State v. Scott

[Cite as State v. Scott, 2011-Ohio-4558.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 MA 171
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
JOHN W. SCOTT, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10CR555.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Rhys Cartwright Jones
42 North Phelps Street
Youngstown, Ohio 44503
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: September 8, 2011
VUKOVICH, J.
¶{1} Defendant-appellant John W. Scott appeals the decision of the Mahoning
County Common Pleas Court which sentenced him to the maximum of twelve months
in jail after his guilty plea to escape. The issue is whether the court abused its
discretion in refusing to sentence appellant to community control. For the following
reasons, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
¶{2} On May 22, 2010, appellant was stopped for failure to use a turn signal
after police followed him from a drug house. Instead of immediately pulling over, he
drove to a parking lot as he apparently anticipated being arrested and wanted to avoid
having the vehicle towed. Upon approaching the occupants of the vehicle, the police
witnessed a passenger swallowing rocks of crack cocaine, which the other passenger
advised they all had helped purchase. Appellant gave a false name to the officers.
When they discovered his real name, they noticed that he was driving under
suspension. As he had high blood pressure while being booked into the county jail, he
was transported to the hospital. Appellant left the hospital even though he had been
advised that he would be charged with escape if he left. Hospital police officers
chased him and placed him in custody.
¶{3} Appellant was then indicted for escape, a fifth degree felony in violation
of R.C. 2921.34(A), (C)(2)(c)(i). On September 17, 2010, appellant pled guilty in
return for the state’s recommendation that he receive community control. The court
ordered a presentence investigation. At the sentencing hearing, the state
recommended community control, and defense counsel asked that the court follow this
recommendation, which was also the recommendation of the probation department. In
an October 29, 2010 entry, the court sentenced appellant to the maximum of twelve
months in jail, with one hundred fifty-nine days credit for time served. The court found
appellant was not amenable to community control. The court stated that it considered
the purposes and principles of sentencing under R.C. 2929.11 and that it balanced the
seriousness and recidivism factors under R.C. 2929.12. The within timely appeal
followed.
ASSIGNMENT OF ERROR
¶{4} Appellant’s sole assignment of error provides:
¶{5} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING MR.
SCOTT TO A MAXIMUM PRISON TERM IN-SO-FAR AS IT FOUND AND
CONCLUDED THAT MR. SCOTT WAS NOT AMENABLE TO COMMUNITY
CONTROL SANCTIONS, DESPITE A RECOMMENDATION OF ALL CONCERNED
PARTIES THAT HE WAS AMENABLE TO COMMUNITY CONTROL SANCTIONS.”
¶{6} Appellant complains that the court’s imposition of a maximum sentence
instead of community control constitutes an abuse of discretion because the state and
the probation department recommended community control. Appellant argues that
nothing before the court established that he was not amenable to community control.
¶{7} Due to the Ohio Supreme Court's split decision in Kalish, we review
sentences using both the clearly and convincingly contrary to law standard of review
and the abuse of discretion standard of review. State v. Gratz, 7th Dist. No. 08MA101,
2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17,
applying State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912. We first determine
whether the sentencing court complied with any applicable rules and statutes cited to
us by appellant to determine whether the sentence is clearly and convincingly contrary
to law. Gratz, 7th Dist. No. 08MA101 at ¶8. If the sentence is not clearly and
convincingly contrary to law, we then determine whether the sentencing court abused
its discretion. Id.
¶{8} Foster eliminated mandatory judicial fact-finding for imposition of a
maximum sentence but left intact R.C. 2929.11 and 2929.12. State v. Merriweather,
7th Dist. No. 09MA160, 2010-Ohio-2279, ¶8, citing State v. Mathis, 109 Ohio St. 3d 54,
2006-Ohio-855, ¶38 (these provisions continue to be “an integral part of the felony
sentencing process”). However, these statutes are not fact-finding statutes as was
R.C. 2929.14. Instead, they serve as “an overarching guide” for a trial judge to
consider in fashioning an appropriate sentence. Kalish, 120 Ohio St. 3d 23 at ¶17.
R.C. 2929.11 requires that the sentencing judge consider the purposes and principles
of sentencing, and R.C. 2929.12 requires the court weigh certain seriousness and
recidivism factors.
¶{9} Although it was not required to, the court stated at the hearing and in its
judgment entry that it considered the purposes and principles of sentencing under R.C.
2929.11 and weighed the seriousness and recidivism factors under R.C. 2929.12. See
State v. James, 7th Dist. No. 07CO47, 2009-Ohio-4392, ¶50 (reversal is not automatic
where court fails to specifically announce that it considered these statutes; rather, a
silent record raises a rebuttable presumption that the court did in fact consider the
statutes). The sentencing court was not required to provide any reasons for imposing
its sentence or to explain exactly how it applied the statutes. Id.; Kalish, 120 Ohio
St.3d 23 at ¶12; State v. Watson, 7th Dist. No. 09MA62, 2011-Ohio-1178, ¶12.
¶{10} The overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others and to punish the offender. R.C.
2929.11(A). To achieve these 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. Id. A sentence shall be
commensurate with and not demeaning to the seriousness of the offender's conduct
and its impact upon the victim. R.C. 2929.11(B). The sentencing court has discretion
to determine the most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 and shall consider whether any seriousness
and recidivism factors are relevant. R.C. 2929.12(A). See, also, Kalish, 120 Ohio
St.3d 23 at ¶17 (trial court has full discretion to determine whether a sentence will
satisfy the overriding purpose of Ohio's sentencing structure).
¶{11} Regarding the seriousness of the offense, officers had to give chase to
arrest appellant, and appellant committed the offense after he had just been arrested
for various other offenses, displaying a pattern of escalating conduct. See R.C.
2929.12(A) (any other factor). Regarding recidivism, appellant does have a criminal
record: 1994 improper handling of a firearm in a vehicle, 1996 theft, 1997
unauthorized use of a motor vehicle, 2000 assault, 2005 receiving stolen property, and
2005 cocaine possession. See R.C. 2929.12(D)(2). He had been placed on probation
multiple times in the past. He violated probation in 2008 and was sentenced to
consecutive jail terms on the two offenses for which he was serving community
control. See R.C. 2929.12(D)(3). He also has a lengthy traffic record including prior
fictitious registration and fictitious plates charges and multiple operating without a
license and driving under suspension charges. Additionally, he was arrested for a
plethora of other offenses that never resulted in conviction. See State v. Cooey
(1989), 46 Ohio St. 3d 20, 35 (prior allegations of wrongdoing are part of the social
history); State v. Starkey, 7th Dist. No. 06MA110, 2007-Ohio-6702, ¶17 (evidence of
unpursued offenses can be considered at sentencing). At the time of his arrest, he
was on supervision in Warren and on summons from Youngstown. See R.C.
2929.12(D)(1). Although the probation department recommended probation, they
conditioned this on completion of a term in a community correction facility with certain
programs to complete. However, appellant had this chance in the past. The probation
department also noted that he did not seem remorseful. See R.C. 2929.12(D)(5).
Finally, there is no indication that the offense was committed under circumstances not
likely to recur; rather, the circumstances seem fairly likely to recur. See R.C.
2929.12(E)(4).
¶{12} Thus, contrary to appellant’s contention on appeal, there was good
reason for the court to determine that appellant was not amenable to community
control. The refusal to impose community control was not an abuse of discretion, nor
is there any indication that the decision to impose a maximum sentence of twelve
months was unreasonable, arbitrary, or unconscionable. See Kalish, 120 Ohio St. 3d
23 at ¶17 (trial court has full discretion to determine appropriate sentence). As such,
this assignment of error is overruled.
¶{13} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.