State v. Dildine , 2018 Ohio 1771 ( 2018 )

[Cite as State v. Dildine, 2018-Ohio-1771.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-17-40
v.
LISLE D. DILDINE, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 17 02 0026
Judgment Affirmed
Date of Decision: May 7, 2018
APPEARANCES:
Samantha L. Berkhofer for Appellant
David A. Walsh for Appellee
Case No. 8-17-40
ZIMMERMAN, J.
{¶1} Defendant-appellant, Lisle Dildine (“Dildine”), appeals the September
28, 2017 judgment entry of the Logan County Common Pleas Court sentencing him
to fifty-four months in prison. On appeal, Dildine argues that the trial court failed
to follow the sentencing criteria set forth in Ohio Revised Code Chapter 2929. For
the reasons set forth below, we affirm the judgment of the trial court.
{¶2} On April 11, 2017, Dildine was indicted on four criminal charges in
Logan County: Count One, Theft of Drugs, in violation of R.C. 2913.02(A)(1), a
felony of the fourth degree; Count Two, Aggravated Possession of Drugs, in
violation of R.C. 2925.11(A), a felony of the fifth degree; Count Three, Aggravated
Possession of Drugs, in violation of R.C. 2929.11(A), a felony of the third degree;
and Count Four, Possession of Drugs, in violation of R.C. 2911.11(A), a
misdemeanor of the first degree. (Doc. 4).
{¶3} At his arraignment on April 14, 2017, Dildine entered a plea of not
guilty on all charges. (Doc. 10). However, on August 28, 2017, Dildine changed
his pleas to two of the four charges at a change of plea hearing in the trial court. At
that hearing, Dildine acknowledged executing a Petition to Enter a Guilty or No
Contest Plea, which was admitted into evidence (Exhibit A), and entered pleas of
guilty to Counts One and Three of the indictment. (Doc. 25). After Dildine pled,
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the State moved to dismiss Counts Two and Four. The trial court accepted Dildine’s
guilty pleas and ordered a Pre-Sentence Investigation. (Id).
{¶4} A sentencing hearing was held in the trial court on September 28, 2017
wherein Dildine was sentenced to eighteen months in prison on Count One and
thirty-six months in prison on Count Three. The trial court ordered the prison terms
to be served consecutively, for an aggregate sentence of fifty-four months. (Doc.
27).
{¶5} Dildine timely filed a notice of appeal, raising the following assignment
of error.
ASSIGNMENT OF ERROR
WHETHER THE TRIAL COURT ERRED BY FAILING TO
PROPERLY FOLLOW THE SENTENCING CRITERIA SET
FORTH IN OHIO REVISED CODE 2929
{¶6} In his sole assignment of error, Dildine argues that the trial court erred
in sentencing him to maximum consecutive prison terms. Specifically, he contends
that the trial court did not sufficiently indicate which factors it considered, under
Chapter 2929, when handing down its sentences.
Standard of Review
{¶7} A sentence imposed by a trial court will not be disturbed absent a
showing by clear and convincing evidence that the sentence is unsupported by the
record; the procedure of the sentencing statutes was not followed or there was not a
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sufficient basis for the imposition of a prison term; or that the sentence is contrary
to law. State v. Ward, 3d Dist. Crawford No. 3-17-02, 2017-Ohio-8518.
Analysis
{¶8} “ ‘The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than minimum sentences.’ ” State v.
Castle, 2nd Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶26, quoting State v.
King, 2nd Dist. Clark Nos. 2012-CA-25, 26, 2013-Ohio-2021, ¶ 45. Nevertheless,
when exercising its sentencing discretion, a trial court must consider the statutory
policies that apply to every felony offense, including those set out in R.C. 2929.11
and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38.
{¶9} R.C. 2929.11 provides that sentences for a felony shall be guided by the
overriding purposes of felony sentencing: “to protect the public from future crime
by the offender and others and to punish the offender”. R.C. 2929.11(A). In order
to comply with those purposes and principles, R.C. 2929.12 instructs a trial court to
consider various factors set forth in the statute relating to the seriousness of the
offender’s conduct and to the likelihood of the offender’s recidivism. R.C.
2929.12(A) through (D). In addition, a trial court may consider any other factors
that are relevant to achieving the purposes and principles of sentencing. R.C.
2929.12(E). State v. Alselami, 3d Dist. Hancock No. 5-11-31, 2012-Ohio-987, ¶22.
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{¶10} In the case sub judice, Dildine was convicted of two felonies: a felony
of the fourth degree and a felony of the third degree. R.C. 2929.14(A)(4) provides
“[f]or a felony of the fourth degree, the prison term shall be six, seven, eight, nine,
ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen
months”. Furthermore, R.C. 2929.14(A)(3)(b) provides “[f]or felony of the third
degree * * *, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or
thirty-six months”. Thus, the trial court’s sentences (of 18 months and 36 months)
were within the statutory range for felonies of the fourth and third degrees and were
not contrary to law as argued by the appellant.
{¶11} Further, in its sentencing entry, the trial court stated that it had
considered the “principles and purposes of sentencing under Ohio Revised Code
§2929.11 and §2929.12 and §2921.331(C)(5)(a) and (b)” and “the need for
deterrence, incapacitation, rehabilitation and restitution”. (Doc. 27). The trial
court’s entry also stated that it considered the information provided to the court in
the Presentence Investigation.
{¶12} Additionally, the trial court’s entry contained the following findings:
“The Court finds that consecutive sentences are necessary to
protect the public from future crime and/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. The offender committed one or more
of the multiple offenses while the offender was awaiting trial or
sentencing, was under a sanction imposed pursuant to section
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2929.16, 2929.17, or 2929.18 of the Revised Code, or was under
post-release control for a prior offense.”
{¶13} Nevertheless, Dildine argues that the trial court should have provided
more specific reasoning as to the sentencing factors, under chapter 2929, when
sentencing him. We disagree. Our review of the record reveals that the trial court
explicitly considered R.C. 2929.11 in its sentencing of Dildine. Additionally, even
though the trial court did not list the specific factors set forth in R.C. 2929.12 in its
sentencing entry, the trial court did consider many of those factors in sentencing
Dildine, including: his extensive criminal history; his failure to respond to previous
attempts at community control; and the need to protect the public from Dildine’s
criminal behavior.
{¶14} Moreover, at the sentencing hearing, the trial court further stated:
“[I]t appears defendant has been on community control for felony
conviction at least five times, with a sixth case after having pled
to a misdemeanor. He has had his community control revoked
and served time in prison on three occasions. This offense was
committed while he was under supervision of no fewer than two
counties Morrow and Delaware.
The defendant has an ORAS score of 28, which is high risk. The
PSI conclusion is that this defendant is not amenable to available
community control sanctions. That’s quite apparent. He’s
already on probation in two other counties and here we are. He’s
previously served prison time. This is his sixth felony conviction.”
(Sept. 28, 2017 Tr. Pg. 8). And:
“Deterring this defendant in the past has not worked.
Rehabilitation efforts have not worked. So incapacitation to
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protect society is probably the justification for imposing the
sentence that the Court intends.
I believe that that is a permissible purpose. I believe that my
objective in protecting the public is consistent with how I would
treat like offenders committing similar offense. I believe that the
sentence is proportional to the harm caused, particularly in light
of the seriousness of the offense. Theft and drugs and your
recidivism is quite apparent.”
(Sept. 28, 2017 Tr. Pg. 10-11).
{¶15} Thus, we find the trial court considered multiple statutory sentencing
factors as set forth in R.C. 2911. As such, Dildine is unable to demonstrate that the
sentences of the trial court were clearly and convincingly contrary to law.
{¶16} Therefore, because we find that the trial court considered the statutory
factors and that the sentences were within the statutory range, we cannot find that
the trial court erred in sentencing Dildine. Accordingly, Dildine’s argument is not
well-taken and his sole assignment of error is overruled.
{¶17} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Logan County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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