State v. Cooper

[Cite as State v. Cooper, 2016-Ohio-4730.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NOS. 2015-A-0042
- vs - : 2015-A-0043
2015-A-0044
JAMES L. COOPER, : 2015-A-0045

Defendant-Appellant. :

Criminal Appeals from the Ashtabula County Municipal Court.
Case Nos. 15 TRC 00002, 15 CRB 00009, 15 TRC 00536, and 14 CRB 01357.

Judgment: Modified and affirmed as modified.

Lori B. Lamer, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, 110 West
44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).

Edward M. Heindel, 400 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).

TIMOTHY P. CANNON, J.

{¶1} Appellant, James L. Cooper, appeals from multiple judgments of the

Ashtabula Municipal Court convicting and sentencing him for five petty misdemeanor

offenses, to wit: two counts of using weapons while intoxicated, one count of

discharging firearms within city limits, and two counts of operating a motor vehicle while

under the influence (“OVI”). For the following reasons, we modify the trial court’s

judgments and affirm as modified.
{¶2} On February 10, 2015, appellant pled guilty to one count of OVI, a first-

degree misdemeanor, in violation of R.C. 4511.19(A)(1)(a); two counts of using

weapons while intoxicated, misdemeanors of the first degree, in violation of R.C.

2923.15(A); and one count of discharging a firearm within the city limits, a fourth-degree

misdemeanor, in violation of Ashtabula Municipal Ordinance §549.08(A). One

misdemeanor count of reckless operation and one felony count of improperly handling

firearms in a motor vehicle were dismissed.

{¶3} Prior to sentencing, appellant was charged with another count of OVI in

violation of R.C. 4511.19(A)(1)(h), a first-degree misdemeanor, to which he pled guilty

on July 9, 2015. Two misdemeanor counts of driving under suspension and failure to

control, in addition to a seatbelt violation, were dismissed.

{¶4} Appellant was sentenced on all five of the remaining charges, in four

separate cases, on July 9, 2015, as follows: 30 days (all suspended) for discharging a

firearm within city limits; 180 days (60 suspended) for the first offense OVI; 180 days

(90 suspended) for the second offense OVI; and 180 days (90 suspended) for each

count of using a weapon while intoxicated. The trial court ordered the sentences to be

served consecutively, such that the resulting aggregate term was 750 days (360 days

suspended). He was credited with 30 days for the first offense OVI and 30 days for

each offense of using a weapon while intoxicated. Appellant’s total time in jail, not

including his suspended sentences, was therefore 300 days, including the 30 days he

had already served awaiting sentencing.

{¶5} Appellant initially raised two assignments of error for our review:

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[1.] The trial court erred when it sentenced Cooper to a total of 300
days in jail. The sentence constituted an abuse of discretion and
was not consistent with R.C. 2929.21 and R.C. 2929.22.

[2.] The trial court erred when it did not comply with Criminal Rule
11(E) before accepting Cooper’s guilty plea, at the plea hearing on
February 10, 2015.

This court subsequently ordered the parties to file supplemental briefs regarding the

imposition of consecutive sentences for multiple misdemeanors in excess of the

statutory maximum found in R.C. 2929.41(B)(1). Appellant filed a supplemental brief

and assigned a third error:

[3.] The trial court erred when it imposed a suspended jail sentence
in excess of eighteen months in violation of R.C. 2929.41(B)(1).

{¶6} Under his first assignment of error, appellant argues the trial court’s

imposition of the maximum sentence for each offense was an abuse of discretion.

Appellant specifically asserts the trial court failed to consider the misdemeanor

sentencing criteria found in R.C. 2929.21 and R.C. 2929.22.

{¶7} “Misdemeanor sentencing is within the discretion of the trial court and will

not be disturbed absent an abuse of discretion.” Conneaut v. Peaspanen, 11th Dist.

Ashtabula No. 2004-A-0053, 2005-Ohio-4658, ¶18, citing State v. Wagner, 80 Ohio

App.3d 88, 95-96 (12th Dist.1992). The term “abuse of discretion” is one of art,

“connoting judgment exercised by a court which neither comports with reason, nor the

record.” State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30,

citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).

{¶8} When a trial court imposes a sentence upon a defendant for a petty

misdemeanor, and a mandatory jail term is not required, the court “has discretion to

determine the most effective way to achieve the purposes and principles of sentencing

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set forth in section 2929.21 of the Revised Code.” R.C. 2929.22(A). “The overriding

purposes of misdemeanor sentencing are to protect the public from future crime by the

offender and others and to punish the offender.” R.C. 2929.21(A). The sentence must

also be “commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar offenses committed by similar offenders.” R.C. 2929.21(B).

{¶9} The trial court is also required to consider criteria listed in R.C. 2929.22(B)

before sentencing a defendant on a misdemeanor. These factors include, inter alia, the

“nature and circumstances of the offense”; whether the offender has a “history of

persistent criminal activity”; whether there is a “substantial risk that the offender will

commit another offense”; whether the offender’s conduct shows a “pattern of repetitive,

compulsive, or aggressive behavior with heedless indifference to the consequences”;

whether the offender is likely to commit “future crimes in general”; and also “any other

factors that are relevant to achieving” the purposes of misdemeanor sentencing. R.C.

2929.22(B), citing R.C. 2929.21.

{¶10} Failure to consider the purposes and principles of misdemeanor

sentencing constitutes an abuse of discretion. See State v. Rogers, 11th Dist. Trumbull

Nos. 2009-T-0051 & 2009-T-0052, 2010-Ohio-197, ¶11. However, “[w]hen a

misdemeanor sentence is within the statutory limits, the trial court is presumed to have

considered the required factors, absent a showing to the contrary by the defendant.”

Peaspanen, supra, at ¶18. “Further, there is no requirement that the court state on the

record it considered the statutory sentencing criteria.” State v. Kish, 11th Dist. Lake No.

2010-L-138, 2011-Ohio-4172, ¶8, citing Peaspanen, supra, at ¶29. “A silent record

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raises the presumption that the trial court considered all of the factors.” State v.

Peppeard, 11th Dist. Portage No. 2008-P-0058, 2009-Ohio-1648, ¶75 (citations

omitted).

{¶11} Finally, “[a] court may impose the longest jail term authorized under

section 2929.24 of the Revised Code only upon offenders who commit the worst forms

of the offense or upon offenders whose conduct and response to prior sanctions for

prior offenses demonstrate that the imposition of the longest jail term is necessary to

deter the offender from committing a future crime.” R.C. 2929.22(C) (emphasis added).

{¶12} Appellant pled guilty to four first-degree misdemeanors (two counts of OVI

and two counts of using weapons while intoxicated) and one fourth-degree

misdemeanor (discharging a firearm within city limits). Pursuant to R.C. 2929.24(A), the

maximum sentence for a first-degree misdemeanor is 180 days, and the maximum

sentence for a fourth-degree misdemeanor is 30 days. Thus, the 180-day sentences for

each first-degree misdemeanor and the 30-day sentence for the fourth-degree

misdemeanor are authorized by statute.

{¶13} At the sentencing hearing, the trial court recognized that two different

offenses were committed involving two different weapons. The trial court also had the

benefit of reviewing a pre-sentence investigation report prior to sentencing and stated

on the record that appellant is “a danger to our community,” did not “take any

responsibility for [his] actions,” and has a “lengthy juvenile court history from age 12.”

{¶14} Appellant has not rebutted the presumption that the trial court properly

considered the required sentencing criteria. In light of the seriousness of appellant’s

multiple offenses involving driving while intoxicated and the discharge of two different

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weapons within city limits, we do not find the trial court abused its discretion by

imposing the maximum sentences authorized by statute.

{¶15} Appellant’s first assignment of error is without merit.

{¶16} Under his third assignment of error, appellant argues the trial court’s

sentence of 750 days in jail, including suspended time, violated R.C. 2929.41(B)(1).

{¶17} When consecutive sentences are imposed for multiple misdemeanors,

“the aggregate term to be served shall not exceed eighteen months.” R.C.

2929.41(B)(1). See also State v. Trainer, 2d Dist. Champaign No. 08-CA-04, 2009-

Ohio-906, ¶15; State v. Pierce, 4th Dist. Meigs No. 10CA10, 2011-Ohio-5353, ¶11.

{¶18} Some appellate districts have held that the imposition of an aggregate

term in excess of the statutory maximum is harmless error because the statute is self-

executing. These courts have refused to modify the errant sentences or remand the

cases for resentencing, instead stating it is the duty of the incarcerating authority to limit

aggregate terms by automatically releasing defendants from prison once the statutory

limit of incarceration has been served. See, e.g., State v. Barnes, 12th Dist. Clermont

No. CA2008-10-090, 2009-Ohio-3684, ¶11; and State v. Torres, 7th Dist. Mahoning No.

12 MA 203, 2013-Ohio-4167, ¶24. The Sixth District has further stated that it “need

take no action on this error beyond declaring appellant’s rights.” State v. Kesterson, 91

Ohio App.3d 263, 264 (6th Dist.1993).

{¶19} The explicit wording of R.C. 2929.41(B)(1) provides: “When consecutive

sentences are imposed for misdemeanor[s] under this division, the term to be served is

the aggregate of the consecutive terms imposed, except that the aggregate term to be

served shall not exceed eighteen months.” An aggregate term in excess of 18 months

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imposed by a trial court is thus contrary to law. We cannot agree with our sister districts

that imposing a sentence contrary to law is harmless error.

{¶20} In addition, contrary to the Sixth District’s holding in Kesterson, we do not

have authority to enter a “declaration of rights” as the remedy for a sentencing error.

Ohio appellate jurisdiction is constitutionally limited “as may be provided by law to

review and affirm, modify, or reverse judgments or final orders of the courts of record

inferior to the court of appeals.” Ohio Constitution, Article IV, Section 3(B)(2). See also

State ex rel. Neer v. Indus. Comm. of Ohio, 53 Ohio St.2d 22, 24 (1978) (“Permitting a

Court of Appeals to give what is basically a declaratory judgment is to expand its

constitutionally declared jurisdiction.”); and R.C. 2953.07 (stating appellate courts may

affirm, reverse, or modify appealed judgments and may also remand for the sole

purpose of correcting a sentence imposed contrary to law).

{¶21} Here, appellant was sentenced to a total of 750 days (i.e., approximately

25 months), with 360 days (i.e., approximately 12 months) suspended. Therefore,

appellant is currently incarcerated for 300 days (i.e., approximately 10 months).

Although the current 10-month period is within the statutory limit, the aggregate 25-

month sentence is not. Thus, appellant’s aggregate term of imprisonment was imposed

contrary to law. The judgments of the trial court must be modified to reflect that

appellant’s aggregate term of imprisonment, including suspended time, is limited to the

statutory maximum of 18 months. If for any reason appellant’s suspended sentence is

later imposed, it must be limited to a total of 8 months (i.e., approximately 240 days).

{¶22} Appellant’s third assignment of error is well taken.

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{¶23} Under his second assignment of error, appellant argues the trial court

failed to comply with Crim.R. 11(E) before it accepted his guilty plea at the first plea

hearing held on February 10, 2015.

{¶24} “In misdemeanor cases involving petty offenses the court may refuse to

accept a plea of guilty or no contest, and shall not accept such plea without first

informing the defendant of the effect of the pleas of guilty, no contest, and not guilty.”

Crim.R. 11(E). “Although Crim.R. 11(E) does not require the trial court to engage in a

lengthy inquiry when a plea is accepted to a misdemeanor charge involving a petty

offense, the rule does require that certain information be given on the ‘effect of the

plea.’” State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, ¶51. “Whether orally or in

writing, a trial court must inform the defendant of the appropriate language under

Crim.R. 11(B) before accepting a plea.” Id. When a defendant is pleading guilty, a trial

court must inform the defendant that a plea of guilty is a complete admission of guilt. Id.

at ¶25, citing Crim.R. 11(B)(1).

{¶25} “‘[F]ailure to comply with nonconstitutional rights (such as the information

in Crim. R. 11(B)(1)) will not invalidate a plea unless the defendant thereby suffered

prejudice.’” Id. at ¶52, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

¶12; see also State v. Griffey, 11th Dist. Portage No. 2009-P-0077, 2010-Ohio-6573,

¶26-27. “A defendant who has entered a guilty plea without asserting actual innocence

is presumed to understand that he has completely admitted his guilt. In such

circumstances, a court’s failure to inform the defendant of the effect of his guilty plea as

required by Crim.R. 11 is presumed not to be prejudicial.” Griggs, supra, at syllabus;

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