[Cite as State v. DeNiro, 2013-Ohio-2826.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2012-L-121
- vs - : and 2012-L-122
DINO R. DENIRO, :
Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 11 CR
000517 and 12 CR 000073.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Dino R. DeNiro, appeals his sentence following his guilty plea in
the Lake County Court of Common Pleas to failure to comply with an order or signal of a
police officer and felony theft. At issue is whether the trial court abused its discretion in
imposing the maximum sentence. For the reasons that follow, we affirm.
{¶2} Appellant was indicted in two separate cases. In Case No. 11 CR 517, he
was charged in a three-count indictment with failure to comply with an order or signal of
a police officer, a third-degree felony; theft, a fifth-degree felony; and failure to comply
with an order or signal of a police officer, a fourth-degree felony.
{¶3} In Case No. 12 CR 73, appellant was indicted for theft, a fifth-degree
felony, and possessing criminal tools, a fifth-degree felony. He pled not guilty in both
cases.
{¶4} Appellant subsequently entered a plea bargain with the state pursuant to
which, on August 10, 2012, he pled guilty in both cases. In Case No. 11 CR 517, he
pled guilty to failure to comply, a fourth-degree felony. In Case No. 12 CR 73, he pled
guilty to theft, a fifth-degree felony.
{¶5} The prosecutor outlined the factual basis for appellant’s guilty pleas. In
Case No. 11 CR 517, on August 6, 2011, at 2:45 p.m., a Mentor police officer was
dispatched to Dillard’s Department Store in Mentor on a call of a theft by a male, later
identified as appellant, who just left the store, entered a vehicle, and drove away. While
the officer was driving toward Dillard’s, he saw a vehicle matching the description and
bearing the license plate number provided by Dillard’s security. The officer accelerated
his cruiser to catch up with appellant and activated his overhead lights. Appellant then
drove faster, reaching speeds in excess of 100 m.p.h. and drove through a red light.
Due to appellant’s dangerously high speeds, the officer suspended his pursuit. He then
went to Dillard’s to take statements. The store security officer said he saw appellant
walking in the Polo section carrying a bag. He said appellant took several shirts; placed
them in his bag; and then walked out of the store without paying for them. Appellant ran
to his car and the security officer tried to chase him, but was unsuccessful.
{¶6} In Case No. 12 CR 73, some five months later, on January 18, 2012, at
around 2:30 p.m., Willoughby Police received a theft report from security at the Target
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Department Store in that city. Security reported they had a shoplifter, later identified as
appellant, who just ran out of the store.
{¶7} Willoughby police officers drove to that location. As they approached the
store, Target security was outside and pointed appellant out to the officers as he was
running. One police officer circled appellant and stopped him. Appellant was carrying a
bag containing five sets of headphones. The police officers brought appellant to the
store, and Target security identified him as the male they saw take these items without
paying for them.
{¶8} Target security also reported they had seen appellant on four prior
occasions between April and August 2011 come into the store; go to the headphone
section; use a knife to cut sets of headphones off their locked hooks; take four to seven
sets of headphones each time; and then leave the store without paying for them.
{¶9} The court found appellant’s guilty pleas were voluntary; accepted his
pleas; and found him guilty in Case No. 11 CR 517 of failure to comply and in Case No.
12 CR 73 of felony theft. A nolle prosequi was entered on all other counts in both
indictments. The court referred appellant to the probation department for a pre-sentence
report.
{¶10} The case came on for sentencing on September 21, 2012. Appellant told
the court he has been a drug addict for more than 30 years. He said he has been clean
since 2009, following his most recent release from prison. He said that after he was
released, he learned his sister had cancer, and he committed the instant thefts to get
money to help her. He said he knew what he did was wrong and he is sorry.
{¶11} The prosecutor said that, while appellant told the court he committed the
current offenses because he was trying to help his sister, when he was arrested in
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January 2012 for the Target thefts, he told the police a different story. Appellant said he
went to Target to steal because he needed money to get a place to stay as he had
recently left his girlfriend. He also told the police he often goes to Target to steal
headphones so he can sell them and get money to buy drugs because he is an addict.
{¶12} The court stated that appellant’s criminal record spanning more than 30
years is “unbelievably horrible.” He has some 25 prior convictions for crimes, including
theft offenses, drug offenses, offenses against justice, and offenses of violence, such as
aggravated burglary and robbery. He served five different prison terms. Further, he
had many probation and parole violations. Moreover, he committed the instant offenses
while he was on post-release control.
{¶13} The court stated on the record and in its sentencing entries that it had
considered the purposes of felony sentencing in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12. The court stated that in light of appellant’s lengthy
criminal record, there was a great likelihood of recidivism. The court also noted this
case was more serious because, immediately after the theft at Dillard’s, in attempting to
elude the police, appellant was travelling 100 m.p.h. on a city street and went through a
red light, thus jeopardizing the public’s safety.
{¶14} In Case No. 11 CR 517, the case involving Dillard’s, the court sentenced
appellant to 18 months in prison for failure to comply with an order or signal of a police
officer. The court also found that, because appellant was on post-release control at the
time of this offense, he had violated post-release control, and the court ordered him to
serve a prison term of 12 months for this violation, to be served consecutively to the 18
months on the underlying conviction, for a total of 30 months in prison.
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{¶15} In Case No. 12 CR 73, the case involving Target, the court sentenced
appellant to prison for 12 months for this violation. The court ordered this sentence to
be served consecutively to the 30-month sentence in Case No. 11 CR 517, for an
overall total of 42 months in prison.
{¶16} Appellant appeals his sentence, asserting the following for his sole
assignment of error:
{¶17} “The trial court erred by sentencing the defendant-appellant to maximum
terms of imprisonment.”
{¶18} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court
of Ohio held that “[t]rial courts have full discretion to impose a prison sentence within the
statutory range and are no longer required to make findings or give their reasons for
imposing maximum * * * sentences.” Id. at paragraph seven of the syllabus.
{¶19} The court in Foster also held that R.C. 2929.11 and R.C. 2929.12 still
“apply as a general guide for every sentencing.” Foster at ¶36. In sentencing an
offender for a felony conviction, pursuant to R.C. 2929.11(A), a trial court must be
guided by the overriding purposes of felony sentencing, which are “to protect the public
from future crime by the offender * * * and to punish the offender.” Id. The court must
also consider the seriousness and recidivism factors under R.C. 2929.12. Foster,
supra.
{¶20} The court in Foster held that R.C. 2929.11 and R.C. 2929.12 do not
mandate judicial fact-finding. Foster at ¶42. Rather, “[t]he court is merely to ‘consider’
the statutory factors.” (Emphasis added.) Id. at 14. Thus, “in exercising its discretion, a
court is merely required to ‘consider’ the purposes and principles of sentencing in R.C.
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2929.11 and the statutory * * * factors set forth in R.C. 2929.12.” State v. Lloyd, 11th
Dist. No. 2006-L-185, 2007-Ohio-3013, ¶44.
{¶21} Subsequently, in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the
Supreme Court of Ohio established a two-step analysis for an appellate court reviewing
a felony sentence. Appellant concedes that the Kalish test applies in this case. In the
first step of the Kalish analysis, we consider whether the trial court “adhered to all
applicable rules and statutes in imposing the sentence.” Id. at ¶14. “As a purely legal
question, this is subject to review only to determine whether it is clearly and
convincingly contrary to law, the standard found in R.C. 2953.08(G).” Id.
{¶22} Kalish did not specifically provide guidance as to the “laws and
rules” an appellate court must consider to ensure the sentence
clearly and convincingly conforms with Ohio law. The specific
mandate of Kalish is that the sentence fall within the statutory range
for the felony of which a defendant is convicted. Id. at ¶15. State v.
Gooden, 9th Dist. No. 24896, 2010-Ohio-1961, ¶48.
{¶23} Next, if the first step is satisfied, we consider whether, in selecting the
actual term of imprisonment within the permissible statutory range, the trial court
abused its discretion. Kalish, supra, at ¶17. This court has stated that the term “abuse
of discretion” is one of art, connoting judgment exercised by a court that does not
comport with reason or the record. State v. Whitlow, 11th Dist. No. 2007-L-005, 2007-
Ohio-5907, ¶8, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).
{¶24} Turning to the facts of the instant case and addressing the first step of the
Kalish test, appellant pled guilty to failure to comply with an order or signal of a police
officer, a felony of the fourth degree. He was therefore subject to a prison term for this
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offense of up to 18 months. R.C. 2929.14(A). Further, because appellant committed
this offense while he was on post-release control, he was subject to an additional prison
term of 12 months for the post-release control violation pursuant to R.C. 2929.141.
Appellant also pled guilty to theft, a fifth-degree felony, for which he was subject to an
additional prison term of up to 12 months.
{¶25} Thus, the maximum prison sentence that the trial court could have
imposed within the statutory limitations for both counts to which appellant pled guilty
and the post-release control violation was 42 months. Appellant’s sentence of 42
months was thus within the statutory range for these offenses, and, therefore, did not
violate the applicable sentencing laws.
{¶26} Moreover, the trial court expressly stated on the record and in the court’s
sentencing entries that it had considered the purposes of felony sentencing under R.C.
2929.11 and balanced the seriousness and recidivism factors under R.C. 2929.12.
{¶27} Because the sentences imposed were within the statutory range of
sentences for appellant’s crimes and the court considered the purposes and factors of
felony sentencing, appellant’s sentence complied with all applicable statutes and
therefore was not clearly and convincingly contrary to law. His sentence therefore
complied with the first step of the Kalish test.
{¶28} In fact, appellant concedes that his sentence complied with the first step of
the Kalish test and therefore was not contrary to law. Instead, he argues the court
abused its discretion by not giving “appropriate consideration and weight” to whether he
showed genuine remorse, which is one of the recidivism factors in R.C. 2929.12. As
noted above, appellant told the court he committed the instant thefts to help his sister
and he is sorry. In addition, appellant argues that none of the factors in R.C. 2929.12
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making the offenses more serious apply and that certain factors making his cases less
serious apply.
{¶29} As noted above, pursuant to Foster, supra, the trial court is not required to
make findings under R.C. 2929.11 and R.C. 2929.12. R.C. 2929.12 requires only that
the trial court consider the seriousness and recidivism factors. Id. R.C. 2929.12 does
not require the trial court to “use specific language or make specific findings on the
record in order to evince the requisite consideration of the applicable seriousness and
recidivism factors.” State v. Arnett, 88 Ohio St.3d 208, 215 (2000). As a result, the trial
court was not required to make findings under any of the specific factors, including
whether appellant showed genuine remorse. The trial court’s statement in its
sentencing entries and on the record that it considered the seriousness and recidivism
factors in R.C. 2929.12 evidenced compliance with R.C. 2929.12. State v. Delmanzo,
11th Dist. No. 2007-L-218, 2008-Ohio-5856, ¶23.
{¶30} While appellant may not agree with the weight given by the trial court to
his expression of remorse, “[a] trial court is not required to give any particular weight or
emphasis to a given set of circumstances; it is merely required to consider the statutory
factors in exercising its discretion.” Id. We must therefore defer to the weight the court
assigned to appellant’s expression of remorse.
{¶31} Here, the trial court obviously found that any genuine remorse of appellant
was outweighed by other recidivism factors, e.g., the offender has a history of criminal
convictions; at the time of committing the offense, the offender was on post-release
control for an earlier offense. The court noted at the sentencing hearing that the best
predictor of appellant’s future behavior is his past behavior. The court also noted that
appellant has an extensive criminal record and that he committed the current crimes
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while he was on post-release control. As a result, the trial court stated that appellant
poses a great likelihood of recidivism.
{¶32} The court also noted that this case is more serious because, while
attempting to elude the police in the Dillard’s theft, appellant was travelling at 100 m.p.h.
and went through a red light on city streets.
{¶33} The trial court considered the appropriate sentencing factors. Thus, it had
full discretion to impose a sentence within the statutory range. State v. Spencer, 11th
Dist. No. 2008-L-002, 2008-Ohio-3906, ¶12-17. Since the court’s maximum sentence
was supported by reason and the record, we hold the trial court did not abuse its
discretion in sentencing appellant.
{¶34} For the reasons stated in the opinion of this court, appellant’s assignment
of error is overruled. It is the judgment and order of this court that the judgment of the
Lake County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.
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State v. DeNiro
Combined Opinion