State v. Parker

[Cite as State v. Parker, 2014-Ohio-1235.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100067
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PHILLIP R. PARKER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-572139-A
BEFORE: E.T. Gallagher, J., Boyle, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 27, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Milko Cecez
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Phillip Parker (“Parker”), appeals his sentence for a
fourth-degree felony DUI. We find no merit to the appeal and affirm.
{¶2} Parker pleaded guilty to one count of driving under the influence, a
fourth-degree felony, in violation of R.C. 4511.191(A). At the sentencing hearing,
Parker’s trial counsel advocated for alcohol treatment in lieu of prison. However, after
considering Parker’s criminal history, which included 14 alcohol-related offenses and
other drug offenses, the trial court sentenced Parker to 30 months in prison. The court
also imposed a lifetime driver’s license suspension and a mandatory $1,350 fine. Parker
now appeals his prison sentence.
{¶3} In his sole assignment of error, Parker contends his prison sentence is
contrary to law because the trial court failed to consider the minimum sanctions necessary
to accomplish the goals of sentencing as required by R.C. 2929.11.
{¶4} R.C. 2929.11 describes the overriding purposes and principles of sentencing
the court must consider when imposing a felony sentence. To achieve those purposes,
the sentencing court must 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. R.C. 2929.11(A). R.C. 2929.11 also
requires the court to impose the minimum sanctions the court determines “will
accomplish those purposes without imposing an unnecessary burden on state or local
government resources.”
{¶5} Although resource burdens are a relevant sentencing consideration under R.C.
2929.11(A), a sentencing court is not required to elevate resource conservation above
seriousness and recidivism factors. State v. Luyando, 8th Dist. Cuyahoga No. 97203,
2012-Ohio-1947, ¶ 14, citing State v. Burton, 10th Dist. Franklin No. 06AP-690,
2007-Ohio-1941, ¶ 19. It is difficult for a defendant to establish a claim that a prison
sentence imposes an unnecessary burden on governmental resources where a prison
sentence properly serves the interests of public protection and punishment. State v.
Bowshier, 2d Dist. Clark No. 08-CA-58, 2009-Ohio-3429, ¶ 14, citing Griffin and Katz,
Ohio Felony Sentencing Law, at 966 (2007 Ed.). The greater the need to protect the
public or punish the offender, the more governmental resources are necessary to achieve
those purposes.
{¶6} In this case, the trial court determined that a prison sentence was necessary to
punish Parker and to protect the public. The court noted that Parker had 14
alcohol-related offenses on his criminal record in addition to drug possession, drug
trafficking, drug abuse, and burglary convictions. Parker admitted that he decided not to
seek substance abuse treatment or attend AA meetings in the years following his release
from prison because he thought he could rehabilitate himself on his own. In response to
Parker’s request for additional time for rehabilitation outside of prison, the court observed
that Parker failed to be rehabilitated despite years of rehabilitative opportunities. The
court explained:
You say to give you some more time. I don’t think the community has any
more time. You know you’ve been exceedingly lucky that you haven’t
killed somebody with this record. * * *
And as far as sentencing you, * * * I don’t know how many crimes you
have. I only counted the 14 related to alcohol. I didn’t count all the other
ones, the drug possessions, the drug trafficking, drug abuse, burglaries, I
didn’t count those. The things involving guns, I didn’t count those. * * *
[Prison] didn’t mean anything to you. Nothing. Because after your prison
case, * * * you still had nine more alcohol-related cases. * * * From ‘05
until now, nine more cases involving alcohol.* * *
Well, you know what, the residents of my community here don’t have that
kind of time to wait for you to commit five or six or nine more cases and
decide you need further help. No, they don’t have that kind of time and
their luck may be running out.
{¶7} Thus, the record reflects that the trial court considered Parker’s failure to be
rehabilitated and that his alcohol-related offenses pose a serious threat to the public. The
court’s consideration of community control sanctions that included local incarceration as
an option is implicit in the court’s finding that previous attempts at rehabilitation have
failed. The court considered community control sanctions and summarily rejected them.
Furthermore, there is nothing in the record to suggest that Parker’s 30-month prison
sentence is an unnecessary burden on state or local governmental resources under the
circumstances of this case.
{¶8} The sole assignment of error is overruled.
{¶9} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
KEY WORDS:
#100067- S/O v. Phillip R. Parker
OVI; sentence; sentencing; minimum sanctions; governmental resources. Thirty-month
prison sentence affirmed. Court considered the minimum sanctions necessary to protect
the public and punish the offender.