[Cite as State v. Timberling, 2013-Ohio-1377.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-35
Plaintiff-Appellee :
: Trial Court Case No. 2011-CR-406
v. :
:
CHARLES A. TIMBERLING, JR. : (Criminal Appeal from
: (Common Pleas Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 5th day of April, 2013.
...........
STEPHEN K. HALLER, Atty. Reg. No. 0009172, Prosecuting Attorney Greene County Ohio,
by NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene
Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
MELISSA REPLOGLE, Atty. Reg. No. 0084215, 2312 Far Hills Avenue, Suite 145, Dayton,
Ohio 45419
Attorney for Defendant-Appellant
.............
WELBAUM, J.
[Cite as State v. Timberling, 2013-Ohio-1377.]
{¶ 1} Defendant-Appellant, Charles A. Timberling, Jr., appeals from his prison
sentence following a guilty plea to four counts of violating a protection order. Timberling
argues that the trial court abused its discretion by imposing consecutive prison sentences and
also by denying Timberling’s request for a psychological report pursuant to R.C. 2947.06(B).
We conclude that the trial court did not abuse its discretion by imposing consecutive prison
sentences or by denying Timberling’s request for a psychological report.
I. Facts and Course of Proceedings
{¶ 2} This case involves multiple violations of a protection order placed on
Timberling by his ex-girlfriend, Yevonn Jacaruso. In 2011, Timberling violated the
protection order by sending four separate correspondences to Jacaruso over a period of seven
months. In January 2011, Timberling sent Jacaruso two birthday cards. In June 2011, he
sent her a greeting card. His fourth communication was a letter sent after the June 2011
greeting card. All the correspondences were innocuous and did not contain any threats of
harm. Timberling also did not try to physically contact Jacaruso.
{¶ 3} Timberling, however, has a prior criminal history related to his infatuation
with Jacaruso. In 2004, he pleaded guilty to abducting Jacaruso. He maintains that he did
not abduct her, and that he only pleaded guilty due to a plea bargain. While Timberling was
in prison for the abduction offense, Jacaruso obtained a protection order against him under
R.C. 2903.214. In 2009, after Timberling was released from prison, he attempted to
communicate with Jacaruso in violation of the protection order. He was then sent back to
prison for nine months.
{¶ 4} As a result of his four communications with Jacaruso in 2011, Timberling
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was indicted for four counts of violating a protection order under R.C. 2919.27 and two counts
of menacing by stalking under R.C. 2903.211. The prosecution agreed to dismiss the two
counts for menacing by stalking in exchange for Timberling pleading guilty to the four
protection order violations. On February 23, 2012 Timberling pleaded guilty to the four
protection order violations. Prior to pleading guilty, Timberling requested that his mental
condition be evaluated pursuant to R.C. 2919.271(B). The court permitted the evaluation
and a psychological report was prepared. On January 30, 2012, Timberling requested a
second psychological report be prepared because the first report allegedly contained errors and
improper conclusions. The trial court decided not to permit a second report and did not
consider the first report when sentencing Timberling.
{¶ 5} Timberling’s sentencing hearing took place on April 13, 2012. Both
Jacaruso and Timberling appeared and gave statements at the hearing.
{¶ 6} Jacaruso expressed her frustration with Timberling. She stated that her
relationship with him was brief and destructive, and that she asked for a protection order to
protect herself physically and mentally. Additionally, she stated that Timberling went out of
his way to locate her, and she felt intimidated by him. She feels as though she and her loved
ones are in danger whenever he makes contact with her. She therefore requested the trial
court to set aside Timberling’s plea bargain, which dismissed the two counts of menacing by
stalking, and to issue the maximum allowable sentence.
{¶ 7} Timberling apologized for all of his actions and explained that they were a
result of his feelings for Jacaruso. He advised the court multiple times that he had no
intention of hurting Jacaruso, and that he had no idea how much she feared him. He also
4
promised to never contact her again.
{¶ 8} After hearing Timberling’s and Jacaruso’s statements, the trial court
sentenced Timberling to one year in prison for each of the first three counts and six months for
the fourth count. His total prison sentence is 42 months, and the trial court ordered the
sentences to run consecutively.
{¶ 9} On December 28, 2012, Timberling appealed the trial court’s imposition of
consecutive sentences and its decision denying his request for a second psychological
evaluation.
II. The Trial Court Did Not Abuse Its Discretion By Sentencing Charles A. Timberling,
Jr. to Consecutive Prison Terms
{¶ 10} Timberling’s First Assignment of Error states that:
The trial court abused its discretion when it sentenced Appellant to
consecutive sentences.
{¶ 11} Under this assignment of error, Timberling argues that he did not cause or
attempt to cause any harm to Jacaruso, and that he took full responsibility for his actions.
Accordingly, Timberling claims the trial court abused its discretion when it sentenced him to
consecutive prison terms.
{¶ 12} A two-step approach is used in Ohio to review felony sentences. “[A]n
appellate court must first determine whether the sentencing court complied with all applicable
rules and statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order to
decide whether the sentence is contrary to law.” State v. Clark, 2d Dist. Champaign No.
2011-CA-32, 2013-Ohio-300, ¶ 13, citing State v. Kalish, 120 Ohio St.3d 23,
5
2008-Ohio-4912, 896 N.E.2d 124, ¶ 26. “If the sentence is not clearly and convincingly
contrary to law, the trial court’s decision in imposing the term of imprisonment must be
reviewed under an abuse-of-discretion standard.” Id.
A. The Trial Court’s Imposition of Consecutive Prison Sentences Was Not Clearly and
Convincingly Contrary to Law
{¶ 13} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” (Citation omitted.) State
v. Blessing, 2d Dist. Clark No. 2011 CA 56, 2013-Ohio-392, ¶ 27. “[T]he trial court must
comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12.”
(Citation omitted.) Id.
{¶ 14} Pursuant to R.C. 2929.11(A):
A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. 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. To achieve those purposes, the
sentencing 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.
{¶ 15} Under R.C. 2929.12(A), the sentencing trial court “has discretion to
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determine the most effective way to comply with the purposes and principles of sentencing set
forth in section 2929.11 of the Revised Code.”
{¶ 16} With regard to consecutive prison sentences, R.C. 2929.14(C)(4) states that:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public, and if the
court also finds any of the following:
***
The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by
the offender.
{¶ 17} In this case, the record shows that prior to sentencing Timberling, the trial
court considered his criminal history, his history with Jacaruso, and his recidivism. Based on
these considerations, the trial court determined that consecutive prison sentences were
necessary to protect the public and to punish Timberling. We find that the trial court’s
purpose and reasoning for imposing consecutive sentences comply with R.C. 2929.11(A),
2929.12(A) and 2929.14(C)(4). The prison sentence also falls within the permissible
statutory range for fifth degree felonies as set forth in R.C. 2929.14(A)(5). The prison
sentence therefore complies with all applicable rules and statutes.
[Cite as State v. Timberling, 2013-Ohio-1377.]
{¶ 18} For the foregoing reasons, we find that the trial court’s decision was not
clearly and convincingly contrary to law.
B. The Trial Court’s Decision to Impose Consecutive Prison Sentences Was Not an Abuse of
Discretion
{¶ 19} “A trial court has broad discretion in sentencing a defendant and a reviewing
court will not interfere with the sentence unless the trial court abused its discretion.” (Citations
omitted.) State v. Bray, 2d Dist. Clark No. 2010CA14, 2011-Ohio-4660, ¶ 28.
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Citation omitted.) It is to be
expected that most instances of abuse of discretion will result in decisions that
are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were it
deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would
support a contrary result. AAAA Enterprises, Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 20} In this case, the trial court’s decision to impose consecutive prison sentences
was not unreasonable, arbitrary, or unconscionable. Timberling has engaged in the same
pattern of conduct multiple times over the past ten years, and he has continued to cause
Jacaruso to fear for her safety. At the sentencing hearing, the trial court expressed its concern
8
regarding Timberling’s criminal history and explained why it decided to impose consecutive
sentences. The trial court stated that:
[T]his is the third time you have appeared before me for essentially the
same type of conduct, the same victim and, in the past, the same outcomes.
The first time you were in front of this Court you received an 18-month prison
sentence. The second time you were in front of this Court you received a
nine-month prison sentence, and now you’re before this Court a third time for
essentially the same conduct, certainly the same offense for which you were
sent to prison the previous time.
***
The Court finds that these sentences should be served consecutively
pursuant to R.C. 2929.14(C)(4) because the Court finds that consecutive
sentences are necessary to protect the public from future crime from you, to
punish you, and that they are not disproportionate to the seriousness of your
conduct and the danger that you pose to the public, including Ms. Jacaruso.
The Court also finds that your history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future crime
by the offender.
As such, the Court will order that all four counts be served
consecutively for a total effective sentence of 36 months [calculation later
corrected on the record to 42 months]. Transcript of Sentencing, p. 26 and
29-31.
9
{¶ 21} The record demonstrates that the trial court decided to impose consecutive
sentences due to Timberling’s criminal history and recidivism. The trial court reasoned that
this was necessary to protect the public and to punish Timberling. We find that the trial
court’s reasoning is sound, and that its decision is not unreasonable, arbitrary or
unconscionable.
{¶ 22} For the foregoing reasons, the trial court’s imposition of consecutive prison
sentences was not an abuse of discretion.
{¶ 23} The First Assignment of Error is overruled.
III. The Trial Court’s Decision to Deny a Second Psychological Report Was Not an
Abuse of Discretion
{¶ 24} Timberling’s Second Assignment of Error states that:
The trial court’s denial of a psychological report under R.C.
2947.06(B) was an abuse of discretion.
{¶ 25} Under this assignment of error, Timberling argues that a second psychological
report, which a court may require when sentencing under R.C. 2947.06(B), would have helped
the trial court understand his thought process and his reasons for violating the protection
order. Timberling argues that a psychological report was crucial in determining an
appropriate prison sentence, and it was therefore an abuse of discretion for the trial court to
deny his request to have a second report prepared and considered. We disagree.
{¶ 26} Pursuant to R.C. 2947.06(B), “[t]he court may appoint not more than two
psychologists or psychiatrists to make any reports concerning the defendant that the court
requires for the purpose of determining the disposition of the case.” R.C. 2947.06(B) is not a
10
mandatory statute because “[i]t employs the word ‘may,’ which is ‘generally construed to
render optional, permissive, or discretionary the provision in which it is embodied * * *.’ ”
State v. Taylor, 114 Ohio App.3d 416, 423, 683 N.E.2d 367 (2d Dist. 1996), quoting State ex
rel. City of Niles v. Bernard, 53 Ohio St.2d 31, 34, 372 N.E.2d 339 (1978). Because the trial
court’s decision to implement a psychological report is discretionary, the decision is reviewed
under an abuse of discretion standard. As previously discussed, the trial court’s decision
must be “unreasonable, arbitrary or unconscionable” to be considered an abuse of discretion.
AAAA Enterprises, Inc., 50 Ohio St.3d at 161, 553 N.E.2d 597.
{¶ 27} In this case, the trial court’s decision to deny Timberling’s request for a
second psychological report was not unreasonable, arbitrary or unconscionable. The first
psychological report, which was allegedly erroneous, was not considered by the trial court, and
a second one was deemed unnecessary. Denying the request for a second report was not
unreasonable because there is nothing in the record indicating that Timberling suffered from
mental health issues that may have affected his behavior. There is also nothing in the record
indicating that Timberling was receiving any mental health treatment. At the sentencing
hearing, Timberling explained to the court his feelings for Jacaruso and why he contacted her.
His explanation adequately informed the trial court of his reasons for violating the protection
order, and it did not require clarification by a psychologist.
{¶ 28} For the foregoing reasons, we find that a psychological report was not crucial
to determining an appropriate sentence, and it was not unreasonable, arbitrary or
unconscionable for the trial court to deny Timberling’s request to have a second one prepared.
Accordingly, the trial court did not abuse its discretion by denying Timberling’s request for a
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psychological report under R.C. 2947.06(B).
{¶ 29} The Second Assignment of Error is overruled.
IV. Conclusion
{¶ 30} Having overruled both of Charles A. Timberling, Jr.’s assignments of error,
we hereby affirm the judgment of the trial court.
.............
FAIN, P.J. and DONOVAN, J., concur.
Copies mailed to:
Nathaniel R. Luken
Melissa Replogle
Hon. Stephen Wolaver