State v. Dudley

[Cite as State v. Dudley, 2014-Ohio-584.]

COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 13-COA-017
:
LARRY W. DUDLEY, JR. :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 12-CRI-
131

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 10, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RAMONA FRANCESCONI ROGERS MATTHEW J. MALONE
ASHLAND CO. PROSECUTOR 11 ½ East Second St.
PAUL T. LANGE Ashland, OH 44805
110 Cottage Street, Third Floor
Ashland, OH 44805
Ashland County, Case No.13-COA-017 2

Delaney, J.

{¶1} Appellant Larry W. Dudley, Jr. appeals from the May 16, 2013 Judgment

Entry – Sentencing of the Ashland County Court of Common Pleas. Appellee is the

state of Ohio. This case is related to but not consolidated with State v. Dudley, 5th Dist.

Ashland No. 13-COA-016 (Trial Court No. 13-CRI-024)

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant's original conviction is

unnecessary to our disposition of this appeal.

{¶3} Appellant was charged and ultimately entered pleas of no contest to the

following charges in two separate criminal cases:

Case No. Count Offense Revised Code Degree Sentence
No. Section
12-CRI-131 I Burglary 2911.12(A)(3) F3 30 months
12-CRI-131 III Burglary 2911.12(A)(3) F3 30 months
12-CRI-131 IV Burglary 2911.12(A)(3) F3 30 months
13-CRI-024 I B&E 2911.13(A) F5 12 months
13-CRI-024 II Theft 2913.02(A)(1) M1 90 days
13-CRI-024 III Theft 2913.02(A)(1) M1 90 days
13-CRI-024 IV B&E 2911.13(A) F5 12 months
13-CRI-024 V Theft 2913.02(A)(1) M1 90 days
13-CRI-024 VI B&E 2911.13(A) F5 12 months
13-CRI-024 VII Theft 2913.02(A)(1) M1 90 days
13-CRI-024 VIII Theft 2913.02(A)(1) F5 12 months
from
elderly
person

{¶4} After appellant changed his pleas and prior to entering sentences, the trial

court ordered a presentence investigation (P.S.I.) which has been made part of the

record on appeal. The extensive P.S.I. indicates appellant engaged in a series of thefts
Ashland County, Case No.13-COA-017 3

and burglaries with a cohort to support a serious drug habit. Appellant has an extensive

criminal history of similar offenses.

{¶5} In this case, the trial court sentenced appellant to 30 months in prison for

each count (I, III, and IV), for a consecutive prison term of 90 months. In addition, the

trial court ordered the sentence to be served consecutively to Case No. 13-CRI-024, for

a total prison term of 138 months. The trial court found consecutive sentences are

necessary to protect the public from future crimes and to punish the offender, and are

not disproportionate to the seriousness of appellant’s conduct. As the trial court

sentenced appellant to prison, appellant cursed and threatened the trial judge.

Appellant was then removed from the courtroom and sentencing continued.

{¶6} Appellant now appeals from the judgment entry of conviction and

sentence entered by the trial court on May 16, 2013.

{¶7} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶8} “I. THE COURT OF COMMON PLEAS OF ASHLAND, OHIO IMPOSED

A SENTENCE UPON DEFENDANT/APPELLANT THAT WAS CLEARLY AND

CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF SAID COURT’S

DISCRETION.”

{¶9} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED

CODE SECTION 2929.13(A).”
Ashland County, Case No.13-COA-017 4

{¶10} “III. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, AFTER THE APPELLANT HAD BEEN REMOVED

FROM THE COURTROOM, WAS IN VIOLATION OF APPELLANT’S RIGHT TO BE

PRESENT AT ALL STAGES OF HIS TRIAL AS PROVIDED BY THE

CONFRONTATION CLAUSE OF THE UNITED STATES CONSTITUTION; THE OHIO

CONSTITUTION, ARTICLE I, SECTION 10; AND CRIMINAL RULE 43(A).”

ANALYSIS

I., II.

{¶11} In his first and second assignments of error, appellant contends the

sentence of the trial court is contrary to law, an abuse of discretion, and imposes an

unnecessary burden on state resources. .

{¶12} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. 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.” Kalish, id. at ¶ 4. If the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks

sufficient data to justify the sentence, the court may well abuse its discretion by

imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.

Licking No.2006–CA–41, 2006–Ohio–5823, ¶ 52.

{¶13} In Kalish the Ohio Supreme Court found the trial court's sentencing

decision was not contrary to law. “The trial court expressly stated that it considered the
Ashland County, Case No.13-COA-017 5

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12.

Moreover, it properly applied post release control, and the sentence was within the

permissible range. Accordingly, the sentence is not clearly and convincingly contrary to

law.” Kalish, supra, 2008-Ohio-4912 at ¶ 18. The Court further held the trial court “gave

careful and substantial deliberation to the relevant statutory considerations” and that

there was “nothing in the record to suggest that the court's decision was unreasonable,

arbitrary, or unconscionable.” Id. at ¶ 20.

{¶14} Similarly, in this case, we find the trial court's sentencing complies with

applicable rules and sentencing statutes. The sentence is within the statutory felony

sentencing range. Appellant was convicted of three counts of burglary, all felonies of

the third degree.

{¶15} Furthermore, the record reflects the trial court considered the purposes

and principles of sentencing and the seriousness and recidivism factors as required in

Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised appellant

regarding post release control. Therefore, the sentence is not clearly and convincingly

contrary to law.

{¶16} We next review the sentence pursuant to an abuse-of-discretion standard.

Kalish, 2008-Ohio-4912 at ¶ 4; State v. Firouzmandi, 2006-Ohio-5823 at ¶ 40. We find

the trial court assessed the relevant statutory considerations. In light of the

comprehensive P.S.I. which is part of our review, we find the trial court considered

appellant's criminal history, lack of amenability to rehabilitation, and motivation to

support his drug habit.
Ashland County, Case No.13-COA-017 6

{¶17} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor. We find nothing in the record of appellant's case to suggest that

his sentence was based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment. State v. Firouzmandi, 2006-Ohio-5823 at ¶ 43. We find

the trial court's statements at the sentencing hearing were guided by the overriding

purposes of felony sentencing to protect the public from future crime by the offender

and others and to punish the offender. R.C. 2929.11.

{¶18} Appellant further argues the trial court failed to properly consider the

statutory seriousness and recidivism factors in its analysis. R.C. 2929.11 and 2929.12

require consideration of the purposes and principles of felony sentencing, as well as the

factors of seriousness and recidivism. See State v. Mathis, 109 Ohio St.3d 54, 2006–

Ohio–855, 846 N.E.2d 1, ¶ 38. However, “in exercising its discretion, a court is merely

required to ‘consider’ the purposes of sentencing in R.C. 2929.11 and the statutory * * *

factors set forth in R.C. 2929.12.” State v. Sutton, 8th Dist. Cuyahoga No. 97132, 2012–

Ohio–1054, ¶ 11, citing State v. Lloyd, 11th Dist. Lake No. 006–L–185, 2007–Ohio–

3013, ¶ 44. We find the trial court properly considered the purposes and principles of

felony sentencing and the factors of seriousness and recidivism as noted on the record

at the sentencing hearing.
Ashland County, Case No.13-COA-017 7

{¶19} Appellant also contends his sentence violates the General Assembly's

intent to minimize the unnecessary burden on state and local government resources.

Specifically, appellant argues that because of the high cost of housing prison inmates,

the cost of housing him in prison beyond the minimum sentence creates an

unnecessary burden on state and local resources.

{¶20} In State v. Shull, 5th Dist. Ashland No.2008–COA–036, 2009–Ohio–3105,

we reviewed a similar claim. We reiterated although the burden on state resources may

be a relevant sentencing criterion as set forth in R.C. 2929.13, Ohio law “does not

require trial courts to elevate resource conservation above the seriousness and

recidivism factors.” Shull at ¶ 22, citing State v. Ober, 2nd Dist. Greene No. 97CA0019,

1997 WL 624811 (October 10, 1997). Appellant's multiple offenses, his criminal history,

and the indicators of his likeliness to re-offend do not suggest his sentence is an

unnecessary burden on state resources, and we otherwise find no abuse of discretion in

the trial court's sentencing decision in this regard.

{¶21} Appellant’s first and second assignments of error are overruled.

III.

{¶22} In his third assignment of error, appellant argues the trial court improperly

removed him from the courtroom and continued the sentencing hearing in his absence.

{¶23} One of most basic rights reserved by the Confrontation Clause is a

defendant's correlative right to be present in the courtroom in every stage of the trial.

Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Section 10,

Article I of the Ohio Constitution and Crim. R. 43(A) also require the defendant’s

presence. This right, however, is not absolute; appellant's presence is mandated unless
Ashland County, Case No.13-COA-017 8

he waived his right or there existed extraordinary circumstances requiring sequestration,

such as misconduct. State v. Williams, 6 Ohio St .3d 281, 286, 452 N.E.2d 1323 (1983).

{¶24} Crim.R. 43(B) permits a court to exclude a defendant from any stage of a

hearing or trial for disruptive conduct and provides:

Where a defendant's conduct in the courtroom is so disruptive that

the hearing or trial cannot reasonably be conducted with his

continued presence, the hearing or trial may proceed in his

absence, and judgment and sentence may be pronounced as if he

were present. Where the court determines that it may be essential

to the preservation of the constitutional rights of the defendant, it

may take such steps as are required for the communication of the

courtroom proceedings to the defendant.

{¶25} No objection was raised upon appellant’s removal from the courtroom or

upon the trial court’s decision to go forward with the sentencing hearing in his absence.

Williams, supra, points out that while an appellant’s absence from the courtroom may be

constitutional error, the relevant inquiry is whether appellant was prejudiced thereby:

Errors of constitutional dimension are not ipso facto prejudicial. As

the United States Supreme Court stated in the landmark case of

Chapman v. California (1967), 386 U.S. 18, 22, 87 S.Ct. 824, 17

L.Ed.2d 705: “ * * * We conclude that there may be some

constitutional errors which in the setting of a particular case are so

unimportant and insignificant that they may, consistent with the

Federal Constitution, be deemed harmless, not requiring the
Ashland County, Case No.13-COA-017 9

automatic reversal of the conviction.” In order to be deemed

nonprejudicial, error of constitutional stature, either state or federal,

must be “harmless beyond a reasonable doubt.” Chapman v.

California, supra, at 24; State v. Abrams (1974), 39 Ohio St.2d 53

[68 O.O.2d 30], paragraph two of the syllabus. Particularly, as

regards a defendant's constitutional right to be present at all stages

of his trial, prejudicial error exists only where “a fair and just hearing

* * * [is] thwarted by his absence.” Snyder v. Massachusetts (1934),

291 U.S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674. See, also, United

States v. Brown (C.A.6, 1978), 571 F.2d 980.

State v. Williams, 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983).

{¶26} Appellant’s absence from the courtroom for the conclusion of the hearing

is not sufficient to show plain error. “So far as the Fourteenth Amendment is concerned,

the presence of a defendant is a condition of due process to the extent that a fair and

just hearing would be thwarted by his absence, and to that extent only.” Snyder v.

Massachusetts, 291 U.S. 97, 107–108, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

{¶27} In this case, there is nothing in the record to establish appellant’s absence

thwarted a fair and just hearing. Appellant was present for every stage of the

proceedings except the final portion of sentencing which included the calculation of

credit for time served, imposition of court costs, conditional imposition of restitution,1

post release control, and appellant’s right to appeal. Appellant was removed from the

courtroom because he repeatedly cursed at and threatened the trial judge upon

1
The conditional order of restitution is addressed in the related opinion, State v. Dudley,
5th Dist. Ashland No. 13-COA-016.
Ashland County, Case No.13-COA-017 10

imposition of the prison term. We note no objection was raised to continuing the

sentencing hearing in appellant’s absence.2

{¶28} Appellant’s third assignment of error is overruled.

CONCLUSION

{¶29} Appellant’s three assignments of error are overruled and the judgment of

the Ashland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.

2
Some courts have found that found that where the record indicates no objection was
raised when a defendant was removed from the courtroom, the appellant has waived
the issue on appeal. State v. Tate, 9th Dist. Summit No. 21943, 2005-Ohio-2156, ¶ 16,
citing Holman v. Grandview Hosp. & Med. Ctr., 37 Ohio App.3d 151, 157, 524 N.E.2d
903 (2nd Dist.1987).