State v. Shelton

[Cite as State v. Shelton, 2019-Ohio-1694.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 18CA011368
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY SHELTON COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 18CR097694
DECISION AND JOURNAL ENTRY
Dated: May 6, 2019
HENSAL, Judge.
{¶1} Anthony Shelton appeals his sentence for aggravated robbery in the Lorain
County Court of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} Along with two others, Mr. Shelton participated in the armed robbery of a gas
station convenience store. Following his arrest, Mr. Shelton pleaded guilty to one count of
aggravated robbery. After the State requested that the court sentence Mr. Shelton to at least four
years imprisonment, it sentenced him to five. Mr. Shelton has appealed, challenging his
sentence.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT FAILED TO CONSIDER WHETHER ITS SENTENCE
UTILIZED THE MINIMUM SANCTIONS NECESSARY TO ACCOMPLISH
THE GOALS OF SENTENCING WITHOUT UNNECESSARILY
BURDENING GOVERNMENTAL RESOURCES.
2
{¶3} Mr. Shelton argues that the trial court failed to consider whether the sentence it
imposed was the minimum necessary to accomplish the goals of sentencing. He notes that he
accepted responsibility for his participation in the robbery. He also notes that the court indicated
that, if he does well in prison, it would look very favorably on a motion for judicial release. He
notes that, because his sentence is five years, he is not eligible for judicial release until he serves
four years. If the court had sentenced him to four years, however, he would be eligible for
judicial release after 180 days. According to Mr. Shelton, a sentence of four years, as the State
suggested, would have provided the court with more flexibility about when he was rehabilitated
enough to be released.
{¶4} In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant
statutes[,]” or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St. 3d
516, 2016-Ohio-1002, ¶ 1. 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.
{¶5} A sentencing court has “full discretion to impose a prison sentence within the
statutory range” and is not “required to make findings or give their reasons for imposing * * *
more than the minimum sentence[ ].” State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856,
paragraph seven of the syllabus.
[N]evertheless, in exercising its discretion, the court must carefully consider the
statutes that apply to every felony case. Those include R.C. 2929.11, which
specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance
3
in considering factors relating to the seriousness of the offense and recidivism of
the offender.
State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, ¶ 38.
{¶6} Mr. Shelton argues that the trial court failed to properly consider Revised Code
Section 2929.11(A), which provides that the purpose of felony sentencing is to “protect the
public from future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender[.]” It also provides that the sentencing court should use
“the minimum sanctions that the court determines accomplish those purposes without imposing
an unnecessary burden on state or local government resources.” R.C. 2929.11(A). Mr. Shelton
acknowledges that the trial court stated that it had considered Section 2929.11, but questions
whether it followed the section’s directives.
{¶7} Upon review of the appellate record, we note that the presentence investigation
(PSI) report that was discussed during the sentencing hearing has not been made part of the
record. “It is the appellant’s responsibility to ensure that the record on appeal contains all
matters necessary to allow this Court to resolve the issues on appeal.” State v. Yuncker, 9th Dist.
Medina No. 14CA0068-M, 2015-Ohio-3933, ¶ 17, citing App.R. 9. “[If] an appellant does not
provide a complete record to facilitate our review, we must presume regularity in the trial court’s
proceedings and affirm.” State v. McGowan, 9th Dist. Summit No. 27092, 2014-Ohio-2630, ¶ 6,
quoting State v. Taylor, 9th Dist. Lorain Nos. 13CA010366, 13CA010367, 13CA010368,
13CA010369, 2014-Ohio-2001, ¶ 6.
{¶8} The information contained in the PSI report would have directly influenced the
court’s assessment of the minimum sentence required to fulfill the purposes of felony sentencing.
Accordingly, without the context that the PSI report might provide, we cannot conclude that
4
there is clear and convincing evidence in the record that Mr. Shelton’s sentence is contrary to
law. R.C. 2953.08(G)(2). Mr. Shelton’s assignment of error is overruled.
III.
{¶9} Mr. Shelton’s assignment of error is overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
5
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
GERALD M. SMITH, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.