State v. Lister

[Cite as State v. Lister, 2014-Ohio-1405.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, :
: Case No. 13CA15
v. :
: DECISION AND
TRAVIN M. LISTER, : JUDGMENT ENTRY
:
Defendant-Appellant. : Released: 03/27/14
APPEARANCES:
Jeremiah J. Spires, Lancaster, Ohio for Appellant.
Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio for Appellee.
Hoover, J.:
{¶ 1} Appellant herein and defendant below, Travin M. Lister, appeals his
sentence from the Pickaway County Court of Common Pleas. A jury found appellant
guilty of Burglary, a second degree felony, in violation of R.C. 2911.12(A)(2), and Theft,
a fifth degree felony, in violation of R.C. 2913.02(A)(1). The trial court merged the theft
charge with the burglary charge and sentenced appellant to a prison term of eight years.
Appellant contends that the trial court erred when it sentenced him to the statutory
maximum sentence. For the following reasons, we overrule appellant’s sole assignment
of error and affirm the judgment of the trial court.
Appellant Travin M. Lister sets forth the following assignment of error:
THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S
CONCLUSION THAT MR. LISTER COMMITTED THE WORST
FORM OF THE OFFENSE OF BURGLARY; THIS COURT SHOULD
Pickaway App. No. 13CA15 2
REVERSE THE TRIAL COURT’S IMPOSITION OF THE MAXIMUM
SENTENCE AS TO HIS CONVICTION.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 20, 2013, at approximately 2:40 A.M., Darl Reynolds noticed
two hooded individuals outside his home on his home video surveillance system.
Reynolds noticed the two individuals coming up from the basement carrying multiple
items. The individuals were carrying a flat screen television, a monitor, and a silver case.
They also picked up an air compressor from the garage. Reynolds described his basement
as being at the bottom of a flight of stairs inside the garage. Reynolds's son, Jonathan
Reynolds, has a bedroom in the basement.
{¶ 3} After seeing the individuals on the security screen, Reynolds ran out of his
house as a waiting car picked up the two individuals. A car chase ensued as Reynolds
followed the individuals in his truck, at a speed well over one hundred miles per hour.
The car eventually stopped in a parking lot by an office building. The two hooded
individuals exited the vehicle and ran away from the scene. The driver of the car pulled
into a nearby alley and left the items taken from Reynolds’s house in the alley. Reynolds
continued to follow the car until a sheriff stopped the vehicle at an intersection. The
officer questioned the female driver, Brenda Evans, and Reynolds.
{¶ 4} Appellant, Travin M. Lister, and Terrence Dukes were later apprehended as
suspects in this case. Detective Strawser of the Pickaway County Sheriff’s office
interviewed appellant at approximately 6:00 a.m. that same morning. According to
Detective Strawser, appellant indicated that Reynolds’s son Jonathan gave him
permission to borrow the television and the computer monitor. Appellant also claimed
Pickaway App. No. 13CA15 3
that he took the air compressor to pump up a tire on his vehicle. At trial, Jonathan
Reynolds testified that he and appellant were on and off again close friends for the last
ten years. Jonathan denied giving permission to appellant to enter his bedroom
unaccompanied by Jonathan.
{¶ 5} On February 8, 2013, appellant was indicted for one count Burglary, a
second degree felony, in violation of R.C. 2911.12(A)(2) and one count Theft, a fifth
degree felony, in violation of R.C. 2913.02(A)(1). The case proceeded to trial on May 9,
2013. The jury returned guilty verdicts on both counts. The trial court merged the theft
offense with the burglary offense and sentenced appellant to eight years in prison.
Appellant timely filed this appeal on June 10, 2013.
{¶ 6} In his sole assignment of error, appellant argues that the trial court erred in
sentencing him to the statutory maximum sentence of eight years. He contends that since
all the property was recovered and no injury or threat was claimed in this case, the record
does not support the trial court’s imposition of the sentence. Appellant argues that the
trial court abused its discretion and this case should be remanded back to the trial court
for resentencing. Appellee, the State of Ohio, argues that the trial court followed the
requirements set forth in R.C. 2929.12 and did not err when it sentenced appellant to the
maximum term of imprisonment.
STANDARD OF REVIEW
{¶ 7} This Court, in its principal opinion, recently declined to review a felony
sentence under the two-step approach first declared in State v. Kalish, 120 Ohio St. 3d 23,
2008-Ohio-4912, 896 N.E.2d 124. See State v. Bever, 4th Dist. Washington No. 13CA21,
Pickaway App. No. 13CA15 4
2014-Ohio-600, ¶¶ 8-13.1 Rather, the principal opinion applied the standard set forth in
R.C. 2953.08. Several other Ohio appellate courts have abandoned the Kalish approach,
and now review felony sentences in accordance with R.C. 2953.08. See State v. White,
2013-Ohio-4225, 997 N.E.2d 629, ¶ 9 (1st Dist.) (“Thus, henceforth, we will apply the
statutory standard rather than the Kalish plurality framework to our review of felony
sentences.”); State v. Worth, 10th Dist. Franklin No. 10AP–1125, 2012–Ohio–666, ¶ 83
(the court applied the statutory test and noted that, as a plurality opinion, Kalish is of
limited precedential value); State v. Rodeffer, 2nd Dist. Montgomery Nos. 25574, 25575,
& 25576, 2013-Ohio-5759, ¶ 29 (“In order to be consistent with the approach of other
Ohio appellate districts that have already considered this issue in light of H.B. No. 86, we
will no longer apply the two-part test in Kalish when reviewing felony sentences
controlled by H.B. 86. From now on we will use the standard of review set forth in R.C.
2953.08(G)(2).”); State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7
(“Accordingly, we find that the standard of review set forth in R.C. 2953.08(G)(2) shall
govern all felony sentences.”); State v. Crawford, 12th Dist. Clermont No. CA2012-12-
088, 2013-Ohio-3315, ¶ 6 (“[F]rom this day forward, rather than continue to apply the
two-step approach as provided by Kalish, we find ‘the standard of review set forth in
R.C. 2953.08(G)(2) shall govern all felony sentences.’ ”); State v. Fletcher, 3rd Dist.
Auglaize No. 2-13-02, 2013-Ohio-3076, ¶ 14 (utilizing R.C. 2953.08 to review a trial
court’s imposed sentence.); State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-
Ohio-425, ¶¶ 10, 16 (“Given recent legislative action in Ohio, culminating in the passage
of a new statute directly addressing appellate court felony sentence review and a growing
1
But see the concurring opinion of Harsha, J., in which Judge William H. Harsha suggests that the Kalish
approach may still be appropriate in certain circumstances. See also Judge Matthew W. McFarland’s vote
in the case, in which he concurred in judgment only.
Pickaway App. No. 13CA15 5
body of recent appellate cases applying the new statutory parameters, we are no longer
utilizing the former Kalish approach. *** Based upon all of the foregoing, we now
likewise apply the statutory standard of review rather than the former Kalish approach to
our review of felony sentences.”). R.C. 2953.08(D)(3) provides that “[a] sentence
imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the
Revised Code is not subject to review under this section.”
{¶ 8} R.C. 2953.08(G)(2) provides that:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 9} Under R.C. 2953.08(G)(2), we may only modify or vacate a defendant’s
sentence if we find, clearly and convincingly, that (1) the record does not support the
Pickaway App. No. 13CA15 6
mandatory sentencing findings, or (2) that the sentence is “otherwise contrary to law.”
We recognize that this is an “extremely deferential standard of review.” Venes, 2013-
Ohio-1891, 992 N.E.2d 453, at ¶ 21. Although Kalish may not provide the standard of
review framework for reviewing felony sentences, it does provide guidance for
determining whether a sentence is clearly and convincingly contrary to law. See State v.
Lee, 12th Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 10. According to Kalish,
a sentence is not clearly and convincingly contrary to law when the trial court considered
the purposes and principles set forth in 2929.11, as well as the factors listed in R.C.
2929.12, properly applies post release control, and sentences within the permissible
statutory range. Id.; See also Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d
124 at ¶ 18.
ANALYSIS
{¶ 10} This appeal concerns the imposition of a maximum sentence; thus our
review is governed by R.C. 2953.08(G)(2)(b). Here, we are not focused on any
mandatory sentencing findings, referred to in R.C. 2953.08(G)(2)(a), since maximum
sentences do not require specific findings. White, supra, ¶ 7. Therefore, we review
appellant’s maximum sentence to determine if it is clearly and convincingly contrary to
law.
{¶ 11} The trial court sentenced appellant to eight years in prison for the offense
of burglary, a second degree felony. Under R.C. 2929.14(A)(2), the range of statutory
prison terms for a second degree felony is two to eight years. Thus, the trial court
imposed a sentence within the statutory range, albeit the maximum term of eight years.
At sentencing the trial court judge stated, on the record, that the court considered the
Pickaway App. No. 13CA15 7
factors in R.C. 2929.12 and also the principles under sentencing under R.C.2929.11. The
trial court’s sentencing entry also states: “The Court has considered the record, oral
statements, and any victim impact statements, as well as the principles and purposes of
sentencing under ORC Section 2929.11, and has balanced the seriousness and recidivism
factors under ORC Section 2929.12.” The trial court also notified appellant that he would
be subject to post release control for up to three years.
{¶ 12} Appellant argues that factors that have justified maximum sentences, such
as serious harm to the victim, threatening the victim with a knife or other deadly weapon,
and inflicting serious financial or irreparable personal loss, are not present in this case.
Appellant cites to three different cases: State v. Franklin, 5th Dist. Stark No.
2003CA00442, 2004-Ohio-5398 (serious harm to the victim), State v. McLaughlin, 8th
Dist. Cuyahoga No. 83149, 2004-Ohio-2334 (threatening victim with a knife or other
deadly weapon), and State v. Messer, 5th Dist. Licking No. 2005-CA-00035, 2005-Ohio
5941. However, appellant also acknowledges that he does not qualify for a minimum
sentence due to his prior criminal offenses and incarceration.
{¶ 13} With respect to appellant’s argument, our inquiry does not focus on a case
by case comparison but rather the trial court’s proper application of the statutory
sentencing guidelines. See State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-
Ohio-5669, ¶ 15; State v. Isreal, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474,
¶ 72. Furthermore, “ ‘a defendant claiming inconsistent sentencing must show the trial
court failed to properly consider the statutory sentencing factors and guidelines found in
R.C. 2929.11 and 2929.12.’ ” Stamper at ¶ 15, quoting Isreal at ¶ 72. “ ‘When sentencing
Pickaway App. No. 13CA15 8
an offender, each case stands on its own unique facts.’ ” Stamper at ¶ 15, quoting State v.
Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 58.
{¶ 14} Although trial courts have full discretion to impose any term of
imprisonment within the statutory range, they must consider the sentencing purposes in
R.C. 2929.11 and the guidelines contained in R.C. 2929.12.
H.B. 86 amended R.C. 2929.11, which now states:
(A) A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. 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.
To achieve those 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 to the victim of
the offense, the public, or both.
{¶ 15} “However, there is still no ‘mandate’ for the sentencing court to engage in
any factual findings under R.C. 2929.11 or R.C. 2929.12.” State v. Jones, 12th Dist.
Butler No. CA2012–03–049, 2013–Ohio–150, ¶ 49, citing State v. 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. “Rather, the trial court still has discretion to
determine whether the sentence satisfies the overriding purpose of Ohio's sentencing
structure.” Jones at ¶ 49; See R.C. 2929.12 (which provides a nonexhaustive list of
Pickaway App. No. 13CA15 9
factors a trial court must consider when determining the seriousness of the offense and
the likelihood that the offender will commit future offenses).
{¶ 16} During its imposition of sentence, the trial court based its decision on the
time in which the offense was committed, the relationship between the appellant and the
victim, and the fact that appellant was on probation in two counties when the offense
occurred. The trial court stated: “I find that you committed the worst form of this offense
as indicated by virtue of the fact the hour it was committed, the relationship of the victim,
the recidivism factors are completely against him in the sense that he’s on probation in
two places when this occurred, and he had a prior criminal history***.” At the sentencing
hearing, the trial court made record of appellant’s prior criminal history, which included
burglary, receiving stolen property, and two theft offenses from separate counties.
{¶ 17} The trial court imposed a sentence within the appropriate definite prison
term pursuant to R.C. 2929.14. The record reflects that the trial court considered the
purposes and principles of felony sentencing under R.C. 2929.11, and balanced the
seriousness and recidivism factors under R.C. 2929.12. We find that the trial court
complied with all applicable rules and statutes. Therefore, the trial court’s sentence is not
clearly and convincingly contrary to law.
{¶ 18} Accordingly appellant’s sole assignment of error is overruled and the
judgment of the Pickaway County Court of Common Pleas is affirmed.
JUDGMENT AFFIRMED.
Pickaway App. No. 13CA15 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Pickaway
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of the proceedings in that
court. If a stay is continued by this entry, it will terminate at the earliest of the expiration
of the sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate
as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, P.J. & McFarland, J.: Concur in Judgment Only.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.