State v. Tabor

[Cite as State v. Tabor, 2015-Ohio-5069.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-T-0064
- vs - :
AMBER STAR TABOR, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR
00151.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Scala, 244 Seneca Avenue, N.E., Warren, OH 44481 (For Defendant-
Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Amber Tabor, appeals her sentence arguing that her twelve-
month prison term must be reversed because the trial court’s decision was based upon
an impermissible presumption of jail time. For the following reasons, we affirm.
{¶2} Appellant was indicted on one count of burglary and one count of
receiving stolen property. She and a co-defendant broke into a residential home and
stole various personal items.
{¶3} In return for dismissal of the receiving stolen property charge, appellant
pleaded guilty to the burglary count. The trial court accepted the plea and deferred
sentencing pending a pre-sentence investigation.
{¶4} The victim impact statement of one of the two adults who lived in the
residence was included in the PSI. The victim stated that, since the burglary took place,
her level of nervousness and anxiety has increased, she has difficulty sleeping, and she
is extremely vigilant about safety. She also stated that these problems led her to seek
counseling.
{¶5} In speaking on appellant’s behalf during sentencing, defense counsel
asserted that appellant had a difficult childhood, but that, since committing the burglary,
she married and became a mother. Resultantly, appellant’s life now has stability, and
she was willing to pay restitution to the victims. Counsel argued that if the victims had
been aware of appellant’s history, the tone of their impact statement would not have
been “so harsh” and requested that appellant be placed on probation.
{¶6} The state declined response and thereafter, the trial court stated:
{¶7} “All right. I have reviewed the presentence investigation in this matter and
there are a few minor scrapes as a juvenile. And then another minor scrape as an adult
on this thing. And the issue in this case isn’t always, you know, we take into
consideration problems that Defendants have in cases, that’s taken into consideration.
But this Court’s opinion of home invasions except in the rare instances where it’s a
friend or a relative who doesn’t experience the kind of trauma that many of these people
experience, and I can tell you in this case it’s what I typically hear; that I do not sleep at
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night, they wake up in a panic with some anxiety thinking something else is going to
happen to them and these things don’t usually last a few weeks, it’s sometimes if they’re
lucky it gets better. Sometimes it’s - - anytime they hear that kind of noise it’s a life-long
sentence to the victims in this case as well. And when I take that into consideration,
when people commit their first felony just for a theft offense or a drug offense or
receiving stolen property offense, your argument would be well-founded. But home
invasions and the trauma that they cause, this Court’s opinion is that those are one of
the worst types of crimes one can commit absent the actual physical harm to somebody
else. And for that reason, the Court does not believe that in this case that probation is
appropriate under the circumstances.”
{¶8} The trial court then sentenced appellant to a twelve-month prison term and
ordered her to pay $1,454 in restitution. Appellant appeals raising one assignment of
error for review:
{¶9} “The trial court erred, to the detriment of appellant, by sentencing
appellant under a presumption of prison for her conviction of Burglary (F-3), when no
such presumption exists in Ohio law.”
{¶10} In claiming that the trial court should have sentenced her to a community
control sanction in lieu of a prison term, appellant argues that her sentence is contrary
to law. Citing the trial court’s previously quoted statement at sentencing, she asserts
that the court applied its own personal presumption in favor of prison time when such a
presumption is not recognized under Ohio law. According to appellant, the trial court
concluded that the imposition of a prison term is always justified when a home is
invaded during the commission of a burglary.
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{¶11} As noted above, appellant pleaded guilty to one count of burglary under
R.C. 2911.12(A)(3) a third-degree felony. R.C. 2911.12(D). Accordingly, there is no
presumption of prison time; instead, a trial court is to consider the basic purposes and
principles of sentencing. R.C. 2929.11; 2929.12; and 2929.13(C); See State v.
McCormick, 6th Dist. Lucas Nos. L-13-1147 and L-13-1148, 2014-Ohio-2433, ¶23.
{¶12} As part of its statement, the trial court simply observed that the victim’s
problems are consistent with problems many burglary victims experience. In so doing,
the trial court references frequent problems of burglary victims in general. This,
however, does not mean the trial court operated under a presumption of prison, but
properly examined the overriding considerations of sentencing, including, but not limited
to, impact upon the victim, consistency, and the need to protect the public. See R.C.
2929.11 and 2929.12.
{¶13} An appellate court may modify or vacate a criminal sentence 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;” or “(b) That the sentence is otherwise contrary to
law.” R.C. 2953.08(G)(2). Regarding the second prong, “[a] sentence is not clearly and
convincingly contrary to law where the trial court considers the purposes and principles
of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly applies
postrelease control, and sentences appellant within the permissible statutory range.”
State v. Brown, 12th Dist. Warren No. CA2013-12-115, 2015-Ohio-365, ¶19.
{¶14} The trial court was not required to make findings under the first prong.
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R.C. 2953.08(G)(2). In relation to the second prong, the court considered the governing
purposes and principles of felony sentencing, as required in R.C. 2929.11 and 2929.12.
Furthermore, appellant’s twelve-month term falls within the permissible range for a third-
degree felony. See R.C. 2929.14(A)(3)(b). Therefore, the trial court did not commit
error in imposing appellant’s sentence.
{¶15} Accordingly, the judgment of the Trumbull County Court of Common Pleas
is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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