State v. Broder , 2019 Ohio 4134 ( 2019 )

[Cite as State v. Broder, 2019-Ohio-4134.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-T-0002
- vs - :
ARTEUM PATRICK BRODEUR, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR
00439.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Thomas Rein, 820 West Superior Avenue, Suite 800, Cleveland, OH 44113 (For
Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Arteum Patrick Brodeur, appeals from his
sentence for Voluntary Manslaughter in the Trumbull County Court of Common Pleas.
The issue to be determined in this case is whether a court errs when it states that it has
considered the purposes and principles of sentencing and pertinent sentencing factors
but fails to explain the rationale behind giving a greater than minimum sentence and
discuss each seriousness and recidivism factor. For the following reasons, we affirm
the decision of the lower court.
{¶2} On July 13, 2017, Brodeur was indicted by the Trumbull County Grand
Jury for two counts of Murder, unclassified felonies, in violation of R.C. 2903.02(A) and
(B), and one count of Tampering with Evidence, a felony of the third degree, in violation
of R.C. 2921.12(A)(1).
{¶3} A change of plea hearing was held on March 28, 2018, at which Brodeur
entered a guilty plea to an amended count of Voluntary Manslaughter, a felony of the
first degree, in violation of R.C. 2903.03(A). As a factual basis, the State explained that
Brodeur stabbed the victim following a dispute over the victim’s girlfriend. A Nolle
Prosequi was entered on the remaining counts of the Indictment. A Finding on Guilty
Plea to the Amended Indictment was filed on the same date.
{¶4} The court held a sentencing hearing on May 23, 2018. Brodeur
apologized to the family of the victim. The State recommended a sentence of 11 years
in prison. The court stated that Brodeur made “wrong decisions,” but recognized that,
from reviewing the PSI report, Brodeur had a “very rough life.” The court also noted that
he had prior felony convictions and a probation violation. Brodeur was ordered to serve
a term of eight years in prison, which was memorialized in the court’s May 30, 2018
Judgment Entry on Sentence.1 In the entry, the court stated that it considered the
purposes and principles of sentencing and the seriousness and recidivism factors
pursuant to R.C. 2929.11 and .12.
{¶5} Brodeur subsequently moved this court for leave to file a delayed appeal,
which motion was granted. On appeal, Brodeur raises the following assignment of
error:
{¶6} “The record clearly and convincingly fails to support the imposition of more
1. The court issued an Amended Entry on June 4, 2018, which corrected a typographical error.
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than a minimum sentence upon Appellant.”
{¶7} “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). “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 * * * if it
clearly and convincingly finds either * * * (a) [t]hat the record does not support the
sentencing court’s findings under division * * * (B) or (D) of section 2929.13 * * * [or] (b)
[t]hat the sentence is otherwise contrary to law.” Id.{¶8} “[A]n appellate court may vacate or modify any sentence that is not clearly
and convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.” State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
{¶9} Brodeur argues that the trial judge failed to give meaningful consideration
to the R.C. 2929.12 factors and “gave no legal basis or explanation for not imposing a
minimum sentence.” He also contends that the court did not mention the R.C. 2929.11
or .12 factors at the sentencing hearing and only did so in the sentencing entry.
{¶10} Pursuant to R.C. 2929.11(A), “[a] court that sentences an offender for a
felony shall be guided by the overriding purposes of felony sentencing * * * [which] are
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 using the minimum
sanctions that the court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources.” The court shall consider
the need for incapacitation, deterrence, rehabilitation, and restitution. Id. In determining
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“the most effective way to comply with the purposes and principles of sentencing,” a trial
court must consider factors relating to the seriousness of the conduct and the likelihood
of the offender’s recidivism, as well as any other relevant factors. R.C. 2929.12(A).
{¶11} As to consideration of the statutory factors, it must be recognized that “in
sentencing a defendant for a felony, ‘a court is merely required to “consider” the
purposes and principles of sentencing in R.C. 2929.11 and the statutory * * * factors set
forth in R.C. 2929.12,’” not make “specific findings or use specific language.” (Citation
omitted.) State v. Brown, 11th Dist. Lake No. 2014-L-075, 2015-Ohio-2897, ¶ 34; State
v. Jackson, 11th Dist. Lake No. 2014-L-124, 2015-Ohio-2608, ¶ 21. Although not
required to do so, the trial court demonstrated its consideration of the factors by stating
in its sentencing entry that it had considered the purposes and principles of sentencing
under R.C. 2929.11 and balanced the seriousness and recidivism factors under R.C.
2929.12. While Brodeur emphasizes that the trial court did not mention these factors at
the sentencing hearing, it was not required to do so. State v. Kamleh, 8th Dist.
Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61 (“[a]lthough the court did not specifically
reference the relevant statutory guidelines during the sentencing, its journal entry
imposing sentence” stating that it considered them fulfilled the court’s obligation).
{¶12} Nonetheless, at the sentencing hearing the court specifically emphasized
Brodeur’s criminal history of felony offenses as well as a probation violation, noted that
it had considered the facts of the offense, and recognized Brodeur’s difficult past. In
sum, the court demonstrated that it had considered the statements made at sentencing
and the PSI report and applied these to the statutory factors, which include a
defendant’s past criminal conduct. Brodeur fails to point to anything in the record
showing the court ignored the seriousness and recidivism factors. “It is the burden of
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the defendant to show a sentencing court did not balance the R.C. 2929.12 factors,” or
that the imposed sentence is “‘strikingly inconsistent’ with the factors in R.C. 2929.11
and R.C. 2929.12 as they apply to this case.” (Citations omitted.) State v. Sprott, 11th
Dist. Ashtabula No. 2016-A-0066, 2017-Ohio-1508, ¶ 16. Brodeur has failed to meet
that burden.
{¶13} In support of his position that the court did not comply with the purposes of
sentencing or consider the requisite factors, Brodeur cites State v. Jones, 8th Dist.
Cuyahoga Nos. 103290 and 103302, 2016-Ohio-5923, in which the court found that,
given the existence of extensive mitigating factors in relation to involuntary
manslaughter and child endangering convictions and the lack of factors showing an
increased risk of recidivism, the defendants’ sentences must be vacated. Id. at ¶ 108-
113. Even presuming the legal analysis in the Jones opinion to be correct and
applicable, Jones is distinguishable given the circumstances of the crimes and, in
particular, the defendants’ lack of criminal records. To the extent that Brodeur argues,
that, although he had a criminal record, “relative to many other defendants in the Ohio
criminal justice system, [his criminal record] was not the worst,” we emphasize that
courts are not required to conduct a case-by-case comparison to arrive at a sentence
that is consistent with other defendants. State v. Sari, 11th Dist. Lake No. 2016-L-109,
2017-Ohio-2933, ¶ 52. Rather, the sentencing court need only apply the statutory
sentencing guidelines which the trial court did in the present case. See State v.
Simpson, 11th Dist. Lake No. 2016-L-014, 2016-Ohio-7746, ¶ 28.
{¶14} Brodeur also argues that the court gave no legal basis or explanation for
its decision to impose a greater than minimum sentence. The Ohio Supreme Court has
held that “[t]rial courts have full discretion to impose a prison sentence within the
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statutory range and are no longer required to make findings or give their reasons for
imposing maximum * * * or more than the minimum sentences.” State v. Mathis, 109
Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. There is
no question that the court sentenced Brodeur within the proper range and it was not
required to specifically state its rationale for ordering a greater than minimum sentence.
{¶15} Finally, Brodeur argues that “the record clearly and convincingly
demonstrates that the imposition of a maximum penalty is unwarranted, and does not
serve the requirement of R.C. 2929.11 that a sentence ‘use the minimum sanctions that
the court [determines accomplish the purposes of R.C. 2929.11] without imposing an
unnecessary burden on state or local government resources.’” Brodeur did not receive
the maximum penalty for Voluntary Manslaughter, which is 11 years in prison. R.C.
2929.14(A)(1)(a) (prison terms imposed for a first degree felony shall be “three, four,
five, six, seven, eight, nine, ten, or eleven years”). Further, there is nothing in the
record to demonstrate a lack of compliance with R.C. 2929.11 for the reasons
discussed above.
{¶16} The sole assignment of error is without merit.
{¶17} For the foregoing reasons, Brodeur’s sentence for Voluntary Manslaughter
in the Trumbull County Court of Common Pleas is affirmed. Costs to be taxed against
appellant.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.
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