State v. Dudley

[Cite as State v. Dudley, 2014-Ohio-5419.]

COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
LARRY W. DUDLEY, JR. : Case No. 14-COA-015
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 13-CRI-024

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 5, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAUL T. LANGE CHRISTINA I. REIHELD
110 Cottage Street P.O. Box 532
Third Floor Danville, OH 43014
Ashland, OH 44805
Ashland County, Case No. 14-COA-015 2

Farmer, J.

{¶1} On March 4, 2013, appellant, Larry Dudley, Jr., pled guilty pursuant to a

bill of information to three counts of breaking and entering in the fifth degree in violation

of R.C. 2911.13, four counts of petty theft, misdemeanors in the first degree, in violation

of R.C. 2913.02, and one count of theft from an elderly person in the fifth degree in

violation of R.C. 2913.02.

{¶2} A sentencing hearing was held on May 13, 2013. By judgment entry filed

May 16, 2013, the trial court sentenced appellant to twelve months on each of the four

fifth degree felony counts, to be served consecutively, and ninety days on each of the

petty theft counts, to be served concurrently and concurrently with the consecutive

counts, for an aggregate term of forty-eight months in prison. The trial court ordered the

sentences to run consecutively to sentences imposed in another case, Case No. 12-

CRI-131, for a total aggregate term of one hundred, thirty-eight months in prison.

{¶3} Pursuant to a motion filed by appellant for hearing on restitution, the trial

court held a hearing and entered an order of restitution and ratified and affirmed the

previously imposed prison sentences. See, Judgment Entry filed March 18, 2014.

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶5} "THE TRIAL COURT ERRED WHEN IT IMPOSED PRISON SENTENCES

FOR FOUR FIFTH DEGREE FELONIES WITHOUT MAKING A SPECIFIC FINDING

THAT ANY FACTOR CONTAINED IN R.C. 2929.13(B)(1)(b) APPLIES RELATIVE TO

APPELLANT."
Ashland County, Case No. 14-COA-015 3

II

{¶6} "THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

TWELVE MONTH SENTENCES FOR FOUR FIFTH DEGREE FELONY

CONVICTIONS SUCH THAT THE AGGREGATE SENTENCE EXCEEDED THE

MAXIMUM PRISON TERM ALLOWED BY R.C. 2929.14(A) FOR THE MOST SERIOUS

OFFENSE OF WHICH THE APPELLANT WAS CONVICTED."

I

{¶7} Appellant claims the trial court erred in sentencing him on the four fifth

degree felony counts as it failed to make specific findings on any factor under R.C.

2929.13(B)(1)(b). We disagree.

{¶8} By judgment entry filed March 18, 2014, the trial court "ratified and

affirmed" the sentences imposed via judgment entry filed May 16, 2013. In the 2013

entry, the trial court sentenced appellant to twelve months on each of the four fifth

degree felony counts, to be served consecutively.

{¶9} Appellant argues the trial court failed to make specific findings pursuant to

R.C. 2929.13(B)(1)(b) which states the following:

(b) The court has discretion to impose a prison term upon an

offender who is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault

offense if any of the following apply:

(i) The offender committed the offense while having a firearm on or

about the offender's person or under the offender's control.
Ashland County, Case No. 14-COA-015 4

(ii) If the offense is a qualifying assault offense, the offender caused

serious physical harm to another person while committing the offense,

and, if the offense is not a qualifying assault offense, the offender caused

physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by

the court.

(iv) The court made a request of the department of rehabilitation

and correction pursuant to division (B)(1)(c) of this section, and the

department, within the forty-five-day period specified in that division, did

not provide the court with the name of, contact information for, and

program details of any community control sanction of at least one year's

duration that is available for persons sentenced by the court.

(v) The offense is a sex offense that is a fourth or fifth degree felony

violation of any provision of Chapter 2907. of the Revised Code.

(vi) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person with a deadly weapon.

(vii) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person, and the offender

previously was convicted of an offense that caused physical harm to a

person.

(viii) The offender held a public office or position of trust, and the

offense related to that office or position; the offender's position obliged the

offender to prevent the offense or to bring those committing it to justice; or
Ashland County, Case No. 14-COA-015 5

the offender's professional reputation or position facilitated the offense or

was likely to influence the future conduct of others.

(ix) The offender committed the offense for hire or as part of an

organized criminal activity.

(x) The offender at the time of the offense was serving, or the

offender previously had served, a prison term.

(xi) The offender committed the offense while under a community

control sanction, while on probation, or while released from custody on a

bond or personal recognizance.

{¶10} The presentence investigation report filed May 16, 2013 clearly

demonstrated that appellant had previously served a prison term; therefore, the trial

court had the discretion to impose a prison term under R.C. 2929.13(B)(1)(b)(x).

Appellant argues the trial court failed to make this specific finding on the record

pursuant to R.C. 2953.08(G)(1) which states the following:

If the sentencing court was required to make the findings required

by division (B) or (D) of section 2929.13 or division (I) of section 2929.20

of the Revised Code, or to state the findings of the trier of fact required by

division (B)(2)(e) of section 2929.14 of the Revised Code, relative to the

imposition or modification of the sentence, and if the sentencing court

failed to state the required findings on the record, the court hearing an

appeal under division (A), (B), or (C) of this section shall remand the case
Ashland County, Case No. 14-COA-015 6

to the sentencing court and instruct the sentencing court to state, on the

record, the required findings.

{¶11} During the sentencing hearing held on May 13, 2013, the trial court noted

it had reviewed the presentence investigation report which defense counsel described

as "very large, very voluminous" (T. at 3), and stated the following (T. at 10):

You have had an opportunity for residential treatment through

CBCF programming, you failed to maintain sobriety, you have had less

than stellar success on Probation or Community Control, and you have

been found in violation of prior Community Control sanctions and

Probation violations, so I am therefore finding that you are not amenable

to Community Control, that a prison sentence is in these counts,

consistent with the purposes and principles of Ohio sentencing statutes.

{¶12} The prosecutor pointed out appellant's extensive criminal history, "as well

as a juvenile history, despite numerous prior convictions, prior prison sentencings and

numerous opportunities to rehabilitate himself and address any drug issues that he may

have." T. at 6-7.

{¶13} We note R.C. 2929.13(B)(1)(b) does not require a trial court to enter a

specific finding to the applicability of the section. Although the trial court did not

specifically find that appellant previously had served a prison term, we find the trial

court's statements cited above, coupled with the voluminous presentence investigation
Ashland County, Case No. 14-COA-015 7

report on appellant's extensive criminal history including prior prison sentences, fulfills

the statutory scheme.

{¶14} Assignment of Error I is denied.

II

{¶15} Appellant argues the trial court erred in ordering consecutive sentences

resulting in an aggregate sentence that exceeded the maximum prison term allowed by

R.C. 2929.14(A) for the most serious offense of which he was convicted. We disagree.

{¶16} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence:

In applying Foster [State v., 109 Ohio St.3d 1, 2006-Ohio-856] to

the existing statutes, appellate courts must apply a two-step approach.

First, they 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 shall be reviewed under an

abuse-of-discretion standard.

{¶17} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
Ashland County, Case No. 14-COA-015 8

{¶18} This court recently reaffirmed this standard of review in a well developed

analysis filed November 17, 2014 in State v. Bailey, 5th Dist. Ashland No. 14-COA-008,

2014-Ohio-____, ¶ 18-24.

{¶19} In determining a sentence, R.C. 2929.11 and 2929.12 require trial courts

to consider 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.

{¶20} In its judgment entry filed May 16, 2013, the trial court sentenced

appellant to twelve months on each of the four fifth degree felony counts, to be served

consecutively. Pursuant to R.C. 2929.14(A)(5), felonies of the fifth degree are

punishable by "six, seven, eight, nine, ten, eleven, or twelve months." Clearly the

twelve months sentences are within the statutory range. Appellant is not contesting the

maximum sentences.

{¶21} Pursuant to R.C. 2953.08(C)(1), a defendant may seek leave to appeal

consecutive sentences imposed under R.C. 2929.14(C)(3) that "exceed the maximum

prison term allowed by division (A) of that section for the most serious offense of which

the defendant was convicted." "This grant of the right to appeal does not mean,

however, that consecutive sentences are erroneous merely because they exceed the

maximum sentence allowed for the most serious offense." State v. Graham, 2nd Dist.

Montgomery No. 25934, 2014-Ohio-4250, ¶ 32. Consecutive sentences for multiple

convictions may certainly exceed the maximum sentence for the most serious offense.

Id.

{¶22} The maximum sentence that appellant faced for the four fifth degree

felonies was twelve months on each count. The trial court sentenced appellant to
Ashland County, Case No. 14-COA-015 9

twelve months on each count, to be served consecutively, for a total aggregate term of

forty-eight months in prison.

{¶23} R.C. 2929.14 governs prison terms. Subsection (C)(4) states the

following:

(4) 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:

(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.

(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 committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.
Ashland County, Case No. 14-COA-015 10

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶24} During the sentencing hearing held on May 13, 2013, the trial court noted

it had reviewed the presentence investigation report and victim impact statements, set

forth the factors in R.C. 2929.11 and 2929.12, and noted appellant's "extremely high"

ORAS Score which "is an indicator for the potential for recidivism, and that indicates

extremely high risk for recidivism, or very high risk for recidivism." T. at 3, 9-10. In

sentencing appellant to consecutive sentences, the trial court stated the following (T. at

12-13):

Mr. Dudley, I am finding that consecutive service of the prison

sentences is necessary in this case to protect the public from future

crimes based on your history and your potential for recidivism, being very

high, I further find that consecutive sentencings are not disproportionate to

the seriousness of your conduct, and the danger that you pose to the

public, and I am further finding that your history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the

public of future crimes by you, simply because you have not shown an

ability to rehabilitate yourself, despite the opportunities given, and that you

failed on various Community Control and Probation Sanctions. So you

pose a risk unless you are confined.
Ashland County, Case No. 14-COA-015 11

{¶25} The trial court's judgment entry on sentencing filed May 16, 2013 echoed

these statements.

{¶26} We note both defense counsel and the prosecutor commented on

appellant's "very large, very voluminous" presentence investigation report and

"extensive criminal history," and immediately prior to being sentenced in the case sub

judice, appellant was sentenced in another case involving three counts of burglary in the

third degree. T. at 3-4, 6-7, 10-11. A review of appellant's presentence investigation

report clearly establishes that he has had numerous opportunities to rehabilitate himself,

but chose instead to continue victimizing others by stealing from them.

{¶27} Upon review, we find the trial court fulfilled the statutory requirements, and

the order of consecutive service was not unreasonable, arbitrary or unconscionable.

The sentence in this case is not contrary to law.

{¶28} Assignment of Error II is denied.
Ashland County, Case No. 14-COA-015 12

{¶29} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.

SGF/sg 1010