State v. Milner

[Cite as State v. Milner, 2015-Ohio-5005.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
: Case No. 15CA3
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
SCOTT A. MILNER, :
:
Defendant-Appellant. : Released: 11/24/15
_____________________________________________________________
APPEARANCES:
Brian A. Smith, Barberton, Ohio, for Appellant.
James W. Schneider, Washington County Prosecuting Attorney, and Alison
L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________
McFarland, A.J.
{¶1} Scott Milner appeals his conviction in the Washington County
Court of Common Pleas after he pled guilty to robbery, a violation of R.C.
2911.02(A)(3)&(B), a felony of the third degree, and disrupting public
service, a violation of R.C. 2909.04(A)(1)&(C), a felony of the fourth
degree. Appellant contends: (1) the record does not support a maximum
sentence on each count; and, (2) the record does not support the trial court’s
imposition of consecutive sentences. Upon review, we find Appellant’s
maximum sentence on each count was not contrary to law, nor was the
Washington App. No. 15CA3 2
sentence contrary to law because the trial judge imposed a consecutive
sentence. Accordingly, we overrule both assignments of error and affirm the
judgment of the trial court.
FACTS
{¶2} On September 25, 2014, Appellant was indicted as follows:
1) One count of aggravated robbery, a felony of the first degree
in violation of R.C. 2911.01(A)(1)(2)&(C);
2) One count of robbery, a felony of the second degree in
violation of R.C. 2911.02(A)(1)(2)&(B);
3) One count of robbery, a felony of the third degree in
violation of R.C. 2911.02(A)(3)&(B); and,
4) One count of disrupting public services, a felony of the
fourth degree in violation of R.C. 2909.04(A)(1)&(C).
{¶3} The indictments arose from Appellant’s actions on August 29,
2014 when he entered a liquor store in Marietta, Ohio, threatened two
female store employees with what they believed to be a handgun, and stole
approximately $2,000.00 cash and cigarettes. During the course of his
actions, which were captured on the store’s surveillance video, Appellant
grabbed one of the employees’ cell phone, threw it on the ground and
stomped on it. Appellant fled the scene but was apprehended within a few
hours.
Washington App. No. 15CA3 3
{¶4} Appellant eventually reached a plea agreement with the State of
Ohio wherein the State would dismiss counts one and two if Appellant pled
guilty to count three, third-degree robbery, and count four, disrupting public
services. Appellant changed his former pleas of not guilty on November 4,
2014. On December 17, 2014, the trial court sentenced Appellant to 36
months of incarceration on the robbery charge and 18 months of
incarceration on the disrupting public services’ charge. These were the
maximum sentences on each charge. The trial court also sentenced
Appellant to serve the terms consecutively.
{¶5} This timely appeal followed. Where relevant, additional facts
are set forth below.
ASSIGNMENTS OF ERROR
“I. THE RECORD DOES NOT SUPPORT THE TRIAL
COURT’S IMPOSITION OF MAXIMUM SENTENCES, ON
EACH COUNT, UPON APPELLANT.
“II. THE RECORD DOES NOT SUPPORT THE TRIAL
COURT’S IMPOSITION OF CONSECUTIVE SENTENCES
UPON APPELLANT.”
A. STANDARD OF REVIEW FOR FELONY SENTENCES
{¶6} In State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, we recently
held that when reviewing felony sentences, we apply the standard of review
set forth in R.C. 2953.08(G)(2). State v. Pulliam, 4th Dist. Scioto No.
Washington App. No. 15CA3 4
14CA3609, 2015-Ohio-759, ¶ 5; Brewer at ¶ 33 (“we join the growing
number of appellate districts that have abandoned the Kalish plurality's two-
step abuse-of-discretion standard of review; when the General Assembly
reenacted R.C. 2953.08(G)(2), it expressly stated ‘[t]he appellate court's
standard of review is not whether the sentencing court abused its
discretion’ ”). See also State v. Graham, 4th Dist. Highland No. 13CA11,
2014-Ohio-3149, ¶ 31. 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 that “the record
does not support the sentencing court's findings” under the specified
statutory provisions or “the sentence is otherwise contrary to law.” Pulliam,
supra.
B. LEGAL ANALYSIS
1. Assignment of Error One - Maximum Sentences
{¶7} In analyzing whether a sentence is contrary to law, “[t]he only
specific guideline is that the sentence must be within the statutory range[.]”
State v. Sims, 4th Dist. Gallia No. 10CA17, 2012-Ohio-238, quoting State v.
Welch, 4th Dist. Washington No. 08CA29, 2009-Ohio-2655, ¶ 7, quoting
State v. Ross, 4th Dist. Adams No. 08CA872, 2009-Ohio-877, ¶ 10.
Maximum sentences do not require specific findings. State v. Losey, 4th
Washington App. No. 15CA3 5
Dist. Washington No. 14CA11, 2015-Ohio-285, ¶ 14, citing State v. Lister,
4th Dist. Pickaway No. 13CA15, 2014-Ohio-1405, ¶ 10, citing State v.
White, 2013-Ohio-4225, 997 N.E.2d 629, (1st Dist.), ¶ 7. Although trial
courts have full discretion to impose any term of imprisonment within the
statutory range, they must consider the sentencing purposes in R.C. 2929.11
and the guidelines contained in R.C. 2929.12. Losey, supra; Lister, supra, at
¶ 14. H.B. 86 amended R.C. 2929.11, which states:
“(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others and to
punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To
achieve those purposes, the sentencing court shall consider the
need for incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or
both.” Losey, supra, at ¶ 15.
{¶8} R.C. 2929.12, seriousness of crime and recidivism, also
provides a non-exhaustive list of factors a trial court must consider when
determining the seriousness of the offense and the likelihood that the
offender will commit future offenses. Lister, supra, at ¶ 15.
{¶9} Appellant was sentenced to 36 months on count three, robbery,
R.C. 2911.02(A)(3). Pursuant to R.C. 2911.02(B), robbery is a felony of the
third degree. Further, pursuant to R.C. 2929.14(A)(3)(b), the sentence for a
Washington App. No. 15CA3 6
third degree felony is 36 months. On the fourth degree felony, disrupting
public services, Appellant was sentenced to 18 months, pursuant to R.C.
2929.14(A)(4). These sentences, although maximum, were in the statutory
range.
{¶10} In addition to Appellant’s maximum sentences being within the
statutory range, the trial court stated:
“This Court has considered the record, the oral statements made
in open court this date, the victim statement and the pre-
sentence investigation report and the principles and purposes of
sentencing, set forth in 2929.11 and the seriousness and
recidivism factors, set forth in 2929.12 of the Ohio Revised
Code.”
{¶11} As such, the record reveals that the trial court considered the
principles and purposes under R.C. 2929.11. The trial court further stated:
“Now, as far as factors that the Court is now required to review.
Factors. Making recidivism more likely, it’s, according to the
State Legislature, this gentleman has a prior history of juvenile
and adult convictions. He’s failed to respond in the past to
sanctions imposed for criminal convictions. There is a
demonstrated pattern of alcohol abuse related to this offense.
Those making recidivism more likely. Making recidivism less
likely, none of those are present.
***
Seriousness factors. The victim did suffer economic harm as a
result of it, and continues to, per his statements this morning.
Less serious, none of those are present.
***
Washington App. No. 15CA3 7
Violence factors, there was an actual threat of physical harm.
* * * So there was a threat. He has served prior prison terms.
***
Now I’m required to look at his prior record. Mr. Milner, I did
some math on this, which I usually- - it was so astounding to
me, your record. You’ve been an adult, if I compute this right,
for 31 years. In 31 years as an adult, if I compute this right, to
garner 46 criminal convictions, seven of which are felonies.
You’ve also, in addition to that, had two probation violations
and four contempts of court.”
{¶12} At this point, the trial court went through Appellant’s record of
convictions, chronologically. The trial court noted a pattern of alcohol abuse
was a significant factor over the years. When the judge concluded, he
further stated:
“[T]he Court makes the finding under 2929.11 that Mr. Milner
is not amenable to community control and prison is consistent
with the purposes of 2929.11. He has a prior felony conviction,
so that overrides the presumption for community control.
***
So, he is sentenced on the Count 3, the third degree felony,
robbery, to 36 months. He is sentenced on the disrupting public
service, fourth degree felony, to 18 months. * * * These are the
maximum sentences.”
{¶13} The record further reflects the trial court balanced the
seriousness and recidivism factors under R.C. 2929.12, and provided some
reasoning for finding that maximum sentences were appropriate.
{¶14} Here, the trial court imposed a sentence within the appropriate
Washington App. No. 15CA3 8
definite prison term pursuant to R.C. 2929.14. The trial court also
considered the principles and purposes of felony sentencing under R.C.
2929.11, and the seriousness and recidivism factors under R.C. 2929.12.
The record supports the imposition of a maximum sentence on each count.
Pertaining to Appellant’s maximum sentence, we find that the trial court
complied with all applicable rules and statutes. Therefore, the trial court's
sentence is not clearly and convincingly contrary to law.
2. Assignment of Error Two - Consecutive sentences
{¶15} R.C. 2929.14(C)(4) sets forth certain findings that a trial court
must make prior to imposing consecutive sentences. Pulliam, supra, at ¶ 6,
citing State v. Black, 4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶¶ 56-
57. That is, under Ohio law, unless the sentencing court makes the required
findings set forth in R.C. 2929.14(C)(4), there is a presumption that
sentences are to run concurrently. State v. Bever, 4th Dist. Washington No.
13CA21, 2014-Ohio-600, ¶ 15; citing Black at ¶ 56; R.C. 2929.41(A).
Under R.C. 2929.14(C)(4), a sentencing court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences.
Bever at ¶ 16; Black, at ¶ 57; State v. Clay, 4th Dist. Lawrence No. 11CA23,
2013-Ohio-4649, ¶ 64; State v. Howze, 10th Dist. Franklin Nos. 13AP-386
& 13AP-387, 2013-Ohio-4800, ¶ 18. Specifically, the sentencing court must
Washington App. No. 15CA3 9
find that (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.” Bever, supra, at ¶ 16; R.C.
2929.14(C)(4).
{¶16} While the sentencing court is required to make these findings,
it is not required to give reasons explaining the findings. Pulliam, supra, at
7; Bever, supra, at ¶ 16; Howze at ¶ 18; State v. Stamper, 12th Dist. Butler
No. CA2012-08-166, 2013-Ohio-5669, ¶ 23. R.C. 2929.14 clearly states the
trial court may impose a consecutive sentence if it “finds the statutorily
enumerated factors.” State v. Williams, 5th Dist. Licking No. 11-CA-115,
2012-Ohio-3211, ¶ 47. Furthermore, the sentencing court is not required to
Washington App. No. 15CA3 10
recite any “magic” or “talismanic words” when imposing consecutive
sentences. Bever, supra, at ¶ 17; Clay at ¶ 64; Howze at ¶ 18; Stamper at
¶ 23. However, it must be clear from the record that the sentencing court
actually made the required statutory findings. Bever at ¶ 17; Clay at ¶ 64;
Howze at ¶ 18; Stamper at ¶ 23. A failure to make the findings required by
R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law. Bever at
¶ 17; Stamper at ¶ 23; State v. Nia, 8th Dist. Cuyahoga No. 99387, 2013-
Ohio-5424, ¶ 22. The findings required by the statute must be separate and
distinct findings; in addition to any findings relating to the purposes and
goals of criminal sentencing. Bever at ¶ 17; Nia at ¶ 22.
{¶17} As recited above, the trial court stated at sentencing:
“I also believe that consecutive sentences are necessary to
protect the public from future crime and to punish Mr. Milner.
They’re not disproportionate to the seriousness of his conduct
or the danger he poses to the public. His history of criminal
conduct demonstrates that consecutive sentences are necessary
to protect the public from future crime by him.”
{¶18} The sentencing transcript reflects that the trial court explicitly
made the required findings for consecutive sentences pursuant to R.C.
2929.14(C)(4)(1) and 2929.14(C)(3)(a). The record here supports the
imposition of consecutive sentences. Appellant’s consecutive sentence is
also not clearly and convincingly contrary to law.
3. Conclusion
Washington App. No. 15CA3 11
{¶19} When sentencing an offender, each case stands on its own
unique facts. State v. McClain, 4th Dist. Pickaway No. 13CA17, 2014-Ohio-
4192, ¶ 38, citing Lister, supra, at ¶ 13 citing State v. Stamper, 12th Dist.
Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 15, quoting State v.
Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 58. Here,
the record reflects the trial court considered all the factors required of the
applicable statutes. In particular, the trial court discussed at length
Appellant’s pattern of alcohol abuse, the fear of physical threat experienced
by the victims in the case, and Appellant’s lengthy prior record. For the
foregoing reasons, we find the record supports Appellant’s maximum and
consecutive sentences. As such, we overrule both assignments of error and
affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Washington App. No. 15CA3 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington 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.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Matthew W. McFarland,
Administrative 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.