State v. Lewis

[Cite as State v. Lewis, 2012-Ohio-4806.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 12-COA-006
:
:
ANNE M. LEWIS : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Ashland County
Court of Common Pleas Case No.
08-CRI-084
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 15, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS DAVID R. STIMPERT
Ashland County Prosecutor 10 East Main Street
Ashland, Ohio 44805
BY: DANIEL J. PETRICINI
Assistant Ashland County Prosecutor
110 Cottage Street, Third Floor
Ashland, Ohio 44805
[Cite as State v. Lewis, 2012-Ohio-4806.]
Edwards, J.
{¶1} Defendant-appellant, Anne Lewis, appeals her sentence from the Ashland
County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 1, 2008, the Ashland County Grand Jury indicted appellant on one
count of operating a vehicle under the influence of alcohol and/or drugs in violation of
R.C. 4511.19(A)(1)(a), a felony of the third degree, and one count of operating a vehicle
under the influence of alcohol and/or drugs in violation of R.C. 4511.19(A)(1)(d), a
felony of the third degree. The indictment indicated that appellant had a prior conviction
out of Cuyahoga County for operating a motor vehicle while under the influence of drugs
or alcohol. At her arraignment on September 19, 2008, appellant entered a plea of not
guilty to the charges.
{¶3} Subsequently, on December 15, 2008, appellant withdrew her former not
guilty plea and pleaded guilty to the lesser included offense of attempted operating a
vehicle while under the influence of alcohol and/or drugs in violation of R.C. 2923.02(A)
and 4511.19(A)(1)(a), a felony of the fourth degree. The remaining charge was
dismissed. Pursuant to a Judgment Entry filed on February 5, 2009, appellant was
sentenced to 180 days in jail and placed on community control for a period of two years
under specified terms and conditions.
{¶4} On July 29, 2010, a complaint was filed against appellant alleging that she
had violated the terms and conditions of her community control by: (1) being
discharged from the Women's Center of Greater Cleveland for failing to report to group
and testing positive for alcohol on two occasions; (2) using alcohol on two occasions;
Ashland County App. Case No. 12-COA-006 3
and (3) failing to complete 80 hours of community service work. On November 30, 2011,
a second document was filed alleging that appellant had violated the terms and
conditions of her community control by being convicted, on or about November 16,
2011, of attempted driving under the influence of drugs and/or alcohol in Cuyahoga
County Court of Common Pleas. Thereafter, on December 5, 2011, appellant entered
pleas of admission to all of the community control violations and was found to have
violated her community control orders.
{¶5} A sanctioning hearing was held on December 29, 2011. As memorialized
in a Judgment Entry filed on January 4, 2012, the trial court found that appellant was not
amenable to further community control and imposed the sixteen (16) month prison
sentence previously set by the court. The trial court ordered that appellant would
receive credit for time served.
{¶6} Appellant now raises the following assignments of error on appeal:
{¶7} “I. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS
OF ASHLAND COUNTY, OHIO, WAS CLEARLY AND CONVINCINGLY CONTRARY
TO LAW AND/OR AN ABUSE OF THE TRIAL COURT’S DISCRETION.
{¶8} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS
OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE
AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF THE OHIO
REVISED CODE SECTION 2929.13(A).”
I
{¶9} Appellant, in her first assignment of error, argues that the sentence
imposed by the trial court was contrary to law and an abuse of discretion. We disagree.
Ashland County App. Case No. 12-COA-006 4
{¶10} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912, 896 N.E.2d 124 set forth a two step process for examining felony
sentences. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first step “is
satisfied,” the second step requires the trial court's decision be “reviewed under an
abuse-of-discretion standard.” Id.{¶11} The relevant sentencing law is now controlled by the Ohio Supreme
Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470,
i.e. “* * * trial courts have full discretion to impose a prison sentence within the statutory
range and are no longer required to make findings or give their reasons for imposing
maximum, consecutive, or more than the minimum sentences.” Id. at ¶ 100.
{¶12} The record herein reflects that appellant was sentenced to a prison term of
sixteen (16) months for a charge of attempted driving under the influence of alcohol, a
felony of the fourth degree. The sentence was within the statutory guidelines and
parameters. The record further reflects, and appellant does not challenge, that the trial
court considered the purposes and principles of sentencing and the seriousness and
recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised
Code, and advised appellant regarding post release control.
{¶13} Having found that appellant's sentence was not contrary to law, we must
next determine whether or not the trial court abused its discretion in sentencing
appellant. An abuse of discretion means more than an error of judgment; it implies that
Ashland County App. Case No. 12-COA-006 5
the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62
Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶14} Appellant specifically contends that her sentence was an abuse of
discretion because she expressed remorse for her community control violations, she
accepted responsibility for having committed the same, and she expressed a strong
desire to overcome her addiction to alcohol.
{¶15} However, as is stated above, while on community control for attempted
driving under the influence of alcohol in the case sub judice, appellant violated the terms
and conditions of her community control by failing to report to a treatment center, testing
positive for alcohol on two occasions and failing to complete community service. More
importantly, while on community control, appellant was convicted of attempted driving
under the influence of alcohol in Cuyahoga County. As noted by appellee, the
Cuyahoga County case represents appellant’s second DUI related charge in less than
two years. In addition, appellant’s pre-sentence investigation report reveals that, in
2000, she was convicted in Cuyahoga County of driving under the influence, a felony of
the fourth degree.
{¶16} We find, based on the foregoing, that the trial court did not abuse its
discretion in finding that appellant had failed to take advantage of the opportunities
provided to her while under community control and imposing the previously suspended
sixteen (16) month prison sentence. The trial court’s decision was not arbitrary,
unconscionable or unreasonable.
{¶17} Appellant’s first assignment of error is, therefore, overruled.
Ashland County App. Case No. 12-COA-006 6
II
{¶18} Appellant, in her second assignment of error, argues that her sentence
imposed an unnecessary burden on state and/or local government resources pursuant
to R.C. 2929.11.
{¶19} R.C. 2929.11 provides as follows:
{¶20} “(A) A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. 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. To achieve those purposes, the sentencing court shall 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.”
{¶21} As we noted in State v. Ferenbaugh, 5th Dist. No. 03COA038, 2004–
Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial courts
discretion to impose sentences. Nowhere within the statute is there any guideline for
what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. No.2008–COA–
036, 2009–Ohio–3105, this Court reviewed a similar claim. We found that, although
burdens on State resources may be a relevant sentencing criteria, state law does not
require trial courts to elevate resource conservation above seriousness and recidivism
factors, Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No. 97CA0019, 1997 WL
624811 (October 10, 1997).
Ashland County App. Case No. 12-COA-006 7
{¶22} Appellant has not demonstrated that a term of incarceration in the instant
case is an unnecessary burden on state and/or local resources. As is stated above,
appellant admitted to four different community control violations. Specifically, appellant
admitted to being discharged from the Women's Center of Greater Cleveland for failing
to report to group, using alcohol on two occasions, and failing to complete 80 hours of
community service work. In addition, appellant violated the terms and conditions of her
community control by being convicted, on or about November 16, 2011, of attempted
driving under the influence of drugs and/or alcohol in Cuyahoga County Court of
Common Pleas. Moreover, as is stated above, appellant also was convicted in 2000 of
driving under the influence.
{¶23} Based on the foregoing, we cannot say that appellant’s sentence imposed
an unnecessary burden on state and/or local government resources. Appellant’s second
assignment of error is, therefore, overruled.
Ashland County App. Case No. 12-COA-006 8
{¶24} Accordingly, the judgment of the Ashland County Court of Common Pleas
is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0723
[Cite as State v. Lewis, 2012-Ohio-4806.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ANNE M. LEWIS :
:
Defendant-Appellant : CASE NO. 12-COA-006
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
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JUDGES