State v. Petti

[Cite as State v. Petti, 2012-Ohio-6130.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-045
- vs - :
NICHOLAS C. PETTI, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR
000019.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
David L. Doughten, 4403 St. Clair Avenue, Cleveland, OH 44103-1125 (For
Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Nicholas C. Petti, appeals the judgment of the trial court
sentencing him to 19 years in prison. Appellant claims the trial court erred when it
sentenced him without fully considering the issue of proportionality pursuant to R.C.
2929.11(B). Based on the following, we affirm.
{¶2} Appellant entered a plea of guilty to robbery, a felony of the third degree,
in violation of R.C. 2911.02(A)(3); and aggravated robbery, a felony of the first degree,
in violation of R.C. 2911.01(A)(3), with a repeat violent offender (“RVO”) specification
pursuant to R.C. 2941.149.
{¶3} At his initial sentencing hearing, appellant was sentenced to a prison term
of four years for robbery and nine years for aggravated robbery, to be served
concurrently for a total of nine years. In addition, appellant was ordered to serve a term
of ten years on the RVO specification prior to and consecutive to the above-stated
prison term. Thus, appellant was sentenced to a total prison term of 19 years.
{¶4} Appellant appealed, and this court determined that the trial court erred in
sentencing appellant to less than the maximum prison term for his first-degree felony,
aggravated robbery. Because appellant was sentenced for an RVO specification under
former R.C. 2929.14(D)(2)(b)1, the maximum penalty must be imposed due to the
finding that appellant was an RVO. State v. Petti, 11th Dist. No. 2011-L-100, 2012-
Ohio-1453. ¶13. The matter was remanded for resentencing. Id.{¶5} Appellant was resentenced on April 18, 2012. The trial court sentenced
appellant to four years in prison on robbery and ten years in prison on aggravated
robbery, which the trial court found as a mandatory term of imprisonment pursuant to
R.C. 2929.13. The trial court ran these terms concurrent with each other for a total of
ten years in prison.
{¶6} The trial court also sentenced appellant to an additional term of nine years
in prison, pursuant to former R.C. 2929.14(D)(2)(b), to be served prior to and
consecutive to the above prison term, for a total of 19 years in prison.
{¶7} Appellant filed a notice of appeal and, as his sole assignment of error,
alleges:
1. R.C. 2929.14 was amended, effective September 28, 2012. See R.C. 2929.14(B)(2)(a)(i).
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{¶8} “The trial court erred by sentencing the appellant to nineteen years of
incarceration without fully considering the issue of proportionality pursuant to R.C.
2929.[11](B).”
{¶9} Appellant alleges the trial court erred when it sentenced him without fully
considering the issue of proportionality pursuant to R.C. 2929.11(B), as the trial court
did not sentence him consistent with other individuals sentenced for similar crimes.
{¶10} We have previously explained that in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, the Ohio Supreme Court established a two-step analysis for an
appellate court reviewing a felony sentence. In the first step, we consider whether the
trial court adhered to “all applicable rules and statutes in imposing the sentence.” Id. at
¶26. “As a purely legal question, this is subject to review only to determine whether it is
clearly and convincingly contrary to law, the standard found in R.C. 2953.08(G).” Id.
{¶11} As the Ninth Appellate District observed:
{¶12} Kalish did not specifically provide guidance as to the ‘laws and
rules’ an appellate court must consider to ensure the sentence
clearly and convincingly conforms with Ohio law. The specific
mandate of Kalish is that the sentence fall within the statutory range
for the felony of which a defendant is convicted. State v. Gooden,
9th Dist. No. 24896, 2010-Ohio-1961, ¶48, citing Kalish at ¶15.
{¶13} Next, if the first step is satisfied, we consider whether, in selecting the
actual term of imprisonment within the permissible statutory range, the trial court
abused its discretion. Kalish, supra, ¶26. An abuse of discretion is the trial court’s
“‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler,
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2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th
Ed.2004).
{¶14} Addressing the first step of the Kalish test, appellant entered a plea of
guilty to robbery, a felony of the third degree, in violation of R.C. 2911.02(A)(3), to which
he was sentenced to four years—within the statutory range. Former R.C.
2929.14(A)(3). Additionally, appellant pled guilty to aggravated robbery, a felony of the
first degree, in violation of R.C. 2911.01(A)(3), to which he was sentenced to ten
years—within the statutory maximum. Former R.C. 2929.14(A)(1). As the aggravated
robbery contained an RVO specification pursuant to R.C. 2941.149, appellant was
sentenced to an additional nine years in prison—within the statutory range. Former
R.C. 2929.14(D)(2)(b).
{¶15} Appellant’s sentence was therefore within the statutory range for these
offenses and did not run afoul of sentencing laws existing at the time of his sentencing.
{¶16} We next address the second step of Kalish: whether the sentence
selected by the trial court was an abuse of discretion.
{¶17} While the trial court is required to consider the R.C. 2929.12 factors, “the
court is not required to ‘use specific language or make specific findings on the record in
order to evince the requisite consideration of the applicable seriousness and recidivism
factors (of R.C. 2929.12).’” State v. Webb, 11th Dist. No. 2003-L-078, 2004-Ohio-4198,
¶10, quoting State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302 (2000). In this
case, the trial court, in its judgment entry, stated that “it had considered the purposes of
sentencing under R.C. 2929.11, and has balanced the seriousness and recidivism
factors under R.C. 2929.12.” Further, the sentencing entry noted that appellant’s prison
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sentence “is consistent with the purposes and principles of sentencing set forth in R.C.
2929.11[.]”
{¶18} Despite this, appellant argues the trial court failed to conduct a
proportionality analysis as required by R.C. 2929.11.
{¶19} R.C. 2929.11(B) states:
{¶20} A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth
in division (A) of this section, 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.
{¶21} Although appellant argues that the “better practice would be to require the
sentencing court to make findings explaining why the seemingly disproportionate
sentence was justifiable under R.C. 2929.11,” this is not required by law. This court has
repeatedly held that consistency in sentencing is accomplished by the trial court’s
application of the statutory sentencing guidelines. See, e.g., State v. Swiderski, 11th
Dist. No. 2004-L-112, 2005-Ohio-6705, ¶58; State v. Delmanzo, 11th Dist. No. 2007-L-
218, 2008-Ohio-5856, ¶32 (“sentencing consistency is not derived from the trial court’s
comparison of the current case to prior sentences for similar offenders and similar
offenses”). “Thus, in order to show a sentence is inconsistent, a defendant must show
the trial court failed to properly consider the statutory purposes and factors of felony
sentencing.” Id. Because appellant failed to make such showing, his sentence was
proportionate and consistent.
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{¶22} Further, appellant maintains that his sentence of 19 years is
disproportionate to his conduct; yet, appellant did not receive this term of imprisonment
in relation to his two counts of robbery. As stated, appellant received an additional nine
years because he was an RVO. The trial court explained why the additional nine year
term of imprisonment was warranted, stating:
{¶23} When I take a look at this case we are dealing with mandatory time,
we’re dealing with an individual who is categorically a repeat violent
offender as defined by statute because of the nature of the offenses
here. We have a situation where because of the nature of the
offense, because of the nature of the concern of this Court and this
judge about recidivism I have no choice but to impose what I
perceive to be the maximum sentence which needs to be imposed
in this case also to then back that up with a repeat violent offender
sentence.
{¶24} For the reasons stated in the opinion of this court, appellant’s assignment
of error is without merit. It is the judgment and order of this court that the judgment of
the Lake County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
THOMAS R. WRIGHT, J.,
concur.
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