[Cite as State v. Queer, 2013-Ohio-3585.]
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. John W. Wise, J.
-vs-
Case No. 12-COA-041
SAMUEL J. QUEER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 12-CRI-046
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 19, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS MATTHEW J. MALONE
PROSECUTING ATTORNEY 11-1/2 East 2nd Street
MARISSA M. PAPPAS Ashland, Ohio 44805
ASSISTANT PROSECUTOR
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 12-COA-041 2
Wise, J.
{¶1} Appellant Samuel J. Queer appeals his sentences in the Court of
Common Pleas, Ashland County, for attempted robbery and theft. Appellee is the State
of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} According to the allegations in the record, on April 24, 2012, appellant and
an accomplice took a taxi to a Wal-Mart store in Ashland, Ohio and exited without
paying the driver. The couple then went into the store and took merchandise without
paying. Later that day, appellant went to a Moto Mart store and ordered the cashier to
empty the register, claiming he had a gun in his pocket. He also pushed a woman
during his flight from the scene.
{¶3} On April 27, 2012, appellant was indicted by the Ashland County Grand
Jury on one count of robbery (R.C. 2911.02(A)(2) – a felony of the second degree),
one count of robbery (R.C. 2911.02(A)(3) – a felony of the third degree), and three
counts of petty theft (R.C. 2913.02(A)(1) – misdemeanors of the first degree).
{¶4} Appellant appeared for arraignment on April 30, 2012, and entered pleas
of not guilty to all five counts. In August 2012, prior to trial, appellant and the State
reached a plea agreement. Essentially, appellant agreed to enter guilty pleas to two
counts of attempted robbery (one count a felony of the third degree and the other count
a felony of the fourth degree) and the three counts of petty theft.
{¶5} After holding a sentencing hearing and obtaining a presentence
investigation, the trial court sentenced appellant as follows:
Ashland County, Case No. 12-COA-041 3
{¶6} Count I, attempted robbery, in violation of R.C. 2923.02(A) and R.C.
2911.02(A)(2), a felony of the third degree, fifty-four months in prison and a fine of
$1,000.00;
{¶7} Count II, attempted robbery, in violation of R.C. 2923.02(A) and R.C.
2911.02(A)(3), a felony of the fourth degree, fifteen months in prison, to be served
consecutively, and a fine of $500.00;
{¶8} Count III, petty theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of
the first degree, one hundred eighty days in prison, to be served concurrently, and a
fine of $100.00;
{¶9} Count IV, petty theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of
the first degree, one hundred eighty days in prison, to be served concurrently, and a
fine of $100.00;
{¶10} Count V, petty theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of
the first degree, one hundred eighty days in prison, to be served concurrently, and a
fine of $100.00.
{¶11} The trial court further ordered that appellant receive credit for the two
hundred five days appellant spent in the Ashland County Jail, plus one day of credit for
each day served while awaiting transfer to the receiving institution.
{¶12} On November 6, 2012, appellant filed a notice of appeal. He herein raises
the following two Assignments of Error:
{¶13} “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,
IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT/APPELLANT
PURSUANT TO OHIO REVISED CODE SECTION 2929.14(C)(4); SAID
Ashland County, Case No. 12-COA-041 4
CONSECUTIVE SENTENCES EXCEEDED THE MAXIMUM PRISON TERM
PURSUANT TO OHIO REVISED CODE SECTION 2929.14(A)(3)(a), AND WERE NOT
CONSISTENT WITH THE DIRECTIVES ESTABLISHED IN OHIO REVISED CODE
SECTION 2929.14(C)(4) AND/OR WERE CLEARLY AND CONVINCINGLY
CONTRARY TO LAW.
{¶14} “II. THE SENTENCES 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).”
I.
{¶15} In his First Assignment of Error, appellant contends the trial court erred in
imposing consecutive sentences totaling sixty-nine months (fifty-four plus fifteen) on his
two attempted robbery convictions. We disagree.
{¶16} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a
plurality opinion, 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 at ¶ 4. If this
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, Licking
App.No. 2006–CA–41, 2006–Ohio–5823, ¶ 52.
Ashland County, Case No. 12-COA-041 5
{¶17} R.C. 2953.08(C)(1) states in pertinent part as follows:
{¶18} “In addition to the right to appeal a sentence granted under division (A) or
(B) of this section, a defendant who is convicted of or pleads guilty to a felony may
seek leave to appeal a sentence imposed upon the defendant on the basis that the
sentencing judge has imposed consecutive sentences under division (C)(3) of section
2929.14 of the Revised Code and that the consecutive sentences exceed the
maximum prison term allowed by division (A) of that section for the most serious
offense of which the defendant was convicted. ***.”
{¶19} Pursuant to App.R. 5(D)(2), an assignment of error challenging
consecutive sentences is to be deemed a timely motion for leave to appeal pursuant to
R.C. 2953.08(C).
{¶20} However, the right to appeal a sentence under R.C. 2953.08(C) does not
mean that consecutive sentences for multiple convictions may not exceed the
maximum sentence allowed for the most serious conviction. See State v. Beverly,
Delaware App.No. 03 CAA 02011, 2003–Ohio–6777, ¶ 17 (additional citations omitted).
{¶21} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The General Assembly has thus expressed its intent to revive the
statutory fact-finding provisions pertaining to the imposition of consecutive sentences
that were effective pre-Foster. See State v. Wells, Cuyahoga App.No. 98428, 2013-
Ohio-1179, ¶ 11. These revisions to the felony sentencing statutes now require a trial
court to make specific findings when imposing consecutive sentences. Nonetheless,
“[a]lthough H.B. 86 requires the trial court to make findings before imposing a
Ashland County, Case No. 12-COA-041 6
consecutive sentence, it does not require the trial court to give its reasons for imposing
the sentence.” State v. Bentley, Marion App.No. 9–12–31, 2013-Ohio-852, ¶ 12, citing
State v. Frasca, Trumbull App.No. 2011–T–0108, 2012–Ohio–3746, ¶ 57. Likewise,
“*** under H.B. 86, a trial court is not required to articulate and justify its findings at the
sentencing hearing when it imposes consecutive sentences as it had to do under S.B.
2.” State v. Redd, Cuyahoga App.No. 98064, 2012-Ohio-5417, ¶ 12. But the record
must clearly demonstrate that consecutive sentences are not only appropriate, but are
also clearly supported by the record. See State v. Bonnell, Delaware App.No.
12CAA3022, 2012–Ohio–5150.
{¶22} R.C. 2929.14(C)(4) provides, in relevant part:
{¶23} “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:
{¶24} “(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶25} “(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the offenses
Ashland County, Case No. 12-COA-041 7
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
{¶26} “(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.” (Emphases added).
{¶27} In the case sub judice, appellant does not dispute that the two felony
sentences are within the statutory parameters for third-degree and fourth-degree
felonies under R.C. 2929.14(A)(3) and (A)(4). See Appellant’s Brief at 7. The trial court
set forth the following findings at sentencing: “[C]onsecutive sentences in this case are
necessary to protect the public from future crimes and that consecutive sentences are
not disproportionate to the seriousness of your conduct and the danger that you pose
to the public. I am further finding that your history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from the future crimes, as
well, and it is therefore the Order of the Court that the sentence for Count I, 54-month
prison sentence be served consecutive to the sentence for Count II, the 15-month
prison sentence." Tr., Sentencing Hearing, October 15, 2012, at 12 - 13.
{¶28} The record indicates that appellant has a history of adult criminal
convictions going back more than ten years. In 2005, he was incarcerated in
Tennessee for five counts of aggravated robbery. Upon his release he began
reoffending. He was convicted of theft in March 2012 in Tennessee shortly before
coming to Ohio. Furthermore, his Tennessee record shows several probation
violations. Appellant also admittedly has a long history of drug and alcohol abuse that
relates to his offenses, but he has failed to seek treatment for these issues. He was
Ashland County, Case No. 12-COA-041 8
also named in numerous misconduct reports while being held at the Ashland County
Jail.
{¶29} Upon review, we find the trial court adequately made the findings required
by R.C. 2929.14(C)(4) in considering appellant's total sentence, and we hold the trial
court's consecutive sentences in this matter are not unreasonable, arbitrary or
unconscionable. We further hold said sentences are not contrary to law.
{¶30} Appellant lastly contends that his offenses were not “excessively serious
in nature” and therefore the trial court failed to properly consider the statutory
“seriousness” 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, 846 N.E.2d 1, 2006–Ohio–855,
¶ 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, Cuyahoga App.No. 97132, 2012–Ohio–1054, ¶ 11, citing
State v. Lloyd, Lake App.No. 006–L–185, 2007–Ohio–3013, ¶ 44. The findings of the
trial court in regard to R.C. 2929.11 and 2929.12 need not be in the sentencing
transcript if the findings are contained in the journal entry. See State v. O'Donnell,
Summit App.No. 23525, 2007–Ohio–1943, ¶ 7 (additional citations omitted).
{¶31} Upon review of the sentencing entries and the pertinent transcripts, we
find the trial court properly considered the purposes and principles of felony sentencing
and the factors of seriousness and recidivism.
{¶32} Appellant's First Assignment of Error is overruled.
Ashland County, Case No. 12-COA-041 9
II.
{¶33} In his Second Assignment of Error, appellant contends the imposition of
his prison sentences creates an unnecessary burden on state resources. We disagree.
{¶34} In State v. Shull, Ashland App.No. 2008-COA-036, 2009-Ohio-3105, we
reviewed a similar claim. We reiterated that 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, quoting State v. Ober (October 10, 1997), Greene
App. No. 97CA0019.
{¶35} As urged by the State in its response brief, appellant’s multiple offenses
on the same day in this case, his criminal history, and the indicators of his likeliness to
re-offend do not suggest that 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.
{¶36} Appellant's Second Assignment of Error is overruled.
{¶37} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Ashland County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
/s/ John W. Wise__________________
HON. JOHN W. WISE
/s/ W. Scott Gwin__________________
HON. W. SCOTT GWIN
/s/ Sheila G. Farmer_______________
HON. SHEILA G. FARMER
JWW/d 0731
Ashland County, Case No. 12-COA-041 10
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SAMUEL J. QUEER :
:
Defendant-Appellant : Case No. 12-COA-041
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed.
Costs assessed to appellant.
/s/ John W. Wise__________________
HON. JOHN W. WISE
/w/ W. Scott Gwin_________________
HON. W. SCOTT GWIN
/s/ Sheila G. Farmer ______________
HON. SHEILA G. FARMER
State v. Queer
Combined Opinion