State v. Pearce , 2012 Ohio 1348 ( 2012 )

[Cite as State v. Pearce, 2012-Ohio-1348.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. 11-COA-027
GREGORY A. PEARCE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas, Case No. 11-CRI-014
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 19, 2012
APPEARANCES:
For Appellant: For Appellee:
ERIN N. POPLAR RAMONA FRANCESCONI ROGERS
Erin N. Poplar Law, LLC ASHLAND COUNTY PROSECUTOR
1636 Eagle Way
Ashland, OH 44805 PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage St., 3rd Floor
Ashland, OH 44805
[Cite as State v. Pearce, 2012-Ohio-1348.]
Delaney, P.J.
{¶1} Defendant-appellant Gregory A. Pearce appeals the June 24, 2011
sentencing entry of the Ashland County Court of Common Pleas. Plaintiff-appellee is
the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 25, 2011, Pearce was indicted by the Ashland County
Grand Jury on five counts of Trafficking in Cocaine in violation of R.C. 2925.03(A)(1),
one count of Trafficking in Heroin in violation of R.C. 2925.03(A)(2), one count of
Possession of Heroin in violation of R.C. 2925.11(A), one count of Possession of Drug
Instruments in violation of R.C. 2929.12(A), and one count of Possession of Drug
Paraphernalia in violation of R.C. 2925.14(C)(1).
{¶3} Pearce entered a not guilty plea to all charges. On April 26, 2011,
Pearce changed his plea to guilty to Count I, Trafficking in Cocaine, a felony of the
fourth degree; Count III, Trafficking in Cocaine, a felony of the fifth degree; Count VI,
Trafficking in Heroin, a felony of the fourth degree; Count VIII, Possession of Drug
Abuse Instruments, a second degree misdemeanor; and Count IX, Possession of Drug
Paraphernalia, a fourth degree misdemeanor. The trial court granted the State’s
motion to dismiss Counts 2, 4, 5, and 7 of the indictment. The trial court ordered a
pre-sentence investigation and scheduled sentencing on June 20, 2011.
{¶4} At the sentencing hearing, Pearce’s counsel addressed the court before
the imposition of sentence. Counsel spoke to the pre-sentence investigation report,
stating Pearce had approximately 19 years of alcohol and drug-related criminal
violations in his record. Pearce never attended a residential treatment program
Ashland County, Case No. 11-COA-027 3
because his previous violations were misdemeanor offenses. Counsel admitted the
number of trafficking counts was alarming, but that was because the Ashland Police
Department made Pearce’s arrest with a confidential informant. Counsel submitted
that with a presumption against prison and because almost all of Pearce’s offenses
were drug or alcohol related, Pearce would be better served in a residential treatment
program. The State recommended Pearce be sentenced to prison.
{¶5} When sentencing Pearce, the trial court noted there were a number of
recidivism factors that would indicate Pearce was more likely to reoffend. The trial
court stated, “As Mr. Hyde has correctly noted, there are none of the nine factors that
are set forth in Revised Code Section 2929.13(B)(1) with regard to 4th or 5th Degree
felonies or continue to be drug offenses, however, I am finding that based on the
recidivism factors and the fact that you have such a history of criminal activity, I am
finding that prison is consistent with the purposes and principles of the Sentencing
Statutes * * *.” (T. 9.)
{¶6} The trial court went on to sentence Pearce to 18 months on Count I, 12
months on Count III, 18 months on Count VI, 90 days on Count VIII, and 30 days on
Count IX. Count III was ordered to be served concurrently with Count I. Count VI was
ordered to be served consecutively to Counts I and III. The trial court stated with
respect to Count VI, it was appropriate based on Pearce’s criminal history that the
consecutive terms were needed to protect the public and a consecutive term on the
charge was not disproportionate to the purposes and principles set forth to Ohio
sentencing standards. (T. 11.) Counts VIII and Counts IX were ordered to be served
Ashland County, Case No. 11-COA-027 4
concurrently to Counts I, III, and VI. In summary, Pearce was sentenced to serve 36
months in prison.
{¶7} At the conclusion of the hearing, the trial court notified Pearce he had a
right to appeal his sentence because the aggregate sentence exceeded the maximum
prison term allowed under a fourth degree felony. It is based on this Pearce now
appeals.
ASSIGNMENT OF ERROR
{¶8} Pearce raises one assignment of error:
{¶9} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
18-MONTH SENTENCES FOR TWO FOURTH DEGREE FELONY CONVICTIONS
SUCH THAT THE AGGREGATE SENTENCE EXCEED THE MAXIMUM PRISON
TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR THE MOST SERIOUS
OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 18 MONTHS.
ANALYSIS
{¶10} Because Pearce pled guilty to a felony, Pearce appeals his sentence
under R.C. 2953.08(C)(1), which states:
In addition to the right to appeal a sentence granted under division (A) or
(B) of this section, a defendant who is convicted of or pleads guilty to a
felony may seek leave to appeal a sentence imposed upon the defendant
on the basis that the sentencing judge has imposed consecutive
sentences under division (C)(3) of section 2929.14 of the Revised Code
and that the consecutive sentences exceed the maximum prison term
allowed by division (A) of that section for the most serious offense of
Ashland County, Case No. 11-COA-027 5
which the defendant was convicted. Upon the filing of a motion under this
division, the court of appeals may grant leave to appeal the sentence if
the court determines that the allegation included as the basis of the
motion is true.
Pearce is permitted under App.R. 5(D)(2) to incorporate his motion for leave to appeal
in his appellate brief by an assignment of error under R.C. 2953.08(C)(1).
{¶11} Pearce argues the trial court erred in ordering Pearce’s sentences on
Count I and Count VI be served consecutively. Pursuant to R.C. 2929.14(A)(4), the
sentence for a fourth degree felony is six to eighteen months.
{¶12} In a plurality opinion, the Supreme Court of Ohio established a two-step
procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124. The first step is to “examine the sentencing court's
compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.” Kalish at
¶ 4. If this first step “is satisfied,” the second step requires the trial court's decision be
“reviewed under an abuse-of-discretion standard.” Id.{¶13} The relevant sentencing law is now controlled by the Ohio Supreme
Court's decision in State v. Foster, i.e. “ * * * trial courts have full discretion to impose
a prison sentence within the statutory range and are no longer required to make
findings or give their reasons for imposing maximum, consecutive, or more than the
minimum sentences.” 109 Ohio St.3d 1, 30, 2006-Ohio-856, 845 N.E.2d 470.
{¶14} In the first step of our analysis, we review whether the sentence is
contrary to law. Pearce concedes in his appellate brief his sentence was not contrary
Ashland County, Case No. 11-COA-027 6
to law. (Appellant’s Brief, p. 7.) Pearce argues, however, this court should consider
the impact of H.B. 86, effective September 30, 2011, which revised the felony
sentencing guidelines. We decline to adopt Pearce’s argument because Pearce was
sentenced on June 24, 2011, before the effective date of H.B. 86 and H.B. 86 is not
retroactive. State v. Fields, 5th Dist. No. CT11-0037, 2011-Ohio-6044, ¶ 10.
{¶15} We next review the sentence pursuant to the abuse of discretion
standard. Kalish at ¶ 4; State v. Firouzmandi, supra at ¶ 40. In reviewing the record,
we find that the trial court gave careful deliberation to the relevant statutory
considerations. The trial court properly considered the purposes and principles of
sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.
2929.12, along with all other relevant factors and circumstances.
{¶16} The trial court's consecutive sentence cannot be said to be an abuse of
discretion. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983) (an abuse of discretion “implies that the court's attitude is unreasonable,
arbitrary, or unconscionable.”). Pearce suggests consecutive sentences are
unnecessary under the facts of this case. Pearce has a lengthy criminal record for
drug and alcohol related offenses over a 19-year period, but Pearce states the court
should consider that he is a first-time felony offender. Pearce states his criminal
behavior is due to his substance abuse problems and suggests a residential treatment
center would address his addictions better than incarceration. The trial court
sentenced Pearce to serve a consecutive term on Pearce’s charge of trafficking in
heroin. While Pearce’s previous convictions were misdemeanors, Pearce’s crimes
involving drugs have evolved to the felony level. The trial court had the benefit of a
Ashland County, Case No. 11-COA-027 7
pre-sentence investigation report. At sentencing, the trial court was concerned with
Pearce’s propensity for recidivism and the need to protect the public. Over the 19-
year period, Pearce has had the opportunity to address his substance abuse issues,
but has not.
CONCLUSION
{¶17} We find Pearce’s sentences were within the statutory range and there
was no abuse of discretion by imposing consecutive sentences. Pearce’s sole
assignment of error is overruled. The judgment of the Ashland County Court of
Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as State v. Pearce, 2012-Ohio-1348.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
GREGORY A. PEARCE :
:
: Case No. 11-COA-027
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Ashland County Court of Common Pleas is affirmed. Costs assessed to appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN