State v. Richards , 2016 Ohio 1293 ( 2016 )

[Cite as State v. Richards, 2016-Ohio-1293.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-15-27
PLAINTIFF-APPELLEE,
v.
JONATHON M. RICHARDS, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 14-CR-0167
Judgment Affirmed
Date of Decision: March 28, 2016
APPEARANCES:
Robert J. Beck, Jr. and Eric W. Brehm for Appellant
David W. Phillips for Appellee
Case No. 14-15-27
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Jonathon M. Richards (“Richards”), brings this
appeal from the judgment of the Common Pleas Court of Union County, Ohio,
which accepted his plea of guilty to one count of felonious assault, a felony of the
second degree in violation of R.C. 2903.11(A)(1), (D)(1)(a), and sentenced him to
five years in prison. For the reasons that follow, we affirm the trial court’s
judgment.
Relevant Background
{¶2} On September 4, 2014, Richards was indicted on one count of rape, a
felony of the first degree in violation of R.C. 2907.02(A)(2), (B); one count of
felonious assault, a felony of the second degree in violation of R.C.
2903.11(A)(1), (D)(1)(a), and one count of domestic violence, a misdemeanor of
the first degree in violation of R.C. 2919.25(A), (D)(2). (R. at 1.) The charges
stemmed from incidents that occurred on May 22, 2014, and June 5, 2014. (Id.)
The victim in both cases was L.W., Richards’s wife. (See R. at 54, Am. Bill of
Particulars.) Richards entered a plea of not guilty.
{¶3} On July 31, 2015, Richards withdrew his former not guilty plea and
entered a plea of guilty to one count of felonious assault, a felony of the second
degree in violation of R.C. 2903.11(A)(1), (D)(1)(a). (R. at 57.) The trial court
accepted the plea, found Richards guilty of the charge and at the request of the
State, it dismissed the remaining counts of the indictment. (Id.) After a
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presentence investigation report was prepared, the parties appeared for sentencing
on September 16, 2015. The trial court sentenced Richards to five years of
imprisonment and from this sentence Richards now appeals raising one
assignment of error as quoted below.
THE TRIAL COURT DID ERR BY IMPOSING A PRISON
TERM THAT IS DISPROPORTIONATE TO OTHER
SENTENCES IMPOSED FOR SIMILAR CRIMES
COMMITTED BY SIMILAR OFFENDERS.
Standard of Review
{¶4} A trial court has discretion to impose a prison sentence that is within
the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1, ¶ 37; State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9.
But in exercising that discretion, the trial court must “carefully consider” the
statutory sentencing guidelines set forth in R.C. 2929.11 and R.C. 2929.12, as well
as the “statutes that are specific to the case itself.” Matthis at ¶ 38. We will
reverse the sentence only if we determine “by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that
the sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No.
2016-Ohio-1002 (March 15, 2016).
{¶5} Under R.C. 2929.11, in imposing the sentence, the trial court “shall
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.” R.C. 2929.11(A). Furthermore, the trial court
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must ensure that the sentence is “reasonably calculated to achieve the two
overriding purposes of felony sentencing * * * , commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes committed by
similar offenders.” R.C. 2929.11(B). Under R.C. 2929.12, the trial court shall
consider a number of factors that relate to the seriousness of the conduct, the
likelihood of the offender’s recidivism, and the offender’s service in the armed
forces.
Analysis
{¶6} Richards alleges that his sentence was disproportionate to other
sentences imposed for similar crimes committed by similar offenders. As the only
support for his argument Richards submits that (1) he “had no prior felony
convictions” and (2) “he had never been imprisoned in a State penitentiary.”
(App’t Br. at 5.)
{¶7} “Proportionality is one of the overriding principles of felony
sentencing under R.C. 2929.11,” and it is achieved by “ ‘a proper and circumspect
application of the sentencing guidelines.’ ” State v. Lewis, 11th Dist. Lake No.
2011-L-004, 2011-Ohio-4700, ¶ 25-26. Thus, multiple courts have noted that “a
consistent sentence is not achieved from a case-by-case comparison, but by the
trial court’s proper application of the statutory sentencing guidelines.” State v.
Sutton, 8th Dist. Cuyahoga No. 97132, 2012-Ohio-1054, ¶ 17, citing State v. Hall,
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179 Ohio App.3d 727, 2008–Ohio–6228, 903 N.E.2d 676, ¶ 10 (10th Dist.);
accord State v. Mansley, 2d Dist. Montgomery No. 26417, 2015-Ohio-2785, ¶ 17;
State v. Dahms, 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181, ¶ 22; State v.
Marker, 11th Dist. Portage No. 2006-P-0014, 2007-Ohio-3379, ¶ 44; State v.
Coburn, 4th Dist. Adams No. 03CA774, 2004-Ohio-2997, ¶ 17. Therefore, “[a]
defendant claiming inconsistent sentencing must show the trial court failed to
properly consider the statutory sentencing factors and guidelines in R.C. 2929.11
and 2929.12.” Sutton at ¶ 18.
{¶8} While the burden is on the defendant to demonstrate that the sentence
is not supported by the record or is contrary to law, Richards offers nothing to
support his assignment of error on appeal. See State v. Ramos, 3d Dist. Defiance
No. 4-06-24, 2007-Ohio-767, ¶ 18; State v. Searles, 8th Dist. Cuyahoga No.
96549, 2011-Ohio-6275, ¶ 25. He does not argue that the trial court failed to
properly consider or follow the necessary sentencing guidelines; nor does he argue
that the record does not support the trial court’s findings or that the sentence is
otherwise contrary to law.
{¶9} Based on our review, the five-year prison term was well supported by
the record, which includes a summary of factual allegations that lead to the
charges and the presentence investigation report. The facts indicate that the victim
in this case, L.W., was repeatedly physically and sexually abused by Richards.
(Tr. of Proceedings, Sentencing at 4-5, 12, Sept. 16, 2015.) The recent abuse
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included strangulation of the victim “to the point that her legs were -- and arms
were twitching, that she saw stars, that she attempted to stop him and lost
strength,” and that “she was losing consciousness.” (Id. at 4.) The incident left
bruising on the victim’s face and neck, “a yellow bruise to the white of her eye,”
and a “ruptured blood vessel in the eye.” (Tr. of Proceedings, Change of Plea at
20, July 31, 2015.) The abuse occurred in front of children. (Tr. of Proceedings,
Sentencing at 12; see also Tr. of Proceedings, Change of Plea at 19.)
{¶10} Richards had previously been charged with domestic violence in
Madison County, Ohio, and convicted of an amended charge of disorderly conduct
as a result. (Tr. of Proceedings, Sentencing at 5; PSI at 6.) At the time of the
sentencing in this case, Richards was under probation for the Madison County
case and was attending domestic violence group sessions. (PSI at 7; Tr. of
Proceedings, Change of Plea at 7.) The trial court referred to the facts that led to
the rape charges, commenting that they were “particularly egregious.” (Tr. of
Proceedings, Sentencing at 13.) Although they were dismissed upon the victim’s
request because “she did not wish there to be a mandatory prison term,” Richards
admitted to committing the acts that the court described as “particularly
egregious.” (Id. at 5, 13; see also PSI at 4.)
{¶11} As stated above, Richards pointed to no facts or factors on appeal to
indicate that the trial court erred in imposing his sentence. We further note that
the five-year prison term falls within the statutory range, which is from two to
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eight years, and is less than the maximum prison term permitted by the statute.
See R.C. 2929.14(A)(2). For all of the foregoing reasons, we overrule the
assignment of error and affirm the sentence imposed by the trial court.
Conclusion
{¶12} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Common Pleas Court of Union County, Ohio is
therefore affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls
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