[Cite as State v. Flanagan, 2012-Ohio-1516.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Case No. 11-CA-83
MICHAEL FLANAGAN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 11 CR 050
JUDGMENT: AFFIRMED IN PART; REVERSED IN
PART AND SENTENCE MODIFIED
DATE OF JUDGMENT ENTRY: March 28, 2012
APPEARANCES:
For Appellant: For Appellee:
WILLIAM T. CRAMER KENNETH OSWALT
470 Olde Worthington Rd., Ste. 200 LICKING COUNTY PROSECUTOR
Westerville, OH 43082
CHRISTOPHER REAMER
20 South Second St., 4th Floor
Newark, OH 43055
[Cite as State v. Flanagan, 2012-Ohio-1516.]
Delaney, J.
{¶1} Defendant-Appellant Michael Flanagan appeals from the sentence
imposed by the Licking County Court of Common Pleas upon his conviction for one
count of receiving stolen property in an amount greater than $500 and less than
$5,000. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on January 12, 2011 when workers at Crispin’s Auto
Wrecking discovered that approximately 200 pounds of copper were missing from their
scrap yard. The missing copper, graded “number one” (or highest quality), had
disappeared sometime the night before.
{¶3} Crispin’s employees immediately called other local scrap yards in search
of the missing copper. They discovered that Appellant had turned in almost 200
pounds of number-one copper that morning at Legend Smelting & Recycling, Inc.
Legend employees identified appellant as the customer who brought in the copper and
was paid $568.40. Legend set aside this copper and it was later identified as the
stolen copper due to its distinctive cut marks.
{¶4} Crispin’s contacted the Licking County Sheriff’s Department. Upon
investigation, appellant stated that he found the copper in the woods.
{¶5} Appellant was charged by indictment with one count of receiving stolen
property in violation of R.C. 2913.51(A). The value of the property is $500 or more but
less than $5000, and the offense is therefore a felony of the fifth degree.
{¶6} Appellant entered a plea of not guilty and the case proceeded to trial by
jury. At the conclusion of the trial, the jury found Appellant guilty as charged, and the
Licking County, Case No. 11-CA-83 3
trial court sentenced him to a prison term of one year, in addition to a period of three
years of post-release control.
{¶7} Appellant appeals from his conviction and sentence.
{¶8} Appellant raises two Assignments of Error:
{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A
MAXIMUM TERM WHEN THIS CASE DID NOT INVOLVE THE WORST FORM OF
THE OFFENSE OR THE WORST OFFENDER.”
{¶10} “II. THE TRIAL COURT VIOLATED R.C. 2967.28 BY IMPOSING
THREE YEARS OF POST-RELEASE CONTROL AT SENTENCING.”
I.
{¶11} In his first assignment of error, Appellant contends that the trial court
abused its discretion in sentencing him to a maximum term. We disagree.
{¶12} Appellant was sentenced on August 4, 2011. The version of R.C.
2929.14(C) in effect at that time stated in pertinent part:
* * * [T]he court imposing a sentence upon an offender for a felony may impose
the longest prison term authorized for the offense pursuant to division (A) of this
section only upon offenders who committed the worst forms of the offense,
upon offenders who pose the greatest likelihood of committing future crimes,
upon certain major drug offenders under division (D)(3) of this section, and
upon certain repeat violent offenders in accordance with division (D)(2) of this
section.
Appellant asserts that the trial court abused its discretion in sentencing him to a
maximum term because the instant case does not represent “the worst form of the
Licking County, Case No. 11-CA-83 4
offense,” and appellant is not an offender who “pose[s] the greatest likelihood of
committing future crimes.” We find, however, that the sentence was within the
statutory range and the trial court’s decision to impose the maximum sentence was
not unreasonable, arbitrary, or unconscionable.
{¶13} We begin with the well-established principle that in reviewing felony
sentences, we must use a two-step approach. “First, [we] must 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. If this first prong is satisfied, the trial court’s decision in imposing the term of
imprisonment shall be reviewed under and abuse of discretion standard.” State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶26. An abuse of
discretion is “more than an error of law or judgment; it implies that the court's attitude
is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶14} Additionally, although mandatory judicial fact-finding has been
eliminated, trial courts must still consider the general guidance factors of R.C. 2929.11
and 2929.12. See, State v. Wells, 5th Dist. No. 2009 CA 00168, 2010-Ohio-3126,
¶74; State v. McConnell, 5th Dist. No. 09 CA 12, 2009-Ohio-5998, ¶18.
{¶15} Appellant was convicted of one count of receiving stolen property, a
felony of the fifth degree, which is punishable by a prison term of six, seven, eight,
nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). It was within the trial court’s
discretion to consider any penalty within the range as long as the penalty was
considered in light of the factors listed in R.C. 2929.11 and 2929.12.
Licking County, Case No. 11-CA-83 5
{¶16} The trial court indicated that it had considered the purposes and
principles of sentencing as required by R.C. 2929.11 and the seriousness and
recidivism factors set forth in R.C. 2929.12.
{¶17} Appellant asserts, however, that the offense at issue “barely” qualified as
a felony in terms of the value, the property was recovered, and no violence occurred.
Nevertheless, as appellant admitted, he has a prior felony conviction for “grand theft of
a chemical and…manufacturing of methamphetamines.” The trial court could
reasonably conclude that the maximum sentence was appropriate under the
circumstances.
{¶18} We conclude that the trial court’s attitude was not unreasonable,
arbitrary, unconscionable, or otherwise an abuse of discretion in sentencing appellant
to a maximum term.
{¶19} Appellant’s first assignment of error is overruled.
II.
{¶20} Appellant argues in his second assignment of error that the trial court
erred in “unilaterally” imposing a period of three years of postrelease control because
postrelease control for a fifth-degree felony is discretionary based upon the
determination of the parole board. We agree.
{¶21} In regard to postrelease control, the trial court stated:
Upon release I’ll also impose three years of post-release control. If you violate
the terms of post-release control, you’re subject to being returned to the
penitentiary for nine months or, for repeated violations, one and a half years.
Should any violation itself constitute a new felony, you could be both returned
Licking County, Case No. 11-CA-83 6
to the penitentiary for one year or the total amount of post-release control time
remaining, whichever is greater, in addition to receiving a new prison term for
any new type of felony offense.
Appellant asserts that the trial court violated R.C. 2967.28(C), which states in pertinent
part: “Any sentence to a prison term for a felony of the * * * fifth degree * * * shall
include a requirement that the offender be subject to a period of post-release control
of up to three years after the offender's release from imprisonment, if the parole board
* * * determines that a period of post-release control is necessary for that offender.”
{¶22} In State v. Bezak, the Ohio Supreme Court held that when “postrelease
control is not properly included in a sentence for a particular offense, the sentence for
that offense is void.” 114 Ohio St.3d 94, 2007-Ohio-3250, syllabus. Subsequently, in
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6230, the court modified Bezak to
reflect that the sentence is only void in part and the defendant is entitled to a new
sentencing hearing limited to the proper imposition of postrelease control. However,
the court stated in lieu of resentencing, R.C. 2953.08(G)(2) also provides that an
appellate court may “increase, reduce or otherwise modify a sentence” to correct a
defect in sentence. Id. at ¶ 29.
{¶23} The Eighth District Court of Appeals has addressed a similar situation in
which a defendant was sentenced by a trial court to a three-year period of postrelease
control for charges that were felonies of the fifth degree. In State v. Hunter, 8th Dist.
No. 92032, 2009-Ohio-4194, the appellate court held the trial court usurped the
authority of the Adult Parole Authority which should have been the entity to determine
Licking County, Case No. 11-CA-83 7
whether appellant would be subject to postrelease control pursuant to R.C. 2967.28.
Id. at ¶ 29.
{¶24} Likewise, in this case, the trial court directly imposed discretionary
postrelease control upon appellant and in doing so, specifically overrode the parole
board’s statutory discretion under R.C. 2967.28. Therefore, we hold the trial court did
err in sentencing appellant and this court may correct the defect upon direct appeal
pursuant to R.C. 2953.08(G)(2). Fischer, supra.
{¶25} The sentence of the Licking County Court of Appeals is affirmed, in part,
and reversed, in part, and pursuant to R.C. 2953.08(G)(2) the sentence is modified to
vacate the court’s order imposing three years of postrelease control and to leave that
determination to the discretion of the Adult Parole Authority.
By: Delaney, P.J.
Gwin, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
[Cite as State v. Flanagan, 2012-Ohio-1516.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MICHAEL FLANAGAN :
:
: Case No. 11-CA-83
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is affirmed, in part, and reversed, in part, and
the sentence modified in accordance with our Opinion. Costs assessed equally to the
parties.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS