State v. Schmidt

[Cite as State v. Schmidt, 2013-Ohio-1552.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98731
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL SCHMIDT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-562186
BEFORE: S. Gallagher, J., Jones, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: April 18, 2013
ATTORNEY FOR APPELLANT
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Andrew Rogalski
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant Michael Schmidt appeals from the maximum prison
sentence imposed upon him for breaking and entering, a felony of the fifth degree. For the
reasons that follow, we affirm.
{¶2} Appellant, along with codefendant Robert Kennedy, was charged in a
four-count indictment with breaking and entering, theft, possessing criminal tools, and
criminal damaging. The charges arose from the men’s alleged theft of car batteries from
Sam’s Club on or about April 27, 2012. Appellant pled guilty to one count of breaking
and entering pursuant to R.C. 2911.13(B). The trial court imposed the maximum prison
term of 12 months, and defendant appeals this sentence. His sole assignment of error is
as follows:
The trial court erred when it sentenced Schmidt to the maximum possible
prison sentence for a non-violent felony of the fifth degree.
{¶3} A review of felony sentencing involves a two-step analysis: (1) whether the
trial court complied with all applicable rules and statutes to determine if the sentence was
clearly and convincingly contrary to law; and (2) whether the trial court abused its
discretion by imposing the sentence. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 4.1
1
Subsequent to the court’s decision in Kalish, H.B. 86 took effect. Am.Sub.H.B. No. 86,
2001 Ohio Laws 29 (“H.B. 86”), revised Ohio’s sentencing statutes. Among other amendments, the
legislature explicitly stated its intent to re-enact and revive mandatory statutory findings applicable to
{¶4} Appellant argues that his sentence is contrary to law and an abuse of
discretion. He argues that the mandatory community control provisions of R.C.
2929.13(B)(1)(a) applied to him and also asserts that his prison sentence does not
comport with the principles of sentencing.
{¶5} R.C. 2929.13(B)(1)(a) provides as follows:
Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence, the court shall sentence the offender to a
community control sanction of at least one year’s duration if all of the
following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a
felony offense or to an offense of violence that is a misdemeanor and that
the offender committed within two years prior to the offense for which
sentence is being imposed.
(ii) The most serious charge against the offender at the time of sentencing is
a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the
imposing consecutive sentences. See R.C. 2929.14, editor’s note regarding the provisions of Section
11 of H.B. 86, citing State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768 (“although
constitutional under Hodge, supra, that language is not enforceable until deliberately revived by the
General Assembly”). Although H.B. 86 took effect after Kalish was decided, the majority of appellate
courts continue to apply the two-step analysis it established for sentencing review. Kalish did not
address the standard of review for required findings that are now back in place for consecutive
sentencing under R.C. 2929.14(C)(4). We recognize many courts have revived the use of R.C.
2953.08(G) and the clear and convincing standard to determine whether requisite statutory findings
are supported by the record or whether the sentence is contrary to law in the context of consecutive
sentencing. While much of this may be more about semantics than a real distinction in analysis, it is
important to note that the viability of Kalish may have to be reviewed in light of H.B. 86.
Nevertheless, until the Supreme Court of Ohio directs us otherwise, we continue to cite to Kalish even
if our analysis includes reference to R.C. 2953.08.
court with the names of, contact information for, and program details of one
or more community control sanctions of at least one year’s duration that are
available for persons sentenced by the court.
R.C. 2929.13(B)(1)(a).
{¶6} This court has determined that if all three subsections are satisfied, the trial
court is required to impose a one-year term of community control sanctions and lacks the
discretion to sentence the offender to a prison term. State v. Johnson, 8th Dist. No.
98245, 2013-Ohio-575, ¶ 59.
{¶7} The state contends that R.C. 2929.13(B)(1)(b) does not apply because
appellant had prior felony convictions despite the fact that they predated his sentencing by
more than two years and because he violated the terms of his bond. The state’s first
argument was rejected by this court in Johnson. Id. at ¶ 60-61. We acknowledge that
Am.Sub.S.B. No. 160 took effect on March 22, 2013, which changed, or clarified, the
provisions of R.C. 2929.13(B)(1)(b). Under the current version of the law, the
mandatory community control provisions do not apply if the offender has previously pled
guilty to, or has previously been convicted of, a felony, regardless of the date. See R.C.
2929.13(B)(1)(a)(i). This court was examining the prior version of the law in Johnson.
In this case, appellant was sentenced before the effective date of S.B. 160. However,
we need not decide whether the amendments to R.C. 2929.13 are retroactive because the
mandatory community control provisions do not apply to appellant for other reasons set
forth below.
{¶8} The record indicates that appellant did not comply with all presentence
directives, which the trial court specifically noted when it imposed the prison term in this
case. One of his bond conditions included court-supervised release, and he failed to
report for a risk assessment appointment, among other violations. R.C.
2929.13(B)(1)(b)(iii) gives the court discretion to impose a prison sentence for a
nonviolent fifth-degree felony offense where the defendant violated the conditions of
bond set by the court. Accordingly, the trial court had discretion to impose a prison
term.
{¶9} The record further demonstrates that the court considered the principles and
purposes of felony sentencing. The court noted appellant’s prior history of felony
convictions, previous periods of incarceration, and the fact of prior probation violations.
The court stated that appellant’s performance while on bond and court-supervised release
“was not good.” He tested positive for opiates, failed to report on June 13, and failed to
show up for an assessment. The court believed that appellant would not be compliant
with conditions of community control sanctions and, therefore, imposed a prison term,
which was within the court’s discretion. The court further found that a prison sentence
was necessary to protect the public and not to demean the seriousness of the offense
based on appellant’s history and his poor performance on court-supervised release.
{¶10} Appellant’s sentence was not clearly and convincingly contrary to law or an
abuse of discretion.
{¶11} 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.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR