State v. Glenn

[Cite as State v. Glenn, 2014-Ohio-4084.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100726
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TALBERT GLENN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-572653-A
BEFORE: Stewart, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: September 18, 2014
ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 218
Northfield, OH 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Nicole Ellis
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} In March 2013, defendant-appellant Talbert Glenn was charged with
aggravated burglary — a first-degree felony, and burglary — a second-degree felony, in
connection with entering the home of a family while he was intoxicated. Glenn pleaded
guilty to attempted burglary, a third-degree felony, and the trial court sentenced him to 36
months in prison. On appeal in his sole assignment of error, Glenn argues that the trial
court erred by imposing the maximum sentence and failing to make the required findings
under R.C. 2929.11 and 2929.12. Finding no merit to Glenn’s arguments, we affirm the
trial court’s judgment.
{¶2} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). This provision states in pertinent part:
The court hearing an appeal * * * shall review the record, including the
findings underlying the sentence or modification given by the sentencing
court.
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.
{¶3} Generally, a defendant’s prison sentence is not contrary to law when the
sentence is within the permissible range, and the court’s journal entry states that it
“considered all required factors of the law” and “finds that prison is consistent with the
purposes of R.C. 2929.11.” State v. May, 8th Dist. Cuyahoga No. 99064,
2013-Ohio-2697, ¶ 16. Any sentence imposed within that range, after considering all
the sentencing factors, is presumptively valid. State v. Collier, 8th Dist. Cuyahoga No.
95572, 2011-Ohio-2791, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470.
{¶4} Under R.C. 2929.14(A)(3)(b), the prison term that the court may impose for a
third-degree felony conviction is 9, 12, 18, 24, 30, or 36-months. Glenn’s sentence is
within the statutory range. Therefore, his sentence is presumptively valid.
{¶5} R.C. 2929.11 states that 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. See
R.C. 2929.11(A). R.C. 2929.12 gives the court discretion to determine the most
effective way to comply with these overriding purposes when imposing a sentence.
However, in exercising this discretion, the court must consider factors relating to the
seriousness of the offender’s conduct and factors relating to the likelihood of recidivism,
along with any other factors that are relevant to achieving the purposes and principles of
sentencing.
{¶6} Glenn asserts that when the court sentenced him, it did not consider the
principles and purposes of sentencing or the seriousness and recidivism factors.
Specifically, he argues that the court failed to consider the level of seriousness of his
crime and did not note that the sentence imposed was necessary to protect the public from
future crimes. Glenn further argues that the court failed to find that the sentence
imposed was not disproportionate to the crime committed and that the court did not
specify why community control sanctions were not appropriate under the circumstances.
Glenn believes that the court should have considered as factors mitigating his conduct his
mental health and substance abuse issues. Finally, Glenn states that the trial court
should have considered the fact that he has the support of family members who would
help him manage his substance abuse issues.
{¶7} At sentencing, the court stated, “[a]ll right. The court has considered all this
information, all the principles and purposes of felony sentencing, all the appropriate
recidivism and seriousness factors.” This statement is also reflected in the court’s
journal entry. We have found that the trial court satisfies its duty under the statutes by
indicating that it has considered the relevant sentencing factors. State v. Saunders, 8th
Dist. Cuyahoga No. 98379, 2013-Ohio-490, ¶ 4. The court need not go through each
factor on the record. The court must only acknowledge that it has complied with its
statutory duty to consider the factors and no further elaboration is required. State v.
Pickens, 8th Dist. Cuyahoga No. 89658, 2008-Ohio-1407, ¶ 6.
{¶8} What Glenn is actually arguing is that the court did not give enough weight
to mitigating factors such as his drug and alcohol abuse prior to imposing sentence. This
argument fails because the trial court is not obligated to give any particular weight or
consideration to any sentencing factor. State v. Wright, 8th Dist. Cuyahoga No. 100433,
2014-Ohio-3230,  18.
{¶9} In Wright, the defendant argued that his sentence was improper because the
trial court failed to consider his impaired functioning and substance abuse issues at
sentencing. We rejected this argument and affirmed the sentence finding that an
argument that the court weighed the various sentencing factors differently than the
manner urged by the defendant was insufficient to support a finding that the sentence was
improper. Id.{¶10} Furthermore, Glenn’s argument that the court did not make the statutory
considerations prior to sentencing is belied by the record. The court reviewed his
presentence investigation report and heard from Glenn’s mother and grandmother. They
spoke to the court about Glenn’s mental health and substance abuse and asked for
leniency. The court also heard from one of the victims impacted by Glenn’s conduct.
She told the court that her son has nightmares about the incident and that certain items in
her home that were damaged cannot be replaced. The victim also told the court that she
had been receiving threatening telephone calls since the incident.
{¶11} The court noted that Glenn accepted responsibility for his actions but
determined that he was not amenable to community control sanctions. Furthermore, the
court stated that it would consider judicial release after the appropriate statutory time of
incarceration if Glenn was on good behavior while in prison and took advantage of the
rehabilitation programs offered.
{¶12} The record shows that the court fulfilled its obligations under both R.C.
2929.11 and 2929.12. Glenn’s sentence is, therefore, not contrary to law.
{¶13} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR