[Cite as State v. Graves, 2014-Ohio-1915.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
RAYMOND GRAVES : Case No. 13-COA-032
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland
County Court of Common Pleas,
Case No. 08-CRI-042
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 5, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL ERIN N. POPLAR
Ashland County Prosecutor DANIEL D. MASON
Poplar & Mason, LLC
By: PAUL T. LANGE 103 Milan Ave., Suite 6
Assistant Prosecuting Attorney Amherst, OH 44001
110 Cottage Street, Third Floor
Ashland, OH 44805
Ashland County, Case No. 13-COA-32 2
Baldwin, J.
{¶1} Appellant Raymond Graves appeals a judgment of the Ashland County
Common Pleas Court resentencing him to thirty-six months incarceration for a 2008
conviction of failure to register notice of a change of address (R.C. 2950.05(E)(1)).
Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In 1985, appellant was convicted of four counts of rape. Upon his release
from prison in 2003, appellant was classified a sexually oriented offender, which required
him to register his address for a period of ten years with the sheriff's office in any county
in which he resided. On August 16, 2006, and again on August 16, 2007, appellant
registered his address with the Ashland County Sheriff's Department.
{¶3} In October of 2007, Ashland County Sheriff's Capt. Carl Richert, who is
responsible for sex offender registration in the county, learned that appellant's home at
348 Country Rd. 281, Sullivan, Ohio, was in foreclosure and scheduled to be sold at a
sheriff's sale. Capt. Richert sent appellant a certified letter in January, 2008, advising him
he needed to re-register by January 30, 2008. The letter was returned unclaimed.
Sometime following the return of the letter, the captain went to appellant's residence, but
found no one there and the house vacant. On January 30, 2008, after the sheriff's sale
had occurred, Capt. Terry Hamilton proceeded to appellant's home to determine whether
he had vacated the residence. Outside the home, Capt. Hamilton spoke with appellant
who informed the officer that he had already moved out of the residence. After Capt.
Hamilton advised Capt. Richert of appellant's status, Capt. Richert made several visits to
Ashland County, Case No. 13-COA-32 3
appellant's home. On each occasion, Capt. Richert found no signs indicating anyone
was living in the residence.
{¶4} In early 2008, Michelle Lamb and her husband purchased appellant's
home at a sheriff's sale. When the Lambs visited the home in February, 2008, they found
no signs of anyone living in the house. The couple took possession of the home on
March 25, 2008, and spent the next couple of weeks working on the interior of the home.
Michelle Lamb never observed any signs someone was living in the home.
{¶5} Appellant never registered a change of address with the Ashland County
Sheriff's Office. As a result, the Ashland County Grand Jury indicted Appellant on one
count of failure to register change of address, in violation of R.C. 2950.05(F)(1), a felony
of the first degree. The matter proceeded to jury trial on June 17, 2008. After hearing all
the evidence and deliberations, the jury found Appellant guilty as charged. The trial court
ordered a presentence report and deferred sentencing. The trial court conducted a
sentencing hearing on September 8, 2008, and ordered Appellant to serve a three year
term of incarceration. This court affirmed the conviction on appeal. State v. Graves, 5th
Dist. Ashland No. 08-COA-034, 2009-Ohio-2976.
{¶6} Appellant was released from prison in April of 2011, and placed on post-
release control for five years. Following the Ohio Supreme Court’s decision in State v.
Howard, 134 Ohio St.3d 467, 983 N.E.2d 341, 2012-Ohio-5738, appellant filed a motion
to correct an illegal sentence, arguing that the application of Howard to appellant’s case
made him guilty of a felony of the third degree, rather than a felony of the first degree.
The court held a re-sentencing hearing on the instant case. At the same hearing,
Ashland County, Case No. 13-COA-32 4
appellant was sentenced for a 2013 conviction of failure to register a change in address,
which he has appealed in Ashland App. No. 13-COA-033.
{¶7} The trial court re-sentenced appellant to a term of thirty-six months
incarceration, giving him credit for thirty-six months already served. Appellant assigns
three errors:
{¶8} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM
SENTENCE.
{¶9} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE
MAXIMUM SENTENCE IN PRISON IMPOSING AN UNNCESSARY BURDEN ON
STATE AND LOCAL RESOURCES.
{¶10} “III. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.”
I.
{¶11} Appellant argues that the court erred in imposing the maximum sentence
of thirty-six months.
{¶12} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912, 896 N.E.2d 124, set forth a two step process for examining felony
sentences. 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.” Id. at ¶ 4. If this first step is
satisfied, the second step requires that the trial court's decision be reviewed under an
Ashland County, Case No. 13-COA-32 5
abuse of discretion standard. Id. An abuse of discretion implies that the court's attitude
is unreasonable, arbitrary, or unconscionable. Id. at ¶19.
{¶13} R.C. 2929.12 sets forth the factors the court is to consider in felony
sentencing:
{¶14} “(A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter upon an offender for
a felony has discretion to determine the most effective way to comply with the purposes
and principles of sentencing set forth in section 2929.11 of the Revised Code. In
exercising that discretion, the court shall consider the factors set forth in divisions (B)
and (C) of this section relating to the seriousness of the conduct, the factors provided in
divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism,
and the factors set forth in division (F) of this section pertaining to the offender's service
in the armed forces of the United States and, in addition, may consider any other factors
that are relevant to achieving those purposes and principles of sentencing.
{¶15} “(B) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant factors, as
indicating that the offender's conduct is more serious than conduct normally constituting
the offense:
{¶16} “(1) The physical or mental injury suffered by the victim of the offense due
to the conduct of the offender was exacerbated because of the physical or mental
condition or age of the victim.
{¶17} “(2) The victim of the offense suffered serious physical, psychological, or
economic harm as a result of the offense.
Ashland County, Case No. 13-COA-32 6
{¶18} “(3) The offender held a public office or position of trust in the community,
and the offense related to that office or position.
{¶19} “(4) The offender's occupation, elected office, or profession obliged the
offender to prevent the offense or bring others committing it to justice.
{¶20} “(5) The offender's professional reputation or occupation, elected office, or
profession was used to facilitate the offense or is likely to influence the future conduct of
others.
{¶21} “(6) The offender's relationship with the victim facilitated the offense.
{¶22} “(7) The offender committed the offense for hire or as a part of an
organized criminal activity.
{¶23} “(8) In committing the offense, the offender was motivated by prejudice
based on race, ethnic background, gender, sexual orientation, or religion.
{¶24} “(9) If the offense is a violation of section 2919.25 or a violation of section
2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family
or household member at the time of the violation, the offender committed the offense in
the vicinity of one or more children who are not victims of the offense, and the offender
or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of
one or more of those children.
{¶25} “(C) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant factors, as
indicating that the offender's conduct is less serious than conduct normally constituting
the offense:
{¶26} “(1) The victim induced or facilitated the offense.
Ashland County, Case No. 13-COA-32 7
{¶27} “(2) In committing the offense, the offender acted under strong
provocation.
{¶28} “(3) In committing the offense, the offender did not cause or expect to
cause physical harm to any person or property.
{¶29} “(4) There are substantial grounds to mitigate the offender's conduct,
although the grounds are not enough to constitute a defense.
{¶30} “(D) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors indicating that the
offender is likely to commit future crimes:
{¶31} “(1) At the time of committing the offense, the offender was under release
from confinement before trial or sentencing, under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release control
pursuant to section 2967.28 or any other provision of the Revised Code for an earlier
offense or had been unfavorably terminated from post-release control for a prior offense
pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised Code.
{¶32} “(2) The offender previously was adjudicated a delinquent child pursuant
to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter
2152. of the Revised Code, or the offender has a history of criminal convictions.
{¶33} “(3) The offender has not been rehabilitated to a satisfactory degree after
previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised
Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the
offender has not responded favorably to sanctions previously imposed for criminal
convictions.
Ashland County, Case No. 13-COA-32 8
{¶34} “(4) The offender has demonstrated a pattern of drug or alcohol abuse that
is related to the offense, and the offender refuses to acknowledge that the offender has
demonstrated that pattern, or the offender refuses treatment for the drug or alcohol
abuse.
{¶35} “(5) The offender shows no genuine remorse for the offense.
{¶36} “(E) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors indicating that the
offender is not likely to commit future crimes:
{¶37} “(1) Prior to committing the offense, the offender had not been adjudicated
a delinquent child.
{¶38} “(2) Prior to committing the offense, the offender had not been convicted
of or pleaded guilty to a criminal offense.
{¶39} “(3) Prior to committing the offense, the offender had led a law-abiding life
for a significant number of years.
{¶40} “(4) The offense was committed under circumstances not likely to recur.
{¶41} “(5) The offender shows genuine remorse for the offense.”
{¶42} The trial court’s sentencing entry states that the court fully considered the
provisions of Revised Code Chapter 2929, the circumstances of the offense, the
information contained in the pre-sentence investigation report, and the information
furnished by the parties. Appellant was convicted of four counts of rape in 1985, and
while in prison, was convicted of assault for attacking a prison guard. At the sentencing
hearing, appellant expressed no remorse for his conduct, continuing to maintain his
Ashland County, Case No. 13-COA-32 9
innocence. The record does not reflect that the trial court abused its discretion in
sentencing appellant to thirty-six months incarceration.
II.
{¶43} In his second assignment of error, appellant argues that imposition of a
prison sentence in this case imposes and unnecessary burden on state or local
government resources.
{¶44} R.C. 2929.11(A) provides:
{¶45} “(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.”
{¶46} As we noted in State v. Ferenbaugh, 5th Dist. Ashland No. 03COA038,
2004–Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial
courts discretion to impose sentences. Nowhere within the statute is there any guideline
for what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. Ashland
No.2008–COA036, 2009–Ohio–3105, this Court reviewed a similar claim. We found that,
although burdens on State resources may be a relevant sentencing criteria, state law
does not require trial courts to elevate resource conservation above seriousness and
Ashland County, Case No. 13-COA-32 10
recidivism factors. Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No. 97CA0019,
1997 WL 624811 (October 10, 1997).
{¶47} Appellant raised this assignment of error in his first appeal in the instant
case, and we rejected his argument, stating:
{¶48} “The record sub judice is devoid of any evidence to support the claim of an
‘unnecessary burden on the state or local government resources.’ We find the trial
court's imposition of a prison term was appropriate in this matter and does not impose an
unnecessary burden on state or local resources.” Graves, supra, at ¶19.
{¶49} The record from the resentencing is equally devoid of any evidence to
support appellant’s claim, and he further has been given credit for time served for the
entire thirty-six month sentence. Therefore, the court’s prison sentence did not impose
any additional burden on state or local resources.
{¶50} The second assignment of error is overruled.
III.
{¶51} In his final assignment of error, appellant argues that counsel was
ineffective for filing the motion to correct an illegal sentence.
{¶52} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). In other words, appellant must show that counsel’s conduct so undermined
Ashland County, Case No. 13-COA-32 11
the proper functioning of the adversarial process that the trial cannot be relied upon as
having produced a just result. Id.
{¶53} Counsel’s motion resulted in appellant being resentenced for a third
degree felony as opposed to a first degree felony. Appellant has not demonstrated how
he was prejudiced by the filing of the motion, as the result inured to his benefit.
{¶54} The third assignment of error is overruled. The judgment of the Ashland
County Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.
State v. Graves
Combined Opinion