State v. Graft

[Cite as State v. Graft, 2018-Ohio-2625.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NOS. CA2017-08-122
CA2017-08-123
:
- vs - OPINION
: 7/2/2018
JOSHUA GRAFT, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2016-11-1623
Michael T. Gmoser, Butler County Prosecutor, Lina N. Alkamhawi, Government Services
Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for plaintiff-appellee
Charles M. Conliff, 5145 Pleasant Avenue - Suite 18, P. O. Box 18424, Fairfield, OH 45018-
0424, for defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Joshua Graft, appeals from the decision of the Butler
County Court of Common Pleas sentencing him to serve a total of 36 months in prison after
he pled guilty to two counts of nonsupport of dependents, both fourth-degree felonies. For
the reasons outlined below, we affirm.
{¶ 2} On November 9 and December 7, 2016, the Butler County Grand Jury
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returned two indictments charging Graft with a total of four counts of nonsupport of
dependents, all fourth-degree felonies, after it was alleged Graft had accumulated child
support arrears totaling more than $50,000. After entering a not guilty plea, it is undisputed
Graft failed to appear before the trial court on two separate occasions, each time resulting
in a capias being issued for his arrest. It is also undisputed that Graft had previously been
convicted of nonsupport of dependents in both 2011 and 2012. As a result of his previous
convictions, Graft was placed on community control, which he twice violated, ultimately
resulting in him serving one year in prison.
{¶ 3} On July 13, 2017, Graft plead guilty to two fourth-degree felony counts of
nonsupport of dependents in exchange for the other two counts being dismissed. After
conducting the necessary Crim.R. 11 plea colloquy, the trial court accepted Graft's guilty
plea. Approximately one month later, the trial court held a sentencing hearing, wherein the
trial court specifically stated that it had "considered the purposes and principles of
sentencing" and "the weight of the recidivism and the seriousness factors." The trial court
also noted that it had reviewed Graft's presentence investigation report and noted "a lot of
supervision history," including the above noted community control violations and resulting
one-year prison term. Specifically, as the trial court stated, "[a]nd those cases track
together and you see where [Graft] made zero progress." The trial court then stated:
So all that is a long, roundabout way of saying having
considered the purposes and principles of sentencing and
having weighed the recidivism and the seriousness factors,
[Graft] is not amenable to available community control
sanctions.
{¶ 4} Over Graft's objection, the trial court then sentenced Graft to serve a total of
36 months in prison, the maximum prison term allowed by law when sentencing on two
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fourth-degree felonies.1 The trial court also notified Graft that he would be subject to an
optional three-year postrelease control term. The trial court then stated:
It's very seldom the Court would do something like this, but Mr.
Graft is – it looks like he's done his best over the course of close
to a decade or more of just absolutely thumbing his nose to any
rules or requirements or laws of our community of his obligation
to support the children he's brought into this world to the justice
– well I guess I should say in the court system. Failing to show
up to make his court appearances. As far as this court is
concerned there is nothing left for Mr. Graft. He can't respect
the law and the rules of society and the community then he
needs to be housed in prison for as long as this Court can house
him in prison.
{¶ 5} On August 25, 2017, the trial court issued two judgment of conviction entries
resulting from Graft's convictions, both of which specifically stated that the trial court had
considered the principles and purposes of sentencing under R.C. 2929.11 and balanced
the seriousness and recidivism factors of R.C. 2929.12 prior to issuing its sentencing
decision. Graft now appeals from the trial court's decision sentencing him to serve a total
of 36 months in prison, raising the following single assignment of error for review.
{¶ 6} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY
IMPOSING A PRISON SENTENCE.
{¶ 7} In his single assignment of error, Graft argues the trial court erred by
sentencing him to serve a 36-month prison term, the maximum sentence permitted by law
when sentencing on two fourth-degree felonies, rather than sentencing him to community
control. We disagree.
{¶ 8} As with all felony sentences, we review the trial court's sentencing decision
under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, this court may modify or vacate
1. Pursuant to R.C. 2929.14(A)(4), a fourth-degree felony carries a maximum 18-month prison term.
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the trial court's sentencing decision only if, by clear and convincing evidence, "the record
does not support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law." State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-
Ohio-4921, ¶ 7. A sentence is not clearly and convincingly contrary to law where the trial
court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within
the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100,
2016-Ohio-2890, ¶ 8. This court may therefore "increase, reduce, or otherwise modify a
sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law
or (2) unsupported by the record." State v. Brandenburg, 146 Ohio St. 3d 221, 2016-Ohio-
2970, ¶ 1, citing Marcum at ¶ 7.
{¶ 9} After a full and thorough review of the record, we find no error in the trial
court's sentencing decision for the record firmly establishes Graft's 36-month prison
sentence is not contrary to law or unsupported by the record. As noted above, prior to the
charges levied in this case, Graft had been convicted of nonsupport of dependents in both
2011 and 2012. As a result of these convictions, Graft was placed on community control,
which he twice violated, ultimately resulting in him serving one year in prison. Thereafter,
while the charges in this case were pending, Graft failed to appear before the trial court on
two separate occasions, each time resulting in a capias being issued for his arrest. As the
trial court stated, and we agree, Graft has "done his best over the course of close to a
decade or more of just absolutely thumbing his nose to any rules or requirements or laws
of our community of his obligation to support the children he's brought into this world[.]" We
also agree with the trial court's finding "[Graft] can't respect the law and the rules of society
and the community then he needs to be housed in prison for as long as this Court can house
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him in prison."
{¶ 10} Graft nevertheless argues the record does not support the trial court's
sentencing decision because the record contains "no facts" indicating the trial court
considered the costs of sending him to prison in comparison with the costs associated with
a Community Based Correctional Facility, nor "any statistics" showing the rate of recidivism
for those offenders who are sentenced to prison as opposed to some alternative program
such as the Community Correction Center or the Substance Abuse Mental Illness court
program. Therefore, according to Graft, this matter must be reversed and remanded to the
trial court for it to consider the purposes and principles of sentencing, "and the financial
burden created by the sanctions imposed by the trial court."
{¶ 11} However, while it may be true the record does not contain reference to any
such facts and statistics, it is well-established that the trial court was not required to make
any specific findings to support its decision to sentence Graft to a total of 36 months in
prison, the maximum sentence permitted by law when sentencing on two fourth-degree
felonies. State v. Moore, 12th Dist. Warren No. CA2017-07-110, 2018-Ohio-1778, ¶ 34 (a
trial court is not required to make any specific findings to support its imposition of the
maximum prison sentence). Moreover, when issuing its sentencing decision, "a trial court
is not required to consider each sentencing factor, but rather to exercise its discretion in
determining whether the sentence satisfies the overriding purpose of Ohio's sentencing
structure." Id. at ¶ 35, citing State v. Littleton, 12th Dist. Butler No. CA2016-03-060, 2016-
Ohio-7544, ¶ 12. That is exactly what the trial court did here. "The fact that the trial court
did not expressly cite to R.C. 2929.11 and 2929.12 during the sentencing hearing is
immaterial, considering it specifically cited to both statutes within its sentencing entry."
State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 11. It is therefore
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apparent the trial court properly considered the necessary sentencing statutes.
{¶ 12} In light of the foregoing, because the trial court's decision to sentence Graft to
serve a total of 36 months in prison, the maximum sentence permitted by law when
sentencing on two fourth-degree felonies, is not contrary to law or unsupported by the
record, Graft's single assignment of error lacks merit and is overruled.
{¶ 13} Judgment affirmed.
RINGLAND and PIPER, JJ., concur.
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