
record does not support the sentencing court’s findings on this requirement.
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{¶27} Lastly, the court made findings pursuant to R.C. 2929.14(C)(4)(c), stating
that Appellant’s history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime. To support this finding, the court stated
that Appellant has been committing, and convicted for, burglaries for twelve years and
specifically came to Ohio for the purpose of committing these crimes.
{¶28} Pursuant to R.C. 2929.14(C)(4) the court made all statutory findings to
impose consecutive sentences. This court cannot clearly and convincingly find that the
record does not support the sentencing court’s findings.
{¶29} Appellant’s assignment of error is without merit and we affirm the judgment
of the Lake County Court of Common Pleas.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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