State v. Kopilchak

[Cite as State v. Kopilchak, 2013-Ohio-5016.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98984
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY KOPILCHAK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-560951
BEFORE: Boyle, J., Stewart, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: November 14, 2013
ATTORNEY FOR APPELLANT
Brian R. McGraw
1370 Ontario Street
Suite 2000
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James Hofelich
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Gregory Kopilchak, appeals his sentence. He raises
two assignments of error for our review:
1. The trial court erred and abused its discretion in imposing a $10,000 fine
when it failed to investigate Kopilchak’s ability to pay the fine.
2. The trial court erred and abused its discretion in imposing a maximum
sentence of eight years.
{¶2} Finding no merit to his appeal, we affirm.
Procedural History and Factual Background
{¶3} Kopilchak pleaded guilty to an amended indictment to one count of
burglary when the victim was present, a second-degree felony, in violation of R.C.
2911.12(A)(1). As part of his plea, he agreed to pay $70 in restitution to the victim.
{¶4} The charges arose after Kopilchak, in a severely intoxicated state from both
drugs and alcohol, broke into the 86-year-old victim’s apartment while she was sleeping
and stole her flat screen television, cell phone, portable CD player, $73, two credit cards,
jewelry box with several irreplaceable rings, earrings, and necklaces, and her house keys.
{¶5} The trial court sentenced Kopilchak to eight years in prison for the single
count of second-degree-felony burglary. The trial court further imposed a $10,000 fine
and ordered Kopilchak to pay $70 in restitution to the victim. The trial court also
notified Kopilchak that he would be subject to a mandatory term of three years of
postrelease control upon his release from prison. It is from this judgment that Kopilchak
appeals.
$10,000 Fine
{¶6} In his first assignment of error, Kopilchak argues that the trial court abused
its discretion when it failed to determine if Kopilchak was indigent and had the ability to
pay the $10,000 fine.
{¶7} Subsequent to his sentencing hearing but prior to his appeal, Kopilchak
moved the court to suspend the $10,000 fine because he was indigent. The trial court
granted Kopilchak’s motion and waived the $10,000 fine.
{¶8} Accordingly, Kopilchak’s first assignment of error is moot.
Maximum Sentence
{¶9} In his second assignment of error, Kopilchak argues that the trial court erred
and abused its discretion when it sentenced him to the maximum sentence of eight years.
{¶10} We do not review felony sentences under an abuse-of-discretion standard.
R.C. 2953.08(G)(2). Rather, we may “increase, reduce, or otherwise modify a sentence *
* * or may vacate the sentence and remand the matter to the sentencing court for
resentencing” if we determine that “the record clearly and convincingly * * * does not
support the sentencing court’s findings under [various provisions]; [or] [t]hat the sentence
is otherwise contrary to law.” Id.{¶11} There are no longer any specific findings or reasons a court must give in
order to impose maximum sentences. State v. Calliens, 8th Dist. Cuyahoga No. 97034,
2012-Ohio-703, ¶ 28; State v. Rose, 12th Dist. Butler No. CA2011-11-214,
2012-Ohio-5607, ¶ 82. Thus, we must determine if Kopilchak’s sentence was otherwise
contrary to law.
{¶12} The court’s only guide in this case was the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the serious and recidivism factors set forth in
R.C. 2929.12. R.C. 2929.11(A) provides that
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.
{¶13} Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list of
factors, including the seriousness of the defendant’s conduct, the likelihood of recidivism,
and “any other factors that are relevant to achieving those purposes and principles of
sentencing.”
{¶14} There is still no “mandate,” however, for the sentencing court to engage in
any factual findings under R.C. 2929.11 or 2929.12. State v. Jones, 12th Dist. Butler No.
CA2012-03-049, 2013-Ohio-150, ¶ 49, citing Rose, 12th Dist. Butler No.
CA2011-11-214, 2012-Ohio-5607, ¶ 78; State v. Putnam, 11th Dist. Lake No.
2012-L-026, 2012-Ohio-4891, ¶ 9. Instead, the “trial court still has the discretion to
determine whether the sentence satisfies the overriding purpose of Ohio’s sentencing
structure.” Jones at ¶ 49.
{¶15} In this case, the trial court explained the purposes and principles of
sentencing. It stated that when sentencing the defendant, it first looks to the defendant’s
“extensive felony history.” It noted that Kopilchak had “a criminal history that dates
back to 1979.” It reviewed Kopilchak’s criminal history, which included several
convictions for theft and disorderly conduct, aggravated robbery, resisting arrest,
burglary, and multiple community control violations. The trial court further indicated
that Kopilchak had a “capias issued right now” for another disorderly conduct charge.
{¶16} The trial court then stated that it considered the victim impact statement in
his case. It explained that the victim, an 86-year-old woman, was “terrified to go to sleep
and leave her house, because [Kopilchak] chose to spend [his] days drinking and taking
drugs rather than being a productive member of society.” The trial court stated that the
victim is “only looking for $70 in restitution, but she has about $10,000 in loss in damage
that [Kopilchak] caused her.” The trial court noted that the victim “suffered serious
financial as well as serious psychological harm,” and that the victim was “unbelievably
traumatized.”
{¶17} The trial court considered the fact that Kopilchak had reported that he had
gone to an inpatient drug treatment program six times, but then continued to use drugs
once he was released. The trial court indicated that it believed Kopilchak could stop
using drugs, however, because he did not use them in the military or when he was
previously incarcerated. The trial court stated that it did not consider Kopilchak’s
“voluntary intoxication” to be a mitigating factor.
{¶18} The trial court further stated:
I found it very telling you seem to spend your days over at the
Metricks Motel drinking. When your girlfriend gets home, she goes out
and buys drugs for you. You spend the day pounding down a bottle of
liquor with your neighbor, your neighbor passes out, you decide to go for a
walk and start breaking into people’s houses. * * * You have not only
disgraced the flag you once wore in uniform, you have used up all your
goodwill with this court.
{¶19} After a review of the record, we find Kopilchak’s sentence is not clearly and
convincingly contrary to law. Thus, his second assignment of error is overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover of 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.
MARY J. BOYLE, JUDGE
MELODY J. STEWART, A.J., and
TIM McCORMACK, J., CONCUR