[Cite as State v. Murphy, 2011-Ohio-5416.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA
81
v. : T.C. NO. 10CR290
ROBERT MURPHY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of October , 2011.
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ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P. O. Box
1262, Dayton, Ohio 45402
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Robert Murphy appeals from his conviction and
sentence for one count of breaking and entering, in violation of R.C. 2911.13(A), a felony of
the fifth degree, and one count of burglary, in violation of R.C. 2911.12(A)(3), a felony of
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the third degree. Murphy filed a timely notice of appeal with this Court on August 12,
2010.
I
{¶ 2} The instant appeals stems from two incidents which occurred during April of
2010. On April 13, 2010, deputies were dispatched to Advantage Car Credit located in
Clark County, Ohio, in order to investigate a break-in. The break-in was reported by an
employee who was opening the business that day after she observed a broken window at the
back of the building. Upon entering, the witness discovered that a television was missing,
and the interior had been ransacked. The employee ran to a nearby bank and called 911.
During their subsequent investigation, the deputies obtained information implicating Murphy
as the perpetrator of the break-in, and he was arrested and taken to jail.
{¶ 3} The second incident occurred on April 29, 2010, when deputies were
dispatched to the 1200 block of Wendell Avenue in New Carlisle, Ohio, after a witness
reported a suspicious white male carrying a blue bag and a large TV wrapped in plastic
walking down Wendell Avenue. The witness further reported that the suspicious male
walked to a residence located at 1223 Wendell Avenue and went inside. Upon arriving and
approaching the residence, the deputy observed a white van backing out of the driveway.
The deputy initiated a traffic stop of the vehicle in which Murphy was a passenger. The
reporting witness identified Murphy as the suspicious male earlier seen walking down
Wendell Avenue. The driver of the van, Kelly Tapia, informed the deputies that she had
reluctantly given Murphy a ride in order to get him away from her children who were present
at 1223 Wendell Avenue. Tapia gave the deputies permission to search her van. The
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deputies located a large flat screen television and a blue bag containing a computer monitor
and other electrical devices inside the van.
{¶ 4} Murphy admitted that he had placed the television and the blue bag in Tapia’s
van. Murphy stated that the television previously belonged to his brother, Frankie.
Murphy stated that he had taken the television in payment for a car. Murphy did not
provide an explanation for the items contained in the blue bag. Murphy insisted that the
deputies travel to Frankie’s residence located at 1029 Wendell Avenue in order to verify his
story.
{¶ 5} Upon their arrival at 1029 Wendell Avenue, the deputies spoke with the
resident of the house, Brendian Morris, who explained that Frankie had moved away
approximately two weeks earlier and left nothing behind. The deputies discovered a Dell
tower computer and an HP printer in the grass on the side of the house. Morris stated that
he did not recognize the items taken from Tapia’s van nor the computer and printer found on
the side of the house. Upon inspection, a detective noticed that the computer tower had a
repair tag on the side ostensibly bearing the name and address of the owner. The detective
sent the deputies to the address on the computer, 1030 Grissom Avenue. The deputies
discovered that the Grissom Avenue residence had been broken into and that items had been
removed. Many of the items recovered from Murphy were found to have been stolen from
the residence. Additionally, Murphy’s shoes matched footprints left at the scene, and the
backyard of the Grissom Avenue residence connected to the backyard of the home where
Murphy initially claimed that his brother lived.
{¶ 6} On May 10, 2010, Murphy was indicted for two counts of burglary, in
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violation of R.C. 2911.12(A)(1) and (4), and one count of breaking and entering, in violation
of R.C. 2911.13(A). At his arraignment on May 17, 2010, Murphy pled not guilty to all
counts in the indictment. Murphy filed a motion to suppress regarding the statements he
made to the deputies. Murphy later withdrew the motion after the parties negotiated a plea
agreement wherein Murphy agreed to plead guilty to one count of breaking and entering, in
violation of R.C. 2911.13(A), a felony of the fifth degree, and one count of burglary, in
violation of R.C. 2911.12(A)(3), a felony of the third degree. In return, the State agreed to
recommend that Murphy be sentenced to community control and in-patient drug treatment at
West Central. The plea hearing occurred on June 15, 2010.
{¶ 7} At the sentencing hearing held on July 12, 2010, however, the trial court did
not follow the State’s recommendation regarding in-patient treatment at West Central.
Murphy was sentenced to one year for breaking and entering, and four years for burglary, the
sentences to run consecutively for an aggregate sentence of five years in prison.
{¶ 8} It is from this judgment that Murphy now appeals.
II
{¶ 9} Murphy’s first assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING
APPELLANT’S SENTENCE.”
{¶ 11} In his first assignment, Murphy contends that his sentence was improper
because the trial court failed to consider R.C. 2929.11 and R.C. 2929.12. Specifically,
Murphy argues that the trial court failed to affirmatively address the relevant sentencing
statutes during the dispositional hearing. While noting that the trial court did, in fact,
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discuss his criminal history and prior drug treatment, Murphy asserts that the trial court
“should be, at minimum, required to mention its consideration of these statutes on the
record.” In the alternative, Murphy argues that the trial court abused its discretion when it
considered improper factors in determining his sentence.
{¶ 12} “The overriding purposes of felony sentencing are to protect the public from
future
{¶ 13} crime by the offender and others and to punish the offender. 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.” R.C. 2929.11(A). A court that imposes a sentence
for a felony has discretion to determine the most effective way to comply with the purposes
and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12(A). “Although
[State v.] Foster [109 Ohio St.3d 1, 2006-Ohio-856] eliminated judicial fact-finding, courts
have not been relieved of the obligation to consider the overriding purposes of felony
sentencing, the seriousness and recidivism factors, or the other relevant considerations set
forth in R.C. 2929.11, 2929.12, and 2929.13.” State v. Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338, ¶ 25.
{¶ 14} We review a felony sentence using a two-step procedure. State v. Kalish, 120
Ohio St.3d 23, 2008-Ohio-4912, ¶ 4. “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.’” State v. Stevens, 179
Ohio App.3d 97, 2008-Ohio-5775, ¶ 4, quoting Kalish at ¶ 4. “If this step is satisfied, the
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second step requires that the trial court’s decision be ‘reviewed under an abuse-of-discretion
standard.’” Id. Generally, abuse of discretion is an “appellate court’s standard for
reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or
unsupported by the evidence.” State v. Money, Clark App. No. 2009CA119,
2010-Ohio-6225, ¶13 (internal citations omitted).
{¶ 15} As we recently explained in State v. Watkins, 186 Ohio App.3d 619,
2010-Ohio-740:
{¶ 16} “Sentencing errors assigned regarding the trial court’s application of
R.C. 2929.11 and 2929.12 are reversible or modifiable only upon a finding by clear
and convincing evidence that the sentence is contrary to law. State v. Hawkins,
Greene App. No. 06CA79, ¶8. See, also, State v. Bowshier, Clark App No.
08-CA-58, 2009-Ohio-3429, ¶6, citing State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855. ‘Contrary to
law means’ that a sentencing decision manifestly ignores an issue or factor which a
statute requires a court to consider. Hawkins, supra, at ¶8, citing State v. Lofton,
Montgomery App. No. 19852, 2004-Ohio-169, ¶11.
{¶ 17} “When a trial court imposes a sentence that falls within the applicable
statutory range, the court is required to consider the purposes and principles set
forth in R.C. 2929.11, as well as the recidivism factors enumerated in R.C. 2929.12.
Hawkins, supra, at ¶8, citing Mathis, supra. However, the court need not make
any specific findings in order to demonstrate its consideration of those factors. Id.
citing State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-301; State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-855, ¶42.”
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{¶ 18} In the instant case, it is undisputed that the trial court did not
specifically mention either R.C. 2929.11 or R.C. 2929.12 at the sentencing hearing.
The court, however, did reference both statutes in its judgment entry. A trial court
speaks through its journal entries. State v. Brooke, 113 Ohio St.3d 199,
2007-Ohio-1533, ¶47, citation omitted. In its judgment entry, the trial court stated
as follows:
{¶ 19} “The Court considered the record, oral statements of counsel, the
defendant’s statement, the pre-sentence investigation report, the principles and
purposes of sentencing under Ohio Revised Code Section 2929.11, and has
balanced the seriousness and recidivism factors [set forth in] Ohio Revised Code
Section 2929.12.”
{¶ 20} Because the trial court affirmatively stated in its judgment entry that it
considered the factors set out in both R.C. 2929.11 and R.C. 2929.12 in imposing
Murphy’s sentence, that sentence is not contrary to law. Watkins, 186 Ohio App.3d
at 630.
{¶ 21} Having concluded that Murphy’s sentence is not contrary to law, we
must now review his sentence under an abuse of discretion standard. Id. at 631.
Murphy asserts that certain statements made by the trial court establish that the
court considered improper factors when it ignored the recommendation of the State
and sentenced him to five years in prison. The trial court abuses its discretion
when it considers an improper factor in its sentencing analysis. State v. Davis,
Washington App. No. 09CA28, 2010-Ohio-555.
{¶ 22} R.C. 2929.12(A) mandates that, in exercising its “discretion, the court
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shall consider the factors set forth in divisions (B) and (C) of this section relating to
the seriousness of the conduct and the factors provided in divisions (D) and (E) of
this section relating to the likelihood of the offender’s recidivism and, in addition,
may consider any other factors that are relevant to addressing those purposes and
principles of sentencing.” Accordingly, the trial court had discretion to consider
additional factors, but only if those factors are relevant to the proceedings.
{¶ 23} Murphy asserts that the following statements made by the trial court at
his disposition clearly establish that the trial court considered improper factors when
it sentenced him:
{¶ 24} “The Court: All right. Well, when I took your plea on June15th, and I
knew that the State would be recommending community control with West Central,
I did have some reservations, seeing that one of the offenses was a burglary, a
felony of the third degree.
{¶ 25} “But I was committed to keeping an open mind and waiting until the
pre-sentence report came back. I have to tell you that the pre-sentence report has
not helped you.
{¶ 26} “I’m not even getting to the offenses yet here, but just looking at your
life situation here, you quit high school in the ninth grade. You have two kids. It
doesn’t appear that you’re paying any child support?
{¶ 27} “Murphy: Not very much, sir.
{¶ 28} “The Court: You don’t support them so I bet the mom of your kids gets
some kind of assistance, which means that all of us here in the courtroom are
paying to support your children. ***.
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{¶ 29} “***
{¶ 30} “So, in summary, you have two kids you are not supporting so the
community is supporting them.
{¶ 31} “And then instead of saying ‘Thank you,’ to the community for
supporting your kids, you’re going out and burglarizing homes and breaking into
businesses.
{¶ 32} “And then when you get caught, you’re coming into the courtroom
asking for help. Well, it’s not my job to help you. It’s my job to punish you.”
(Emphasis added).
{¶ 33} It is vital to avoid both the reality and “perception that no clear
standards are being applied, and that the rule of law is imperiled by sentences
imposed for no discernible reason other than the subjective reactions of the
sentencing judge.” State v. Nichols, Clark App. No. 2010 CA 60, 2011-Ohio-4671,
quoting Harmelin v. Michigan (1991), 501 U.S. 957, 1007, 111 S.Ct. 2680, 115
L.Ed.2d 836. This record establishes that the trial court improperly considered
Murphy’s limited ability to pay child support, as well as assumed and irrelevant facts
regarding his children’s receipt of “assistance” in weighing the appropriate
sentence. The trial court’s reliance on these factors was clearly improper. The
trial court’s apparent indignation over its assumption that Murphy’s children
received “some kind of assistance” and its resultant impact upon the community
was an improper factor upon which to rely when fashioning the appropriate
sentence. “Even though it has discretion in choosing an appropriate sentence,
when a court considers an improper sentencing factor, it has committed an abuse
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of discretion.” State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555.
Indeed, the trial court had the discretion to reject the sentencing recommendation
of the State; however, the court abused its discretion when it emphasized Murphy’s
limited financial ability to support his children and the impact upon the community of
paying some kind of assistance when deciding the proper term of imprisonment.
{¶ 34} Additionally, although R.C. 2929.11(A) states that the overriding
purposes of felony sentencing is to protect the public from future crime by the
offender and others and to punish the offender, the trial court seems to have
ignored the fact that, in order to achieve those purposes, it was required to
consider, among other things, rehabilitating the offender. State v. Nichols, Clark
App. No. 2010 CA 60, 2011-Ohio-4671. “[T]he sentencing judge [should] consider
every convicted person as an individual and every case as a unique study in the
human failings that sometimes mitigate, sometimes magnify, the crime and the
punishment to ensue.” Pepper v. United States (2011), U.S. ,
131 S.Ct. 1229, 1240, 179 L.Ed.2d 196, citing Koon v. United States (1996), 518
U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392. Upon review, we conclude that the trial
court abused its discretion when it sentenced Murphy by relying on improper factors
which had no bearing upon the offenses to which he pled guilty.
{¶ 35} We also note that the trial court made the following statement before
announcing Murphy’s sentence:
{¶ 36} “The Court: While the State is recommending community control
pursuant to their agreement with you, I’m assuming that the State wasn’t aware of
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your criminal record.” (Emphasis added).
{¶ 37} This declaration by the trial court only serves to further highlight the
inherently presumptive and speculative nature of its reasoning process when it
decided to reject the State’s recommendation and sentence Murphy to five years in
prison.1 There is no evidence in the record which even remotely suggests that the
State was unaware of Murphy’s criminal record, thus it was improper for the trial
court to assume such. Rather than simply assuming that the State was ignorant of
Murphy’s prior record, the trial court could have simply questioned the prosecutor in
that regard.
{¶ 38} Murphy’s first assignment of error is sustained.
III
{¶ 39} Murphy’s second assignment of error is as follows:
{¶ 40} “THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEA
AS THE PLEA COLLOQUY DID NOT COMPORT WITH CRIM.R.11 BECAUSE
APPELLANT NEVER ORALLY TENDERED A GUILTY PLEA.”
{¶ 41} In his second assignment, Murphy argues that the trial court erred
when it accepted his guilty pleas because he did not orally tender the pleas during
the hearing. The tendering of a plea of guilty has substantial consequences to a
criminal defendant. State v. Singleton, 169 Ohio App.3d 585, 2006-Ohio-6314. In
order to effectuate the tendering of a guilty plea, a criminal defendant must do so
1
We note that the pre-sentence investigation report does not reveal that
Murphy’s children received assistance of any kind. However, even if such a fact
had been established, it is wholly immaterial and irrelevant to disposition on
these offenses.
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by either signing a writing reflecting an express plea, or orally, either by saying
affirmatively that he is pleading “guilty” or by responding affirmatively to the trial
court’s question “are you pleading guilty,” phrased in the present tense, indicative
mood. See Id.
{¶ 42} We note that the record of the plea hearing contains the following
exchange between Murphy and the trial court:
{¶ 43} “The Court: By pleading guilty[,] you would be giving up all of these
rights that we’ve gone over. Are you telling the Court that you want to give those
rights up and plead guilty to breaking and entering and burglary as a third degree
felony?
{¶ 44} “Murphy: Yes, sir.” (Emphasis added).
{¶ 45} In our view, this exchange affirmatively establishes that Murphy orally
tendered guilty pleas to the charges against him. Thus, we conclude that the trial
court complied with Crim .R. 11 and did not err when it accepted Murphy’s guilty
pleas.
{¶ 46} Murphy’s second assignment of error is overruled.
IV
{¶ 47} Murphy’s first assignment of error having been sustained, his
sentence is vacated, and this matter is remanded for re-sentencing in accordance
with this opinion.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
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Andrew R. Picek
John Paul Rion
Hon. Douglas M. Rastatter