State v. Rose

[Cite as State v. Rose, 2018-Ohio-4469.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-18-08
PLAINTIFF-APPELLEE,
v.
JOSHUA ALAN ROSE, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20162168CRI
Judgment Affirmed
Date of Decision: November 5, 2018
APPEARANCES:
Michael B. Kelley for Appellant
Jason M. Miller for Appellee
Case No. 6-18-08
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Joshua A. Rose (“Rose”) brings this appeal from
the judgment of the Hardin County Court of Common Pleas sentencing him to
consecutive sentences. Rose claims on appeal that the record does not support the
imposition of consecutive sentences. For the reasons set forth below, the judgment
is affirmed.
{¶2} On May 4, 2017, Rose and the State reached a negotiated plea
agreement in which Rose agreed to enter guilty pleas to one count of Grand Theft
and two counts of Burglary. Doc. 37. The agreement also had a joint sentencing
recommendation of consecutive sentences for an aggregate sentence of seven years
in prison. Id. Instead of imposing the agreed sentence, the trial court imposed an
aggregate sentence of 8 ½ years in prison. Id. However, the trial court failed to
make the statutorily required findings to impose consecutive sentences. Rose
appealed from the sentence and this court reversed the sentence and remanded it for
resentencing. State v. Rose, 3d Dist. Hardin No. 6-17-08, 2017-Ohio-8435.
{¶3} On May 24, 2018, the trial court held a new sentencing hearing. Doc.
67 At the hearing, the trial court imposed the same sentence.1 Id. However, this
time, the trial court made the following statements.
1
This Court notes that although the trial court states that it is accepting the jointly recommended sentence, it
did not do so. By accepting the recommendation but having “modified it slightly”, the trial court is actually
rejecting the recommended sentence and imposing its own sentence. Tr. 28. The trial court has every right
to impose its own sentence, thus the incorrect statement would not be grounds for reversal.
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Case No. 6-18-08
Concerning the consecutive nature of sentencing, the Court does
find that consecutive sentencing is necessary to protect the public
from future crime and to punish the offender, and that
consecutive sentences are not disproportionate to the seriousness
of the Defendant’s conduct, and the danger that the offender
poses to the public. The Court further finds very specifically that
two or more of the multiple offenses before the Court were
committed as the [sic] part of one or more courses of conduct, and
that the harm caused by the two or more multiple offenses is so
great or so unusual that no single prison term for any of the
offenses would adequately protect the public, and reflect the
seriousness of the offender’s conduct. The Court further finds
that the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary. The Defendant has been, as
an adult, convicted of a felony of the fourth degree, trespass in a
habitation when a person is present or likely to be present.
Further, the Court finds that as an adult the Defendant has been
convicted of a theft offense, being receiving stolen property as a
misdemeanor. So the Court finds that both of those lead the
Court to believe that your history of criminal conduct does
provide that consecutive sentencing is necessary to protect the
public from future crime by you.
Tr. 30-31. The trial court also ordered that this sentence be served consecutive to a
sentence in a separate case. Doc. 67. Rose appeals from this sentence and raises
the following assignment of error.
[Rose’s] sentence is both contrary to law and an abuse of
discretion as the trial court sentenced [Rose] to consecutive
sentences having stated that it considered all of the required
factors, but having a complete lack of facts to support the claimed
findings under [R.C. 2929.11 and 2929.12], and the appeals court
can clearly and convincingly find that the record does not support
the sentencing court’s findings under [R.C. 2929.13(B), (D)],
[R.C. 2929.14(B)(2)(e), (C)(4)], or [R.C. 2929.20(I)], whichever, if
any, is relevant, and should reduce [Rose’s] sentence accordingly
pursuant to [R.C. 2953.08(G)(2)].
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Case No. 6-18-08
{¶4} The sole issue on appeal is whether the trial court properly imposed
consecutive sentences. This court has previously held that trial courts have full
discretion to impose any prison sentence within the statutory range as long as they
consider the purposes and principles of felony sentencing and the seriousness and
recidivism factors. State v. Golden, 3d Dist. Logan No. 8-17-41, 2018-Ohio-1253,
¶ 3. Rose challenges the trial court’s use of the sentencing factors set forth in R.C.
2929.11 and 2929.12. “Although the trial court is required to consider the factors
set forth in [R.C. 2929.11 and 2929 .12], the trial court is not required to either
discuss the factors on the record or even to state that the factors were considered on
the record as long as the record is sufficient for a court to determine that the
consideration occurred.” State v. Hall, 3d Dist. Auglaize No. 2-10-37, 2011-Ohio-
2609, ¶ 5.
R.C. 2929.11 provides that sentences for a felony shall be guided
by the overriding purposes of felony sentencing: “to protect the
public from future crime by the offender and others and to punish
the offender.” R.C. 2929.11(A). In order to comply with those
purposes and principles, R.C. 2929.12 instructs a trial court to
consider various factors set forth in the statute relating to the
seriousness of the conduct and to the likelihood of the offender's
recidivism. R.C. 2929.12(A) through (D). In addition, a trial court
may consider any other factors that are relevant to achieving the
purposes and principles of sentencing. R.C. 2929.12(E).
State v. Alselami, 3d Dist. Hancock No. 5-11-31, 2012-Ohio-987, ¶ 22.
{¶5} Here, Rose was convicted of one third degree felony and two second
degree felonies. All of the sentences imposed were within the statutory range. See
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Case No. 6-18-08
R.C. 2929.14. The next question then is whether the trial court considered the
statutory factors. The trial court specifically indicated that it had considered the
purposes and principles of sentencing, which are set forth in R.C. 2929.11. Tr. 24.
The trial court noted that there were multiple victims and that the victims were all
elderly. Tr. 25. The trial court also noted that none of the less serious factors were
applicable. Tr. 25. As to recidivism, the trial court noted that Rose had a history of
criminal convictions as an adult, including a prior felony for which Rose had served
community control. Tr. 25. The trial court then determined that Rose had not
expressed genuine remorse for his offenses. Tr. 25-26. Based upon the facts known
to the trial court, the trial judge found that Rose was likely to commit future crimes.
Tr. 26. The trial court clearly considered the statutory factors. There is some
competent, credible evidence in the record to support the conclusions of the trial
court.
{¶6} The next issue that must be addressed is whether the trial court properly
imposed consecutive sentences.
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
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Case No. 6-18-08
sanction imposed pursuant to [R.C. 2929.16, 2929.17, or 2929.18]
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.
R.C. 2929.14(C)(4). “When imposing consecutive sentences, a trial court must state
the required findings as part of the sentencing hearing and by doing so it affords
notice to the offender and to defense counsel.” State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, ¶ 29, 16 N.E.3d 659.
{¶7} A review of the record in this case shows that the trial court made all of
the findings required by the statute at the hearing and again stated them in the journal
entry.
The Court finds that consecutive sentencing is necessary to
protect the public from future crime or to punish the offender,
and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the
offender poses to the public. The Court further finds that 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 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; further, that the offender’s history of
criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.
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Case No. 6-18-08
Doc. 67 at 4. Since the sentences were within the statutory range, the trial court
considered the statutory factors, there was evidence to support the trial court's
conclusions regarding the factors, and the trial court made the statutorily required
findings to impose consecutive sentences, the trial court did not err when imposing
the sentences. The assignment of error is overruled.
{¶8} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Hardin County Court of Common Pleas is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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