State v. Terry

[Cite as State v. Terry, 2017-Ohio-7266.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-65
:
v. : T.C. NO. 15-CR-640
:
RICKY TERRY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of August, 2017.
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MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JAMES S. SWEENEY, Atty. Reg. No. 0086402, 341 S. Third Street, Suite 100, Columbus,
Ohio 43215
Attorney for Defendant-Appellant
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TUCKER, J.
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{¶ 1} Ricky Terry appeals from a judgment of the Clark County Court of Common
Pleas, which found him guilty of numerous offenses on his guilty pleas and sentenced
him to maximum, consecutive sentences totaling 27 years. For the following reasons,
the judgment of the trial court will be affirmed.
Procedural History
{¶ 2} On December 8, 2015, Terry and several other men were indicted on
numerous offenses, which were alleged to have occurred between April 2007 and
December 2015. All of the men were charged with engaging in a pattern of corrupt
activity, in violation of R.C. 2923.32(A)(1), a felony of the second degree. Terry was also
charged with six counts of breaking and entering, eight counts of theft of a motor vehicle,
two counts of attempted theft of a motor vehicle, two counts of theft, and three counts of
safecracking.1 The indictment included a forfeiture specification on each count.
{¶ 3} On August 26, 2016, Terry pled guilty to the following charges: engaging in
a pattern of corrupt activity, seven counts of theft of a motor vehicle (felonies of the fourth
degree), one count of attempted theft of a motor vehicle (a felony of the fifth degree), two
counts of theft (felonies of the fourth and fifth degree, respectively), and five counts of
breaking and entering (felonies of the fifth degree). Terry also admitted to the forfeiture
specifications and agreed to forfeit the property in question. The State dismissed six
additional counts against Terry, which were fourth and fifth degree felonies, and agreed
to “recommend and work to secure an agreement with Franklin County not to pursue
prosecution” of 37 other charges against him that had not yet been filed. The State also
1 The predicate offenses involving Terry all happened in 2015.
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agreed that Terry would not be fined or ordered to pay restitution, and that any sentence
in this case would be concurrent to the sentence Terry was already serving.
{¶ 4} At the plea hearing, the prosecutor stated that seven people had
participated in the theft ring that led to the charge of engaging in a pattern of corrupt
activity; the criminal acts committed by the group included, but were not limited to, theft
of automobiles, breaking and entering into outbuildings and barns to steal tools and
equipment, burglary of an attached garage, “smash and grab” at a convenience store,
thefts of ATMs, vandalism, failure to comply, and receiving stolen property. The
prosecutor then detailed the specific counts against Terry, which involved numerous
thefts and attempted thefts of vehicles, crashing some of those vehicles into buildings to
effectuate thefts, including thefts of ATMs, tools, generators, tires, an “Arctic Cat” motor
vehicle, trailers, and other equipment, and breaking into garages and businesses. The
trial court ordered a presentence investigation.
{¶ 5} At the sentencing hearing, defense counsel stated that Terry had been
“plagued in his life with some drug and alcohol problems. That’s what the majority of his
prior criminal offenses occur from.” Defense counsel also stated that Terry was
remorseful and accepted responsibility for what he had done. Counsel asked the court
to consider what Terry’s actions had done to his life and what he was “gonna have to live
with,” including the fact that his son and wife were already in prison. Counsel also asked
that Terry’s age, 50, be considered, so that his family could have a chance at reunification
in the future.
{¶ 6} The prosecutor stated that the Franklin County case involving Terry had
involved similar facts to the Clark County case (“stealing truck tires, motor vehicles, work
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tools, safes, and other property”) and that Franklin County officials had agreed not to go
forward on their charges in light of Terry’s plea. The prosecutor described the Franklin
County cases as “very good prosecutable cases,” including some in which Terry was
caught on video tape. No additional information about these charges was presented at
the hearing or in the PSI.
{¶ 7} The prosecutor also stated that Terry’s criminal history dated back to
juvenile offenses with “very little gaps in time,” and that some of the gaps were likely
attributable to incarceration. The PSI’s statement outlining Terry’s criminal record
corroborated this statement. The prosecutor and the PSI stated that Terry’s prior
convictions included numerous convictions for breaking and entering, possession of
criminal tools, receiving stolen property, vandalism, tampering with coin machines,
burglary, and theft, as well as one count of arson. Terry has been sentenced to prison
at least 14 times, and has received suspended sentences and/or jail terms several
additional times. Although some of his prison sentences had overlapped, Terry had
spent a significant portion of his adult life in prison.
{¶ 8} The prosecutor described this as “an incredible pattern of criminal conduct
lasting this defendant’s entire life thus far,” and commented that his reported “self-
employment” seemed to have consisted of the criminal enterprise, which was ”the only
job he’s ever had.” Terry had the longest record of all the defendants in the case. The
prosecutor also stated that the reason Terry’s son is in prison is that Terry taught his son
-- and others – how to engage in criminal activity. The prosecutor disputed defense
counsel’s assertion that Terry was remorseful; the prosecutor stated that there was
“absolutely no expression of remorse” and noted that, according to the PSI, Terry did not
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want to make a statement acknowledging his involvement in the instant offense. The
PSI also indicated that Terry’s risk level was “high.”
{¶ 9} The trial court, when imposing the sentence, noted that seventeen prison
sentences had previously been imposed on Terry and that, although some were
simultaneous, he had been to prison on twelve occasions. The court found that
consecutive sentences were necessary to protect the public from future crime and to
punish Terry, that consecutive sentences were not disproportionate to the seriousness of
his crimes or the danger he posed to the public, and that “the aggregate harm caused”
by his offenses “was so great or unusual that no single prison term for any of the offenses”
adequately reflected the seriousness of Terry’s conduct. The court imposed the
maximum sentence on each offense: eight years for engaging in a pattern of corrupt
activity, 18 months on each fourth-degree felony, and 12 months on each fifth-degree
felony. The trial court also ordered that the sentences be served consecutively to one
another but concurrently with the sentence in another case, in accordance with the plea
agreement, for a total sentence of 27 years.
{¶ 10} Terry appeals, raising one assignment of error, which asserts that his
sentence was not supported by the record and was contrary to law. His arguments
question both the individual sentences and the consecutive sentence.
Sentencing Considerations
{¶ 11} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
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court must consider the statutory criteria that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App. 3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 12} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes 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.” R.C. 2929.11(A). The court must “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.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
{¶ 13} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense. R.C. 2929.12(C) sets
forth four factors indicating that an offender’s conduct is less serious than conduct
normally constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that
trial courts are to consider regarding the offender’s likelihood of committing future crimes.
Finally, R.C. 2929.12(F) requires the sentencing court to consider the offender’s military
service record.
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{¶ 14} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive
sentences if it determines that: (1) 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 or more of the following three findings are
satisfied:
(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.
{¶ 15} In imposing consecutive sentences, the trial court must make the statutory
findings and incorporate them into its sentencing entry, but the trial court is not required
to state reasons to support its findings. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 37.
{¶ 16} The standard set forth in R.C. 2953.08(G)(2) applies to all challenges
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involving sentencing. Under that standard, we may vacate or modify a sentence only if
we find, by clear and convincing evidence, that the sentence is contrary to law or that the
record does not support the trial court’s findings under certain statutes (including the
findings required for consecutive sentences). State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. While acknowledging that some sentences do
not require any of the findings referenced in R.C. 2953.08(G)(2), the Ohio Supreme Court
also reasoned:
* * * [I]t is fully consistent for appellate courts to review those sentences that
are imposed solely after consideration of the factors in R.C. 2929.11 and
2929.12 under a standard that is equally deferential to the sentencing court.
That is, an appellate court may vacate or modify any sentence that is not
clearly and convincingly contrary to law only if the appellate court finds by
clear and convincing evidence that the record does not support the
sentence.
Marcum at ¶ 23. However, if an appellate court finds by clear and convincing evidence
that the record does not support the sentence under R.C. 2929.11 and 2929.12, the
sentence is contrary to law, and we have the authority to review it under R.C.
2953.08(A)(4). State v. Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2016-
Ohio-7702, ¶ 108.
Terry’s Sentence
{¶ 17} Terry contends that the sentence of 27 years is not supported by the record
and is contrary to law.
{¶ 18} Each sentence is within the authorized statutory range, and the trial court
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expressly stated in its judgment entry that it had considered the statutory principles and
purposes of sentencing as well as the statutory seriousness and recidivism factors.
Moreover, the trial court’s imposition of consecutive sentences was not contrary to law,
because the trial court made the consecutive-sentence findings mandated by R.C.
2929.14(C)(4). It did not state reasons in support of those findings, but it was not
required to do so. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶ 19} When a sentencing court makes its “objective” findings, they include, at
least implicitly, those listed in R.C. 2929.11, which require that a felony sentence:
(1) be reasonably calculated to achieve the protection of the public from future
crimes by the offender; and
(2) punish the offender; and
(3) use the minimum sanctions that the court determines will accomplish those
purposes without imposing an unnecessary burden on state or local
resources; and,
(4) be commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact on the victim; and,
(5) be consistent with sentences imposed for similar crimes by similar
offenses.
{¶ 20} The ultimate questions for any sentence reviewed by appellate courts are
whether:
(1) as a matter of law, the sentence is contrary to law; and
(2) as a matter of fact, the findings supporting the sentence clearly and
convincingly are not supported by the record.
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{¶ 21} In this case, the question is whether the record clearly and convincingly
does not support a finding that a 27-year sentence for a non-violent offender, is necessary
to punish Terry, using the minimum sanction to accomplish that purpose without imposing
an unnecessary burden on state resources, and is commensurate with the fourth and fifth
degree felonies that he committed. We cannot find upon this record including,
importantly, Terry’s criminal history, that these implicit findings are clearly and
convincingly not supported by the record in this case.
{¶ 22} The assignment of error is overruled.
{¶ 23} The judgment of the trial court will be affirmed.
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HALL, P.J., concurs.
FROELICH, J., dissenting:
{¶ 24} I concur with the majority’s analysis, but I would conclude that the findings
are clearly and convincingly not supported by the record and would reverse and remand.
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Copies mailed to:
Megan M. Farley
James S. Sweeney
Hon. Douglas M. Rastatter