[Cite as State v. Wilson, 2011-Ohio-3463.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95553
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DIANA WILSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534919
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BEFORE: Rocco, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: July 14, 2011
-i-
ATTORNEY FOR APPELLANT
Michael K. Webster
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: John P. Colan
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} After entering guilty pleas to charges of attempted arson,
vandalism, and child endangering, defendant-appellant Diana Wilson appeals
from the four-year prison sentence imposed by the trial court.
{¶ 2} Wilson presents one assignment of error. She argues the trial
court failed to make the necessary “findings” prior to imposing more than the
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minimum term upon her as a person who never previously had served a
prison term. Since the authority upon which she relies predates the supreme
court’s opinion in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, her argument is unpersuasive.
{¶ 3} Wilson’s assignment of error, consequently, is overruled, and her
sentence is affirmed.
{¶ 4} Wilson originally was indicted in this case on five counts, charged
with aggravated arson, vandalism, and three counts of child endangering.
She entered a not guilty plea at her arraignment.
{¶ 5} Within two months of Wilson’s indictment, the court psychiatric
clinic determined she was not competent to aid in her own defense. The trial
court therefore referred her to a facility for that purpose. A month later,
Wilson returned to the court, whereupon the clinic also determined she was
sane at the time of the incident that led to her indictment.
{¶ 6} When the state notified the trial court that Wilson had agreed to
a plea bargain, the trial court conducted a hearing. The prosecutor outlined
the arrangement, i.e., in exchange for Wilson’s guilty pleas to Count 1,
amended to constitute a third-degree felony,1 Count 2, and Count 3, amended
1 The prosecutor initially failed to specify that Wilson would be pleading
guilty to attempted arson, but the trial court subsequently clarified the matter, and
Wilson acknowledged she pleaded guilty to this charge.
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to include all of her children’s names, the state would dismiss the other two
counts. Thus, Wilson was aware that a third-degree felony was “punishable
by anywhere between one and five years incarceration.”
{¶ 7} The trial court conducted a colloquy prior to accepting Wilson’s
pleas; the court, too, notified Wilson that Count 1 “carr[ied] anywhere from 1
to 5 years in prison.” The court found Wilson guilty. Rather than ordering
the preparation of a presentence report, the trial court indicated it would rely
on the psychiatric reports.
{¶ 8} When the case was called for sentencing, the trial court indicated
it had requested the prosecutor to have the detective who investigated
Wilson’s case present because the court “didn’t have some of the facts” at the
plea hearing. The record reflects the detective’s investigation consisted only
of “speaking with several family members,” consulting the fire department’s
report, and obtaining information from the homeowner’s insurance company.
{¶ 9} The detective described the damage done to the home, indicated
Wilson had set fires in three separate locations, and the house suffered smoke
and water damage as a consequence. The detective set the restitution
amount at $12,500.
{¶ 10} Without a presentence report to review, the trial court accepted
defense counsel’s representation that Wilson had been convicted previously of
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only a misdemeanor disorderly conduct offense. The trial court then read for
the record a “suicide note” Wilson had left at the scene of the incident;
therein, Wilson indicated she had been a child victim of sexual abuse and had
never received treatment.
{¶ 11} After listening to the prosecutor, defense counsel, and Wilson
herself, the trial court pronounced sentence. The court began by stating:
{¶ 12} “The — Ms. Wilson, the purpose of sentencing is punishment.
That’s the foremost purpose under the statute, under the law.2 * * * This case
calls for punishment.
{¶ 13} “Now, I’m going to take into consideration all the factors. I
believe your remorse is sincere. * * * I’m going to accept on face value that
you were the victim of sexual abuse and I’m going to accept that you do have
love and care for your children at this point, but you, on November 21 [2009],
committed a very violent, dangerous act for [sic] which society must be
protected.
{¶ 14} “You have to pay this punishment. * * * [T]his imprisonment will
put you in a position where you cannot harm other people. * * *
2However, R.C. 2929.11 states: “The overriding purposes of felony sentencing
are to protect the public from future 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 * * *, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or both.”
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{¶ 15} “You set fire to a home that could have killed people. * * *
{¶ 16} “There’s a whole series of calamities that could occur in a fire * *
*.”
{¶ 17} The trial court ultimately imposed concurrent terms of four years
on Count 1, one year on Count 2, and six months on Count 3.
{¶ 18} Wilson appeals from her sentence, presenting the following
assignment of error.
{¶ 19} “I. The trial court erred in imposing consecutive terms of
incarceration without providing findings and reasons in support of
those findings.”
{¶ 20} Wilson argues that, because she had not previously served a
prison term, R.C. 2929.14(B) required the trial court to make findings and
provide reasons before imposing a sentence that was more than the minimum
term of incarceration. Wilson supports her argument with authority that
predates the Ohio Supreme Court’s opinion in Foster. In light of that fact,
her argument is unpersuasive.
{¶ 21} This court reviews felony sentences to determine whether there is
statutory compliance with sentencing and whether the court abused its
discretion by imposing sentence. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, at ¶4. Wilson’s four-year sentence was
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within the five-year range for third degree felonies. Thus, this court must
determine whether the court abused its discretion in this case. State v.
Bonnell, Cuyahoga App. No. 91785, 2009-Ohio-2721, ¶14.
{¶ 22} Wilson was not entitled to a presumption of the shortest available
prison term as a first offender. In Foster, the supreme court severed former
R.C. 2929.14(B) as unconstitutional. Id. at paragraph two of the syllabus.
Therefore, the trial court was vested with the discretion to sentence Wilson to
any prison term allowable by law under R.C. 2929.14(A). Id. at paragraph
seven of the syllabus.
{¶ 23} Although Wilson argues that the court abused its discretion by
imposing a four-year sentence because she was a first-time offender, she
showed remorse for her behavior, and her medications had stabilized her
mental disorder, the record reflects the trial court took these facts into
consideration. Nevertheless, the court determined that a four-year prison
term was appropriate.
{¶ 24} Under these circumstances, this court cannot find the trial court
abused its discretion. State v. Waugh, Cuyahoga App. No. 92896,
2010-Ohio-1976. The trial court indicated its belief that the potential harm
of Wilson’s crimes outweighed any factors that mitigated punishment.
Bonnell.
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{¶ 25} Wilson’s assignment of error, accordingly, is overruled.
{¶ 26} Wilson’s sentence is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
State v. Wilson
Combined Opinion