State v. Young , 2011 Ohio 3528 ( 2011 )

[Cite as State v. Young, 2011-Ohio-3528.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-11-02
v.
GARY R. YOUNG, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 10-CR-0056
Judgment Affirmed
Date of Decision: July 18, 2011
APPEARANCES:
Howard A. Elliott for Appellant
Jonathan K. Miller for Appellee
Case No. 16-11-02
SHAW, J.
{¶1} Defendant-appellant, Gary Young (“Young”), appeals the February 1,
2011 judgment of the Wyandot County Court of Common Pleas sentencing him to
seventeen months in prison.
{¶2} On December 16, 2010, a Wyandot County Grand Jury indicted
Young on four counts of aggravated trafficking in drugs, each count with a
specification that the offense was committed within the vicinity of a juvenile. All
of these charges are classified as felonies of the third degree. Young was also
indicted on one count of intimidation of a crime witness, also a felony of the third
degree.
{¶3} On January 5, 2011, Young pled guilty to two amended counts of
aggravated trafficking in drugs, both felonies of the fourth degree. The remaining
charges and specifications listed in the indictment were dismissed.
{¶4} On January 31, 2011, Young appeared for sentencing. The trial court
imposed a sentence of seventeen months in prison on each count to be served
concurrently. Young’s sentence was journalized by the trial court in its February
1, 2011 Judgment Entry.
{¶5} Young now appeals, asserting the following assignment of error.
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ASSIGNMENT OF ERROR
THE RECORD DEMONSTRATES BY CLEAR AND CONVINCING
EVIDENCE THAT THE SENTENCE IS UNSUPPORTED BY THE
RECORD AND THE TRIAL COURT FAILED TO CONSIDER THE
REHABILITATIVE PURPOSES OF FELONY SENTENCING
UNDER OHIO REVISED CODE § 2929.11 IN IMPOSING
SENTENCE UPON THE APPELLANT WHO HAD NO PREVIOUS
FELONY CONVICTIONS AND EXPRESSED A DESIRE FOR
SUBSTANCE ABUSE COUNSELING.
{¶6} Initially, we note that an appellate court must conduct a meaningful
review of the trial court’s sentencing decision. State v. Daughenbaugh, 3rd Dist.
No. 16-07-07, 2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-
0007, 2004-Ohio-1181. A meaningful review means “that an appellate court
hearing an appeal of a felony sentence may modify or vacate the sentence and
remand the matter to the trial court for re-sentencing if the court clearly and
convincingly finds that the record does not support the sentence or that the
sentence is otherwise contrary to law.” Daughenbaugh, 2007-Ohio-5774, at ¶ 8,
citing Carter, 2004-Ohio-1181, at ¶ 44; R.C. 2953.08(G).1 Clear and convincing
evidence is “[t]he measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to
1
We note that the Supreme Court of Ohio’s plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, establishes a two-part test utilizing an abuse of discretion standard for
appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s
precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note
that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test.
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Case No. 16-11-02
the extent of such certainty as required beyond a reasonable doubt as in criminal
cases. It does not mean clear and unequivocal.” In re Estate of Haynes (1986), 25
Ohio St.3d 101, 103-04, 495 N.E.2d 23.
{¶7} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
¶ 97, the Supreme Court of Ohio stated that “[t]rial courts [now] 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.” Id. at paragraph seven of the
syllabus.
{¶8} Although the trial court is given full discretion in sentencing pursuant
to Foster, the trial court must still consider the overriding purposes of felony
sentencing, which are to protect the public from future crimes by the offender and
to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd Dist. No. 6-07-17,
2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11, 2007-Ohio-5767,
¶ 27. Additionally, “[a] sentence imposed for a felony shall be 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).
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Case No. 16-11-02
{¶9} Here, Young concedes that the sentence imposed by the trial court was
within the statutory range for the offense for which he was convicted. See R.C.
2929.14(A)(4) (stating that a seventeen month prison term is within the statutory
range for a sentence on a fourth degree felony conviction). However, Young
asserts two main points in his contention that the sentence imposed by the trial
court is not supported by clear and convincing evidence. First, Young maintains
that this is his first felony conviction, despite the fact that he has a lengthy
criminal past involving several misdemeanor offenses. Second, Young argues that
his prior criminal conduct, which spans over the last three decades, can be
attributed to his history of substance abuse. Young contends that the trial court
did not give adequate consideration to his statement on the record that he wanted
to get treatment for his addiction so that he could live a productive life, free from
committing crime.
{¶10} Both at the sentencing hearing and in the judgment entry of
conviction and sentence, the trial court noted on the record that it had considered
the sentencing statutes and relevant case law. Contrary to Young’s assertions, the
record demonstrates that the trial court gave due consideration to the nature of
Young’s criminal history and his desire to get treatment for his addiction.
Specifically, the trial court stated the following at the sentencing hearing, which is
also incorporated into its sentencing judgment entry:
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The defendant has a juvenile and criminal history that shows
that he has not been a law abiding person since approximately
age 14. Defendant was delinquent and unruly most of his teen
years. As an adult defendant had numerous convictions for
OVIs, carrying concealed weapons, assaults, and obstructing
official business. The last time Defendant was before this Court
in 2006, the case involved a short pursuit by a Deputy and
Vicodin pills. Now the Defendant is back before this Court in
two cases involving the sale of illegal drugs. Defendant justifies
his sale operation by saying it was a way to make money since he
had quit his job. Apparently Defendant had no concern for the
addicts and the addictions he helped to fuel with his business
and in this respect Defendant represents a threat to public
safety. Defendant has shown little regard for the law. The
Court has little confidence that the Defendant will suddenly be
able to flip a switch and become a law abiding citizen.
Defendant has had numerous opportunities for treatment * * *.
It is disturbing that the Defendant wants treatment, wants it to
be imposed by the Court and not treatment that he, himself, has
sought.
(J.E. Feb. 1, 2011 at 4).
{¶11} Our review of the record reveals that the sentence imposed by the
trial court is supported by clear and convincing evidence. Each sentence was
within the statutory range for sentencing. Further, the record demonstrates
Young’s criminal history began at age fourteen, continued as an adult and resulted
in numerous misdemeanor convictions. The record also demonstrates Young’s
pattern of drug abuse related to the instant offenses, which he openly
acknowledged, as well as the facts of the instant case. Therefore, we find that the
sentence was supported by law and the record. Furthermore, we note that even
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though Young disagrees with the weight the trial court accorded his testimony as it
related to his desire to seek treatment, it is well within the discretion of the trial
court to assess the credibility of witness and to weigh his or her testimony
accordingly. Thus, the trial court did not err in sentencing Young in the manner
that it did, and the assignment of error is overruled.
{¶12} For all these reasons, the judgment of the Wyandot County Court of
Common Pleas is affirmed.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/jlr
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