State v. Terry

[Cite as State v. Terry, 2017-Ohio-7266.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-65
:
v. : T.C. NO. 15-CR-640
:
RICKY TERRY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 18th day of August, 2017.

...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee

JAMES S. SWEENEY, Atty. Reg. No. 0086402, 341 S. Third Street, Suite 100, Columbus,
Ohio 43215
Attorney for Defendant-Appellant

.............

TUCKER, J.
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{¶ 1} Ricky Terry appeals from a judgment of the Clark County Court of Common

Pleas, which found him guilty of numerous offenses on his guilty pleas and sentenced

him to maximum, consecutive sentences totaling 27 years. For the following reasons,

the judgment of the trial court will be affirmed.

Procedural History

{¶ 2} On December 8, 2015, Terry and several other men were indicted on

numerous offenses, which were alleged to have occurred between April 2007 and

December 2015. All of the men were charged with engaging in a pattern of corrupt

activity, in violation of R.C. 2923.32(A)(1), a felony of the second degree. Terry was also

charged with six counts of breaking and entering, eight counts of theft of a motor vehicle,

two counts of attempted theft of a motor vehicle, two counts of theft, and three counts of

safecracking.1 The indictment included a forfeiture specification on each count.

{¶ 3} On August 26, 2016, Terry pled guilty to the following charges: engaging in

a pattern of corrupt activity, seven counts of theft of a motor vehicle (felonies of the fourth

degree), one count of attempted theft of a motor vehicle (a felony of the fifth degree), two

counts of theft (felonies of the fourth and fifth degree, respectively), and five counts of

breaking and entering (felonies of the fifth degree). Terry also admitted to the forfeiture

specifications and agreed to forfeit the property in question. The State dismissed six

additional counts against Terry, which were fourth and fifth degree felonies, and agreed

to “recommend and work to secure an agreement with Franklin County not to pursue

prosecution” of 37 other charges against him that had not yet been filed. The State also

1 The predicate offenses involving Terry all happened in 2015.
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agreed that Terry would not be fined or ordered to pay restitution, and that any sentence

in this case would be concurrent to the sentence Terry was already serving.

{¶ 4} At the plea hearing, the prosecutor stated that seven people had

participated in the theft ring that led to the charge of engaging in a pattern of corrupt

activity; the criminal acts committed by the group included, but were not limited to, theft

of automobiles, breaking and entering into outbuildings and barns to steal tools and

equipment, burglary of an attached garage, “smash and grab” at a convenience store,

thefts of ATMs, vandalism, failure to comply, and receiving stolen property. The

prosecutor then detailed the specific counts against Terry, which involved numerous

thefts and attempted thefts of vehicles, crashing some of those vehicles into buildings to

effectuate thefts, including thefts of ATMs, tools, generators, tires, an “Arctic Cat” motor

vehicle, trailers, and other equipment, and breaking into garages and businesses. The

trial court ordered a presentence investigation.

{¶ 5} At the sentencing hearing, defense counsel stated that Terry had been

“plagued in his life with some drug and alcohol problems. That’s what the majority of his

prior criminal offenses occur from.” Defense counsel also stated that Terry was

remorseful and accepted responsibility for what he had done. Counsel asked the court

to consider what Terry’s actions had done to his life and what he was “gonna have to live

with,” including the fact that his son and wife were already in prison. Counsel also asked

that Terry’s age, 50, be considered, so that his family could have a chance at reunification

in the future.

{¶ 6} The prosecutor stated that the Franklin County case involving Terry had

involved similar facts to the Clark County case (“stealing truck tires, motor vehicles, work
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tools, safes, and other property”) and that Franklin County officials had agreed not to go

forward on their charges in light of Terry’s plea. The prosecutor described the Franklin

County cases as “very good prosecutable cases,” including some in which Terry was

caught on video tape. No additional information about these charges was presented at

the hearing or in the PSI.

{¶ 7} The prosecutor also stated that Terry’s criminal history dated back to

juvenile offenses with “very little gaps in time,” and that some of the gaps were likely

attributable to incarceration. The PSI’s statement outlining Terry’s criminal record

corroborated this statement. The prosecutor and the PSI stated that Terry’s prior

convictions included numerous convictions for breaking and entering, possession of

criminal tools, receiving stolen property, vandalism, tampering with coin machines,

burglary, and theft, as well as one count of arson. Terry has been sentenced to prison

at least 14 times, and has received suspended sentences and/or jail terms several

additional times. Although some of his prison sentences had overlapped, Terry had

spent a significant portion of his adult life in prison.

{¶ 8} The prosecutor described this as “an incredible pattern of criminal conduct

lasting this defendant’s entire life thus far,” and commented that his reported “self-

employment” seemed to have consisted of the criminal enterprise, which was ”the only

job he’s ever had.” Terry had the longest record of all the defendants in the case. The

prosecutor also stated that the reason Terry’s son is in prison is that Terry taught his son

-- and others – how to engage in criminal activity. The prosecutor disputed defense

counsel’s assertion that Terry was remorseful; the prosecutor stated that there was

“absolutely no expression of remorse” and noted that, according to the PSI, Terry did not
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want to make a statement acknowledging his involvement in the instant offense. The

PSI also indicated that Terry’s risk level was “high.”

{¶ 9} The trial court, when imposing the sentence, noted that seventeen prison

sentences had previously been imposed on Terry and that, although some were

simultaneous, he had been to prison on twelve occasions. The court found that

consecutive sentences were necessary to protect the public from future crime and to

punish Terry, that consecutive sentences were not disproportionate to the seriousness of

his crimes or the danger he posed to the public, and that “the aggregate harm caused”

by his offenses “was so great or unusual that no single prison term for any of the offenses”

adequately reflected the seriousness of Terry’s conduct. The court imposed the

maximum sentence on each offense: eight years for engaging in a pattern of corrupt

activity, 18 months on each fourth-degree felony, and 12 months on each fifth-degree

felony. The trial court also ordered that the sentences be served consecutively to one

another but concurrently with the sentence in another case, in accordance with the plea

agreement, for a total sentence of 27 years.

{¶ 10} Terry appeals, raising one assignment of error, which asserts that his

sentence was not supported by the record and was contrary to law. His arguments

question both the individual sentences and the consecutive sentence.

Sentencing Considerations

{¶ 11} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
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court must consider the statutory criteria that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

{¶ 12} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, 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 crimes committed by similar offenders.”

{¶ 13} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense. R.C. 2929.12(C) sets

forth four factors indicating that an offender’s conduct is less serious than conduct

normally constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that

trial courts are to consider regarding the offender’s likelihood of committing future crimes.

Finally, R.C. 2929.12(F) requires the sentencing court to consider the offender’s military

service record.
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{¶ 14} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive

sentences if it determines that: (1) consecutive service is necessary to protect the public

from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public; and (3) one or more of the following three findings are

satisfied:

(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.

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

sentences are necessary to protect the public from future crime by the

offender.

{¶ 15} In imposing consecutive sentences, the trial court must make the statutory

findings and incorporate them into its sentencing entry, but the trial court is not required

to state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659, ¶ 37.

{¶ 16} The standard set forth in R.C. 2953.08(G)(2) applies to all challenges
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involving sentencing. Under that standard, we may vacate or modify a sentence only if

we find, by clear and convincing evidence, that the sentence is contrary to law or that the

record does not support the trial court’s findings under certain statutes (including the

findings required for consecutive sentences). State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. While acknowledging that some sentences do

not require any of the findings referenced in R.C. 2953.08(G)(2), the Ohio Supreme Court

also reasoned:

* * * [I]t is fully consistent for appellate courts to review those sentences that

are imposed solely after consideration of the factors in R.C. 2929.11 and

2929.12 under a standard that is equally deferential to the sentencing court.

That is, an appellate court may vacate or modify any sentence that is not

clearly and convincingly contrary to law only if the appellate court finds by

clear and convincing evidence that the record does not support the

sentence.

Marcum at ¶ 23. However, if an appellate court finds by clear and convincing evidence

that the record does not support the sentence under R.C. 2929.11 and 2929.12, the

sentence is contrary to law, and we have the authority to review it under R.C.

2953.08(A)(4). State v. Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2016-

Ohio-7702, ¶ 108.

Terry’s Sentence

{¶ 17} Terry contends that the sentence of 27 years is not supported by the record

and is contrary to law.

{¶ 18} Each sentence is within the authorized statutory range, and the trial court
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expressly stated in its judgment entry that it had considered the statutory principles and

purposes of sentencing as well as the statutory seriousness and recidivism factors.

Moreover, the trial court’s imposition of consecutive sentences was not contrary to law,

because the trial court made the consecutive-sentence findings mandated by R.C.

2929.14(C)(4). It did not state reasons in support of those findings, but it was not

required to do so. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

{¶ 19} When a sentencing court makes its “objective” findings, they include, at

least implicitly, those listed in R.C. 2929.11, which require that a felony sentence:

(1) be reasonably calculated to achieve the protection of the public from future

crimes by the offender; and

(2) punish the offender; and

(3) use the minimum sanctions that the court determines will accomplish those

purposes without imposing an unnecessary burden on state or local

resources; and,

(4) be commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact on the victim; and,

(5) be consistent with sentences imposed for similar crimes by similar

offenses.

{¶ 20} The ultimate questions for any sentence reviewed by appellate courts are

whether:

(1) as a matter of law, the sentence is contrary to law; and

(2) as a matter of fact, the findings supporting the sentence clearly and

convincingly are not supported by the record.
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{¶ 21} In this case, the question is whether the record clearly and convincingly

does not support a finding that a 27-year sentence for a non-violent offender, is necessary

to punish Terry, using the minimum sanction to accomplish that purpose without imposing

an unnecessary burden on state resources, and is commensurate with the fourth and fifth

degree felonies that he committed. We cannot find upon this record including,

importantly, Terry’s criminal history, that these implicit findings are clearly and

convincingly not supported by the record in this case.

{¶ 22} The assignment of error is overruled.

{¶ 23} The judgment of the trial court will be affirmed.

.............

HALL, P.J., concurs.

FROELICH, J., dissenting:

{¶ 24} I concur with the majority’s analysis, but I would conclude that the findings

are clearly and convincingly not supported by the record and would reverse and remand.

..........

Copies mailed to:

Megan M. Farley
James S. Sweeney
Hon. Douglas M. Rastatter