State v. Bromagen

[Cite as State v. Bromagen, 2012-Ohio-5757.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120148
TRIAL NO. B-1107279
Plaintiff-Appellee, :
vs. :
MATTHEW BROMAGEN, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 7, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Rhett Baker, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Defendant-appellant Matthew Bromagen appeals the sentences imposed
following his pleas of guilty to charges of robbery and tampering with evidence. Near
midnight on October 31, 2011, Bromagen had pulled a knife on his victim in the parking
lot of the Colerain Bowl and demanded money. The victim was able to escape. Bromagen
fled too. While being pursued by police officers, he discarded the knife.
{¶2} In exchange for his guilty pleas, the state dismissed a charge of aggravated
robbery. The trial court accepted Bromagen’s pleas and found him guilty of the two
offenses. After reviewing the presentence investigation, the victim’s statements,
Bromagen’s statement, and the arguments of counsel, the trial court imposed an eight-
year prison term for the robbery offense and a three-year term for the tampering-with-
evidence offense. The trial court also completed and journalized a sentencing-findings
worksheet for these offenses. The worksheet reflects that the trial court had made the
findings required for imposing consecutive sentences under R.C. 2929.14(C). The trial
court ordered the two prison terms to be served consecutively for an aggregate term of 11
years.
{¶3} In three interrelated assignments of error, Bromagen now claims the trial
court erred in imposing consecutive sentences and an excessive period of imprisonment.
We conduct a two-part review of Bromagen’s sentences of imprisonment, imposed under
2011 Am.Sub.H.B. No. 86. See State v. Alexander, 1st Dist. Nos. C-110828 and C-110829,
2012-Ohio-3349, ¶ 9, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, ¶ 14; see also State v. Railey, 1st Dist. No. C-120029, 2012-Ohio-4244, ¶ 16.
First, we must determine whether the trial court adhered to all applicable rules and
statutes in imposing the sentences, or whether the sentences were otherwise contrary to
law. See Alexander at ¶ 9; see also State v. Smith, 12th Dist. No. CA2012-01-004, 2012-
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Ohio-4523, ¶ 27. Then, if the sentences were not contrary to law, we must review each to
determine whether the trial court abused its discretion in imposing them. See id.{¶4} Bromagen asserts the sentences were contrary to law in three ways. First,
Bromagen contends that, with no evidence of adult criminal activity in the record, the trial
court erred in relying solely on his numerous juvenile-delinquency adjudications to
support the imposition of consecutive sentences.
{¶5} Alerted by the presentence-investigation report, at the sentencing hearing
the trial court noted Bromagen’s extensive record of delinquency adjudications and
lengthy placement in a juvenile-correction facility. In reaching its determination that it
was appropriate to impose consecutive sentences, the trial court employed a sentencing-
findings worksheet and found, inter alia, that Bromagen’s “history of criminal conduct
demonstrate[ed] that consecutive sentences [were] necessary to protect the public from
future crime by the offender.” R.C. 2929.14(C)(4)(c); see also Alexander at ¶ 13; State v.
Lebron, 8th Dist No. 97773, 2012-Ohio-4156, ¶ 11.
{¶6} Bromagen now urges us to revisit our well-established position that
“juvenile adjudications may be considered for purposes of examining the likelihood of [an
adult offender’s] recidivism.” State v. Deters, 163 Ohio App.3d 157, 2005-Ohio-4049, 837
N.E.2d 381, ¶ 24 (1st Dist.), overruling State v. Montgomery, 159 Ohio App.3d 752, 2005-
Ohio-1018, 825 N.E.2d 250 (1st Dist.) (holding that juvenile-delinquency adjudications
could not be used to support a finding that a prison term would not adequately protect the
public from future crime by the offender or would demean the seriousness of the crime).
The gravamen of Bromagen’s argument is that a juvenile-delinquency adjudication is “not
the same as a criminal conviction,” and thus cannot be used to support the criminal-
conduct finding for consecutive sentences. Montgomery at ¶ 13. We disagree.
{¶7} In Deters, we held that a trial court could consider a defendant’s juvenile-
delinquency adjudications when deciding whether to impose greater than the minimum
sentence under former R.C. 2929.14(B)(2). See Deters at ¶ 24. That statutory
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OHIO FIRST DISTRICT COURT OF APPEALS
requirement was excised from Ohio’s felony-sentencing scheme in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 97-99. But the court did not address
whether juvenile adjudications could be used as evidence of a history of criminal conduct.
Thus, this court and other appellate courts have continued to employ juvenile-delinquency
adjudications to support the imposition of consecutive sentences in cases decided after
Foster. E.g., State v. Love, 194 Ohio App.3d 16, 2011-Ohio-2224, 954 N.E.2d 202, ¶ 8 (1st
Dist.); see also State v. Daniel, 5th Dist. No. 11-COA-047, 2012-Ohio-2952; State v.
Bonner, 8th Dist. No. 97747, 2012-Ohio-2931, ¶ 8.
{¶8} We see no reason to depart from this course. As Bromagen correctly
notes, a juvenile-delinquency adjudication is not a criminal conviction. See In re Angler,
19 Ohio St.2d 70, 73, 249 N.E.2d 808 (1969); see also State v. D.W., __ Ohio St.3d __,
2012-Ohio-4544, __ N.E.2d __, ¶ 7. But it does not necessarily follow from that
statement that juvenile adjudications cannot be used to demonstrate a history of criminal
conduct. If, as Bromagen argues, the General Assembly had intended to limit a sentencing
court’s review of prior actions to criminal convictions, it could have done so. But the
legislature, in both former R.C. 2929.14(E)(4)(c) and newly enacted R.C. 2929.14(C)(4)(c),
at issue here, has stated that “an offender’s history of criminal conduct” can support the
imposition of consecutive sentences. We must give effect to the words the General
Assembly actually used. In determining legislative intent, we are not free to delete words
or insert words not used. See State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935
N.E.2d 26, ¶ 22, citing Columbus-Suburban Coach Lines, Inc. v. Pub. Utilities Comm., 20
Ohio St.2d 125, 127, 254 N.E.2d 8 (1969).
{¶9} While juvenile court proceedings are civil in nature, delinquency
proceedings nonetheless “feature inherently criminal aspects that [courts] cannot ignore.”
In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 76; State v. Walls, 96
Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 26. As in a criminal proceeding, the
fundament of every delinquency adjudication is the commission of conduct by the juvenile
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OHIO FIRST DISTRICT COURT OF APPEALS
which would constitute a criminal offense if committed by an adult. See R.C.
2152.02(F)(1); see also State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909
N.E.2d 1254, ¶ 54, citing In re C.S. at ¶ 76. Clearly an offender’s prior criminal conduct
bears directly on a sentencing court’s decision on the length of sentence to impose. And a
sentencing court is entitled to rely on an offender’s juvenile history of criminal conduct in
deciding whether consecutive sentences are necessary.
{¶10} Also contrary to Bromagen’s assertion, that sentencing courts should close
their eyes to juvenile-delinquency adjudications, is the General Assembly’s mandate that a
sentencing court is required to consider juvenile adjudications when it determines the
likelihood of an adult offender’s recidivism. See R.C. 2929.12(A). Factors that a
sentencing court shall consider in reaching a conclusion about an offender’s likelihood to
commit future crimes include that “the offender previously was adjudicated a delinquent
child,” and that “the offender has not been rehabilitated to a satisfactory degree after
previously being adjudicated a delinquent child.” R.C. 2929.12(D)(2) and 2929.12(D)(3);
see also State v. Pennington, 12th Dist. No. CA2005-11-481, 2006-Ohio-5376, ¶ 13.
{¶11} Moreover, the statutes guiding a court’s actions at sentencing also require
the court to scrutinize an offender’s juvenile record if, as here, it was included in a
presentence-investigation report. Under R.C. 2929.10(B)(1), before imposing sentence, a
trial court is required to consider a presentence-investigation report, if one was prepared.
The presentence-investigation report in a felony case shall include “all information
available regarding any prior adjudications of the defendant as a delinquent child and
regarding the dispositions made relative to those adjudications.” R.C. 2951.03(A)(1).
{¶12} Therefore, we hold that the record, including Bromagen’s extensive
juvenile record of adjudications for arson, attempted burglary, criminal damaging, and
assaulting a corrections officer—evidence of his history of criminal conduct—amply
supports the trial court’s finding that consecutive sentences were necessary to protect the
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OHIO FIRST DISTRICT COURT OF APPEALS
public from future crime by Bromagen. See R.C. 2953.08(G)(2); see also Alexander at ¶
10.
{¶13} Bromagen’s next argument, that the jury-trial guarantee of the Sixth
Amendment to the United States Constitution precludes the trial court from engaging in
judicial fact-finding to impose consecutive sentences, is rejected on the authority of State
v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, paragraph one of the
syllabus. See State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶ 19-20.
{¶14} Finally, Bromagen argues that the sentence imposed for the tampering-
with-evidence offense was contrary to law under R.C. 2929.14(A)(3)(b), as revised by 2011
Am.Sub.H.B. No. 86. In the trial court’s judgment entry the prison term for that offense
was identified as “3 Y[ea]rs,” as opposed to the “thirty-six month” term stated in the
statute. This argument is feckless. For purposes of felony sentencing, a three-year prison
term imposes the same period of incarceration as a thirty-six-month term, and is,
therefore, not contrary to law. See State v. Shepherd, 8th Dist. No. 97962, 2012-Ohio-
5415, ¶ 85.
{¶15} Having determined that the sentences imposed were not contrary to law,
we now proceed to the second step of our sentencing analysis: whether the trial court
abused its discretion in imposing them. See Alexander, 1st Dist. Nos. C-110828 and C-
110829, 2012-Ohio-3349, at ¶ 27. In light of the seriousness of Bromagen’s conduct,
robbing his victim at knifepoint, and his discouraging record of juvenile adjudications and
failed attempts at rehabilitation, we cannot say that the trial court abused its discretion in
imposing sentence. See Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶
17. The first, second, and third assignments of error are overruled.
{¶16} Therefore, the trial court’s judgment is affirmed.
Judgment affirmed.
SUNDERMANN, P.J., and HENDON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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