State v. Bement , 2013 Ohio 5437 ( 2013 )

[Cite as State v. Bement, 2013-Ohio-5437.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99914
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM BEMENT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-571792
BEFORE: Boyle, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEY FOR APPELLANT
Kenneth J. Lewis
Kenneth J. Lewis Co., L.P.A.
1220 West 6th Street
Suite 502
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, William Bement, appeals his sentence, raising a single
assignment of error:
Whether the trial court erred and abused its discretion in sentencing the
appellant too harshly.
{¶3} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶4} On February 5, 2013, Bement was sentenced in Rocky River Municipal
Court and placed on probation for his conviction of operating a motor vehicle under the
influence. Following the sentencing hearing, Bement returned home, began drinking,
and posted the following threats on his Facebook page for his “friends” to read: “People
need to stop shooting up schools and start shooting cops in courthouses”; “I’m on board.
Load up.” Bement further threatened: “Fuck Rocky River Court. Kill your local
judges.”
{¶5} After one of Bement’s Facebook friends notified the police, Bement was
subsequently indicted on two counts of retaliation, violations of R.C. 2921.05(A), felonies
of the third degree. Bement reached a plea agreement with the state wherein he pleaded
guilty to an amended count of attempted retaliation, a felony of the fourth degree, and the
remaining charge was dismissed. The trial court accepted the plea and then referred the
case for a presentence investigation report.
{¶6} At sentencing, the trial court confirmed that Bement’s counsel and the
prosecutor had an opportunity to review the presentence report. Bement’s counsel
indicated that he had “no issues with the contents.” The trial judge then heard from
Bement, who expressed remorse for his actions. Bement’s counsel further addressed the
court, urging the court to allow Bement to return home to his family and his job given that
he had already served 70 days in jail and learned a valuable lesson. Bement’s counsel
further emphasized that Bement’s offense involved “words” only and not acts of violence,
nor was he “planning on carrying anything out.”
{¶7} The trial judge questioned Bement’s reasoning for his threats on Facebook
when the trial judge only gave him probation. He responded that “[i]t was just the way I
was being spoke to. It was just there was a lot of things building up. It’s not even just
to do with the courts in general. It’s just a lot of things were getting to me.” The trial
judge asked for clarification as to Bement’s reference to “the way they spoke to you.”
He responded:
She was like — you know, like normally you would be given the option of
like a three-day hotel stay. She told me she wanted to see me in jail and
she didn’t want to give me that option. And then they were trying to throw
on restitution that I already had taken care of, which was like $4,000 and
that’s why my attorney had gone back in the courtroom.
{¶8} The trial judge further asked Bement the meaning of his threat, “I’m on
board. Load up.” Bement indicated that “[i]t was just a figure of speech. It meant
nothing. It was almost like song lyrics.” He further indicated that he did not want to
shoot the cops in the courthouse and that he said that just “to be rash” — “just doing it for
shock factor.”
{¶9} The court also heard from the prosecutor, who discussed the effect that
Bement’s actions have had on the Rocky River Municipal Court judge that sentenced
him, including that the judge “has told her husband and children that they need to be more
vigilant as a result of the defendant’s threat that day.” The prosecutor further read a
statement from the municipal court judge, wherein she expressed her opinion that Bement
deserves “some jail time.” After acknowledging that “the defendant cannot be kept in
jail forever,” the judge expressed her interest in Bement “being on a very, very long and
very, very strict probation.”
{¶10} The trial court ultimately imposed a prison term of 17 months. The court
further informed Bement that he was subject to three years of postrelease control with the
following conditions: (1) no alcohol and drugs, (2) mental health counselling, (3) anger
management, and (4) no contact with the victim, the victim’s place of employment, and
the victim’s family.
{¶11} From this order, Bement now appeals.
Excessive Sentence
{¶12} In his sole assignment of error, Bement argues that the trial court abused its
discretion in failing to follow the statutory mandates of R.C. 2929.11 and 2929.12,
thereby imposing a sentence that was “too harsh.” We find his argument to lack merit.
{¶13} We do not review felony sentences under an abuse-of-discretion standard.
R.C. 2953.08(G)(2). Rather, we may
increase, reduce, or otherwise modify a sentence * * * or may vacate the
sentence and remand the matter to the sentencing court for resentencing” if
we determine that “the record clearly and convincingly * * * does not
support the sentencing court’s findings under [various provisions]; [or]
[t]hat the sentence is otherwise contrary to law.
Id.{¶14} Contrary to Bement’s assertion, the trial court was not required to make any
findings on the record in imposing a “near maximum” sentence. Indeed, there are no
longer any specific findings or reasons a court must give in order to impose maximum
sentences. State v. Calliens, 8th Dist. Cuyahoga No. 97034, 2012-Ohio-703, ¶ 28; State
v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 82. Thus, we must
determine if Bement’s sentence was otherwise contrary to law.
{¶15} The court’s only guide in this case was the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the serious and recidivism factors set forth in
R.C. 2929.12. R.C. 2929.11(A) provides that
The overriding purposes of felony sentencing 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
without imposing an unnecessary burden on state or local government
resources.
{¶16} Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list of
factors, including the seriousness of the defendant’s conduct, the likelihood of recidivism,
and “any other factors that are relevant to achieving those purposes and principles of
sentencing.”
{¶17} There is still no “mandate,” however, for the sentencing court to engage in
any factual findings under R.C. 2929.11 or 2929.12. State v. Jones, 12th Dist. Butler No.
CA2012-03-049, 2013-Ohio-150, ¶ 49, citing Rose, 12th Dist. Butler No.
CA2011-11-214, 2012-Ohio-5607, ¶ 78; State v. Putnam, 11th Dist. Lake No.
2012-L-026, 2012-Ohio-4891, ¶ 9. Instead, the “trial court still has the discretion to
determine whether the sentence satisfies the overriding purpose of Ohio’s sentencing
structure.” Jones at ¶ 49. Furthermore, “[w]e can presume from a silent record that the
trial court considered the appropriate factors unless the defendant affirmatively shows
that the court has failed to do so.” State v. Bohannon, 1st Dist. Hamilton No. C-130014,
2013-Ohio-5101, ¶ 7; State v. Parsons, 3d Dist. Auglaize No. 2-10-27, 2011-Ohio-168, ¶
15.
{¶18} Based on the record before us, we find that Bement’s sentence is not clearly
and convincingly contrary to law. Here, the trial court imposed a sentence within the
sentencing range. Bement fails to overcome the presumption that the trial court
considered the appropriate factors in R.C. 2929.11 and 2929.12 in imposing a prison
term. Indeed, the trial court ordered a presentence investigation report prior to
sentencing, which indicated that Bement had been convicted of several felonies, including
breaking and entering and drug possession offenses. The trial court further considered
the impact of Bement’s actions on the victim and the victim’s family. And while Bement
characterizes his stated “remorse” and inability to own a gun as strong mitigating factors
favoring a lesser sentence, the trial court has the discretion to disagree and determine a
sentence that satisfies the overriding purpose of Ohio’s sentencing structure. State v.
Jackson, 8th Dist. Cuyahoga No. 99059, 2013-Ohio-3136, ¶ 26 (rejecting defendant’s
argument that the trial court ignored mitigating evidence and imposed a sentence that is
“too harsh”).
{¶19} As for Bement’s claim that his sentence is not proportionate with sentences
imposed for similarly situated offenders, Bement did not raise the issue of proportionality
at the sentencing hearing. Nor did he present evidence as to what a “proportionate
sentence” might be. Thus, he has not preserved the issue for appeal. State v. Burt, 8th
Dist. Cuyahoga No. 99097, 2013-Ohio-3525, ¶ 39.
{¶20} Bement’s sole assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR