State v. Foster , 2013 Ohio 2199 ( 2013 )

[Cite as State v. Foster, 2013-Ohio-2199.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98869
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RONALD FOSTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-556414
BEFORE: Rocco, J., Stewart, A.J., and Keough, J.
RELEASED AND JOURNALIZED: May 30, 2013
ATTORNEY FOR APPELLANT
Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, OH 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
Adam Chaloupka
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Ronald Foster appeals from his sentences for receiving
stolen property, failure to comply with the order of a police officer (“failure to comply”),
and endangering children. Foster sets forth two assignments of error, both of which
allege that the trial court failed to make necessary findings before rendering the sentences.
Finding no merit to either assignment of error, we affirm the trial court’s final judgment.
{¶2} Foster was charged on a multiple-count indictment, and, ultimately, he
pleaded guilty to three of the counts: one count of receiving stolen property, a violation of
R.C. 2913.51(A) and a fourth-degree felony; one count of failure to comply, a violation of
R.C. 2921.331(B) and a fourth-degree felony; and one count of endangering children, a
violation of R.C. 2919.22(A) and a first-degree misdemeanor. The remaining counts
were nolled. The trial court sentenced Foster to a prison sentence of 18 months for
receiving stolen property, 18 months for failure to comply, and 180 days for child
endangerment. The trial court merged the 180-day sentence with the other two sentences
but ordered that the two 18-month sentences would run consecutively to each other, for a
total of 36
months imprisonment.1 It is from these sentences that Foster now appeals,
1
Foster’s appeal stems from Case No. CR-556414. He was separately
indicted in Case No. CR-561516, and when he entered guilty pleas in Case No.
CR-556414, he also pleaded guilty to certain charges in Case No. CR-561516. The
trial court sentenced Foster in both cases on the same day, and the sentences in
each case were ordered to be served consecutively. The instant appeal involves
only the sentences imposed in Case No. 556414.
setting forth two assignments of error for our review:
I. The trial court erred in sentencing Foster, because it failed to make the
requisite findings under R.C. 2921.331.
II. The trial court erred in sentencing Foster to maximum consecutive
sentences for receiving stolen property and failure to comply.
{¶3} In his first assignment of error, Foster argues that the trial court erred in
failing to make necessary findings under R.C. 2921.331 before sentencing Foster for
failure to comply. Foster is mistaken, because the provision he relies on is inapplicable
in this case.
{¶4} Under R.C. 2921.331(C)(5)(b), the trial court is required to consider a
number of factors in rendering its sentence for failure to comply “[i]f a police officer
pursues an offender who is violating division (B) of this section and division (C)(5)(a) of
this section applies * * *.” Foster was convicted under R.C. 2921.331(B), so the trial
court was required to consider the factors if division (C)(5)(a) applied. R.C.
2921.331(C)(5)(a) pertains to a failure-to-comply violation only if it is a third-degree
felony. Foster was indicted for and pleaded guilty to a fourth-degree felony for failure to
comply. Accordingly, division (C)(5)(a) did
not apply, and the trial court was not required to consider the factors enumerated in R.C.
2921.331(C)(5)(b) before rendering its sentence for failure to comply. Foster’s argument
is wholly without merit, and we overrule the first
assignment of error.
{¶5} In his second assignment of error, Foster argues that the trial court erred in
imposing the maximum consecutive sentences for failure to comply and for receiving
stolen property. Foster concedes that on the facts of this case, R.C. 2921.331(D) applies,
which mandated that the trial court impose consecutive sentences for failure to comply
and receiving stolen property. R.C. 2921.331(D) provides that “[i]f an offender is
sentenced pursuant to division (C)(4)2 or (5) of this section for a violation of division (B)
of this section, and if the offender is sentenced to a prison term for that violation, the
offender shall serve the prison term consecutively to any other prison term or mandatory
prison term imposed upon the offender.” (Emphasis added.) Foster argues that,
nonetheless, the trial court was required to make findings under R.C. 2929.14(C)(4)
before imposing the consecutive sentences on Foster. We disagree.
{¶6} R.C. 2929.14(C)(4) provides trial courts with discretion to impose
consecutive sentences under certain circumstances, and requires trial courts to make
specific findings before exercising that discretion. In contrast, under R.C. 2921.331(D),
the trial court lacked discretion; rather, the trial court was required to impose the
consecutive sentences. Accordingly, the trial court did not need to make findings under
R.C. 2929.14(C)(4) before imposing consecutive sentences on Foster.
{¶7} Foster also argues under this assignment of error that the trial court did not
adequately consider the R.C. 2929.12 factors when rendering its sentences for receiving
stolen property and for failure to comply. Foster’s argument here is not an argument
R.C. 2921.331(C)(4) pertains to fourth-degree felonies for failure to comply.
2
against consecutive sentences, but, rather, an argument as to the length of those sentences.
{¶8} When a defendant argues that his sentence was imposed erroneously, our task
is to meaningfully review the trial court’s sentencing decision. State v. Goins, 8th Dist.
No. 98256, 2013-Ohio-263, ¶ 6. An appellate court may modify or vacate a sentence
only if it is clearly and convincingly contrary to law. R.C. 2953.08(G)(2). We conclude
that the trial court engaged in a thorough analysis of the R.C. 2929.12 factors when
rendering Foster’s sentences, and we do not find the sentence clearly and convincingly
contrary to law.
{¶9} R.C. 2929.11(A) sets forth that when a trial court sentences an offender for a
felony conviction it must be guided by the “overriding purposes of felony sentencing.”
Those purposes 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,” while ensuring that the sentence does not “impos[e] an
unnecessary burden on state or local government resources.” Id. In order to fulfill this
purpose, the trial court must “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.” Id. R.C. 2929.11(B) states
that a felony sentence must also “be reasonably calculated to * * * [be] commensurate
with and not demeaning to the seriousness of the crime and its impact on the victim, and
consistent with sentences imposed for similar crimes committed by similar offenders.”
Finally, R.C. 2929.12 sets forth a nonexhaustive list of factors that a trial court must
consider when rendering its sentence so as to determine the seriousness of the offense and
the likelihood of recidivism.
{¶10} Although a trial court is not required to use “‘talismanic words to comply
with the guidelines and factors for sentencing,’” it must be clear from the record that the
trial court actually made the required statutory findings. State v. Matthews, 8th Dist. No.
97916, 2012-Ohio-5174, ¶ 48, quoting State v. Brewer, 1st Dist. No. C-000148, 2000
Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). The requirements are satisfied “when the
record reflects that the court has engaged in the required analysis and has selected the
appropriate statutory criteria.” Matthews.
{¶11} In the instant case, the trial court imposed the maximum sentences, and
stated on the record that, in doing so, it was considering the R.C. 2929.12 factors. First,
the trial court found that “this is one of the worst forms of the offense * * *.” Tr. 28. In
support of this statement the trial court noted that Foster had “[his] young children in the
car; that [he] almost hit a school bus filled with children, that [his] car spun out, almost
hitting other cars in the street; that [he] took off at a high rate of speed,” and then he “ran
away, le[aving] [his] two seven-month-old twins to fend for themselves.” Tr. 28. The
trial court next considered the seriousness of the offense under R.C. 2929.12(B) stating
that “[Foster’s] children did suffer harm in this matter, they were thrown out of their car
seats, in between the seats.” Tr. 29. The trial court found that none of the other R.C.
2929.12(B) factors applied. Id. The trial court also considered the mitigation factors set
forth under R.C. 2929.12(C) and found that “[t]here are no substantial grounds that
mitigate your conduct.” Id.{¶12} Turning to R.C. 2929.12(D), the trial court considered the likelihood of
recidivism and found that Foster had “a history of criminal convictions” and that “[he]
ha[d] not responded favorably to sanctions previously imposed.” Id. at 30. The trial
court noted that Foster had three previous cases, “one of which [the trial court] believe[d]
[Foster] w[as] on probation for, [Foster] violated that by picking up the other cases * *
*,” and a prison sentence had been imposed. Id. The trial court also noted that Foster
demonstrated a pattern of alcohol and drug-related offenses. After summarizing the
factors making recidivism more likely, the trial court found only one factor making
recidivism less likely: that Foster appeared to show genuine remorse now that he was
sober. Id. Ultimately, “[t]hat [was] not enough for [the trial court] to overcome giving
[Foster] what [it] believed was an appropriate sentence in this matter.” Id.
{¶13} As the foregoing illustrates, when rendering its sentences, the trial court
properly considered the seriousness of the offenses and the risk of recidivism, as required
under R.C. 2929.12; and the sentences imposed comported with the sentencing purposes
set forth in R.C. 2929.11. In short, the trial court touched every base in what was a very
thorough sentencing hearing. Accordingly, the second assignment of error is without
merit.
{¶14} The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
____________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR