State v. Barney

[Cite as State v. Barney, 2013-Ohio-4562.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-13-09
v.
NATHAN S. BARNEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 12 CR 0177
Judgment Affirmed
Date of Decision: October 15, 2013
APPEARANCES:
Gene P. Murray for Appellant
Derek W. DeVine for Appellee
Case No. 13-13-09
SHAW, J.
{¶1} Defendant-appellant Nathan S. Barney (“Barney”) appeals the March
30, 2013, judgment entry of the Seneca County Common Pleas Court sentencing
Barney to 20 years in prison following Barney’s guilty pleas to four counts of
Burglary in violation of R.C. 2911.12(A)(1), all felonies of the second degree, and
one count of Burglary in violation of R.C. 2911.12(A)(3), a felony of the third
degree.
{¶2} On September 27, 2012, Barney was indicted in a five count
indictment. Barney was charged with four counts of Burglary in violation of R.C.
2911.12(A)(1), all felonies of the second degree, for incidents occurring
November 27, 2011 (Count 1), May 8, 2012 (Count 3), May 14, 2012 (Count 4),
and January 17, 2012 (Count 5). (Doc. 1). Barney was also indicted for Burglary
in violation of R.C. 2911.12(A)(3), a felony of the third degree, for an incident
occurring May 4, 2012 (Count 2). (Id.)
{¶3} On October 11, 2012, Barney was arraigned and pled not guilty to the
charges. (Doc. 8).
{¶4} On January 24, 2013, a change of plea hearing was held wherein
Barney agreed, pursuant to a written negotiated plea agreement, to plead guilty to
the charges as indicted in this case. (Docs. 15, 16). In exchange, the State agreed
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not to prosecute another separate case out of Tiffin.1 (Doc. 15) The parties did
not agree on a sentencing recommendation. (Id.) At the hearing, the court
accepted Barney’s pleas and found him guilty.2 (Doc. 16). The court then ordered
a pre-sentence investigation and set the matter for a sentencing hearing. (Id.)
{¶5} On February 28, 2013, a sentencing hearing was held. At the
sentencing hearing, the prosecutor made a statement that for a period of months
the city of Tiffin was “under siege” from the series of Burglaries perpetrated by
Barney. (Tr. at 2). According to the prosecutor, the Burglaries changed the lives
of those victims involved, and created “fear” and “havoc” in the community. (Tr.
at 5). The prosecutor then recommended consecutive sentences for a total of 28
years in prison. (Tr. at 7).
{¶6} Several people then made statements on Barney’s behalf, requesting
leniency. Two of Barney’s friends and co-workers made statements that Barney
was “a genuine, caring[,] loving, hard-working team player” and that Barney
“showed nothing but respect and kindness” to the elderly residents of the
Autumnwood Care Center where Barney had worked for four years. (Tr. at 17,
19). Barney’s mother also made a statement, as did Barney himself. Barney
concisely stated that his time in jail had allowed him “time to get clean [from his
1
The handwritten notation on the written guilty plea lists this case as Tiffin PD Case #12-004377.
2
A transcript of this plea hearing was not provided.
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prescription drug addiction] and get [his] mind right.” (Tr. at 22). Barney also
apologized to the victims and to his family. (Tr. at 22).
{¶7} Ultimately, the court sentenced Barney to 5 years in prison on Counts
1, 3, 4, and 5, to be served consecutively to each other. (Tr. at 30). Barney was
sentenced to 30 months in prison on Count 2, to be served concurrently to the
other counts.3 (Id.) Barney was thus sentenced to an aggregate prison term of 20
years for these five counts. (Doc. 19). An entry reflecting this was filed March 1,
2013. (Doc. 19).
{¶8} It is from this judgment that Barney appeals, asserting the following
assignment of error for our review.
ASSIGNMENT OF ERROR
IN AN ABUSE OF ITS DISCRETION, THE TRIAL COURT
REVERSIBLY ERRED BY IMPOSING FOUR (4)
CONSECUTIVE FIVE (5) YEAR SENTENCES UPON THE
DEFENDANT-APPELLANT, ON COUNTS ONE, THREE,
FOUR AND FIVE OF THE INDICTMENT, FOR BURGLARY,
UNDER O.R.C. §2911.12(A)(1), ALL BEING FELONIES OF
THE SECOND DEGREE, THEREFORE IN VIOLATION OF
THE PRISON TERM SENTENCING GUIDELINES OF O.R.C.
§2929.11(A), (B), AND O.R.C § 2929.12(B), (C), (D), (E), AND
ALSO IN VIOLATION OF THE CONSECUTIVE PRISON
TERM SENTENCING GUIDELINES OF O.R.C. §2929.41(A)
AND §2929.14(C). FURTHERMORE, THE SENTENCING
JUDGMENT ENTRY INDICATED A TOTAL STATED
PRISON TERM OF TWENTY (20) YEARS, WHEN IN FACT,
THERE WAS NO SUCH ‘STATED’ PRISON TERM IN THE
3
At this sentencing hearing, Barney was also sentenced on charges stemming from other cases. As there
are no arguments before this court relating to those charges or the sentences, we do not further address
them to prevent confusion on the charges and convictions pertaining to this case.
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Case No. 13-13-09
TRANSCRIPT OF THE SENTENCING HEARING,
THEREBY RESULTING IN REVERSIBLE ERROR.
{¶9} In his assignment of error, Barney argues that the trial court erred by
imposing consecutive sentences on Barney. Specifically, Barney contends that the
consecutive sentences were not supported by the purpose of the felony sentencing
factors in R.C. 2929.11, and R.C. 2929.12. In addition, Barney argues that the
trial court erred by not specifically stating Barney’s aggregate prison term on the
record at the sentencing hearing.
{¶10} “A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law.” State v. Upkins, 3d Dist. Shelby No. 17-13-02, 2013-
Ohio-3986, ¶ 8, citing State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-Ohio-
767, ¶ 23 (the clear and convincing evidence standard of review set forth under
R.C. 2953.08(G)(2) remains viable with respect to those cases appealed under the
applicable provisions of R.C. 2953.08(A), (B), and (C) * * *). Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. An appellate
court should not, however, substitute its judgment for that of the trial court
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because the trial court is “‘clearly in the better position to judge the defendant’s
dangerousness and to ascertain the effect of the crimes on the victims.’” State v.
Watkins, 3d Dist. Auglaize No. 2–04–08, 2004–Ohio–4809, ¶ 16, quoting State v.
Jones, 93 Ohio St.3d 391, 400 (2001).
{¶11} At the outset, we note that R.C. 2929.14(C)(4) requires a trial court
to make specific findings before imposing consecutive sentences on an offender.
While the trial court is required to make the specific findings, it is not required to
list its reasoning for making the findings. State v. Hill, 3d Dist. No. 7-12-11,
2013-Ohio-3873, ¶ 22. Specifically, with respect to the issues raised in this case
R.C. 2929.14(C)(4) states, in relevant part:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public
from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
***
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
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{¶12} In this case, Barney was convicted of a series of Burglary offenses he
committed from November of 2011 to May of 2012. At the sentencing hearing,
the trial court stated the following with regard to consecutive sentences:
The court has considered the principals and purposes of felony
sentencing under Ohio Revised Code Section 2929.11 and has
balanced the seriousness and recidivism factors under Ohio
Revised Code Section 2929.12.
***
Because of the different degrees of felonies, the Court has
considered the factors and presumptions under Revised Code
Section 2929.13 (B), (C), and (D) as it relates to each of these
charges, convictions.
***
In case No. 177 the Court finds that the consecutive sentences
are necessary to protect the public from future crime or to
punish this defendant, and that consecutive sentences are not
disproportionate to the seriousness of the defendant’s conduct
and to the danger the defendant poses to the public.
The Court further finds that at least two of the multiple offenses
were committed as part of one or more courses of conduct, and
the harm caused by two or more of the multiple offenses so
committed was so great or unusual that no single prison term for
any of the offenses committed as part of any of the course of
conduct adequately reflects the seriousness of the defendant’s
conduct.
(Tr. at 24).4
4
The language and the statutes cited by the trial court at the sentencing hearing were reflected in the
sentencing entry as well. (Doc. 19).
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{¶13} The court thus stated that it had considered the applicable statutes
and directly cited the language of R.C. 2929.14(C)(4)(b) at the sentencing hearing.
In addition, the court also stated the following on the record:
Backing5 [sic] into a car is, motor vehicles, bad. Breaking into a
garage is bad. Breaking into an unoccupied structure of some
sort, bad. Breaking into someone’s home – terrible. Horrible.
***
Homes have been broken into. Items stolen. Peoples[’] lives
changed.
(Tr. at 27-28). Thus before the court proceeded to sentence Barney to consecutive
sentences for his second degree felony Burglary offenses, the trial court not only
recited the language in 2929.14(C)(4)(b), but the court also gave some reasoning
to support consecutive sentences, even though it was unnecessary.
{¶14} However, Barney argues that his sentence was essentially unfair as
Barney had no prior criminal history, had steady employment, and had only
committed these Burglaries because of a drug addiction that Barney was working
to overcome. Despite these arguments, the trial court’s sentence was authorized
by law, the trial court explicitly stated that it had considered the applicable statutes
both at the sentencing hearing and in the judgment entry of sentencing, and the
trial court was within its discretion to sentence Barney to consecutive sentences.
The trial court’s sentence was substantially less than the prosecutor’s
5
It would appear from the context here that the court meant “breaking” rather than backing.
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recommended 28 year prison term, and it was considerably less than the maximum
prison term allowable by law, as the court could have sentenced Barney to 8 years
in prison on each of the four second degree felony Burglary offenses.
{¶15} Nevertheless, we would note that evidence in the record does support
the trial court’s decision to impose consecutive sentences. Barney’s burglaries
were carried out over a span of months—a span that the prosecutor stated “created
fear and * * * havoc in [the] community.” In addition, one of the victims of
Barney’s burglaries was an 82 year old woman who awoke during the burglary.
Barney also had other felony charges pending against him for similar crimes at the
time of sentencing, and the PSI characterized Barney as a “Moderate” risk to
recidivate. Finally, Barney also admittedly committed these crimes to acquire
funds to allow him to feed an illicit drug habit. Therefore not only was Barney’s
sentence not contrary to law, but there were also facts to support the consecutive
sentences in the record.
{¶16} Barney makes one final argument that the trial court erred by
contending that the trial court failed to state Barney’s aggregate prison term on the
record at the sentencing hearing. With regard to Barney’s sentence at the
sentencing hearing, the trial court stated the following:
Case No. 12CR0177, it will be the sentence of this Court that you
serve a stated prison term of five years at the Ohio Department
of Rehabilitations and Corrections on Count One, a stated
prison term of 30 months at the Ohio Department of
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Rehabilitation and Correction on Count Two, a stated prison
team [sic] of five years on Count Three, a stated prison term of
five years on Count Four, a stated prison term of five years on
Count Five.
The Sentences for Counts One, Three, Four and Five will be
served consecutively to each other. The sentence in Count Two
shall be served currently [sic].
(Tr. at 30-31).
{¶17} While it is true that the trial court never explicitly stated the
aggregate prison term on the record at the sentencing hearing, the trial court did
plainly order the five year prison sentences for Counts 1, 3, 4, and 5 to be served
consecutively. Moreover, after stating the length of the sentences but before the
trial court concluded the hearing, the trial court asked Barney’s counsel if there
was anything further from the defense and counsel said that there was not,
indicating no confusion. Furthermore, if Barney or his counsel was unable to add
the figures from the consecutive sentences together at the sentencing hearing, the
trial court’s judgment entry of sentencing explicitly states that the “total stated
prison term [is] Twenty (20) years.” (Doc. 19). As Barney cites us to no law
showing us how the trial court’s omission was error and as there did not appear to
be confusion about the length of the sentence at the sentencing hearing, we cannot
find that the trial court erred. Accordingly, Barney’s assignment of error is
overruled.
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{¶18} For the foregoing reasons, Barney’s assignment of error is overruled
and the judgment of the Seneca County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON, P.J. and ROGERS, J., concur.
/jlr
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