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State of Ohio v. Robert Murphy

October 21, 2011

STATE OF OHIO
PLAINTIFF-APPELLEE
v.
ROBERT MURPHY
DEFENDANT-APPELLANT



(Criminal appeal from Common Pleas Court) T.C. NO. 10CR290

The opinion of the court was delivered by: Donovan, J.

Cite as State v. Murphy,

OPINION

{¶1} Defendant-appellant Robert Murphy appeals from his conviction and sentence for one count of breaking and entering, in violation of R.C. 2911.13(A), a felony of the fifth degree, and one count of burglary, in violation of R.C. 2911.12(A)(3), a felony of the third degree. Murphy filed a timely notice of appeal with this Court on August 12, 2010.

I

{¶2} The instant appeals stems from two incidents which occurred during April of 2010. On April 13, 2010, deputies were dispatched to Advantage Car Credit located in Clark County, Ohio, in order to investigate a break-in. The break-in was reported by an employee who was opening the business that day after she observed a broken window at the back of the building. Upon entering, the witness discovered that a television was missing, and the interior had been ransacked. The employee ran to a nearby bank and called 911. During their subsequent investigation, the deputies obtained information implicating Murphy as the perpetrator of the break-in, and he was arrested and taken to jail.

{¶3} The second incident occurred on April 29, 2010, when deputies were dispatched to the 1200 block of Wendell Avenue in New Carlisle, Ohio, after a witness reported a suspicious white male carrying a blue bag and a large TV wrapped in plastic walking down Wendell Avenue. The witness further reported that the suspicious male walked to a residence located at 1223 Wendell Avenue and went inside. Upon arriving and approaching the residence, the deputy observed a white van backing out of the driveway. The deputy initiated a traffic stop of the vehicle in which Murphy was a passenger. The reporting witness identified Murphy as the suspicious male earlier seen walking down Wendell Avenue. The driver of the van, Kelly Tapia, informed the deputies that she had reluctantly given Murphy a ride in order to get him away from her children who were present at 1223 Wendell Avenue. Tapia gave the deputies permission to search her van. The deputies located a large flat screen television and a blue bag containing a computer monitor and other electrical devices inside the van.

{¶4} Murphy admitted that he had placed the television and the blue bag in Tapia's van. Murphy stated that the television previously belonged to his brother, Frankie. Murphy stated that he had taken the television in payment for a car. Murphy did not provide an explanation for the items contained in the blue bag. Murphy insisted that the deputies travel to Frankie's residence located at 1029 Wendell Avenue in order to verify his story.

{¶5} Upon their arrival at 1029 Wendell Avenue, the deputies spoke with the resident of the house, Brendian Morris, who explained that Frankie had moved away approximately two weeks earlier and left nothing behind. The deputies discovered a Dell tower computer and an HP printer in the grass on the side of the house. Morris stated that he did not recognize the items taken from Tapia's van nor the computer and printer found on the side of the house. Upon inspection, a detective noticed that the computer tower had a repair tag on the side ostensibly bearing the name and address of the owner. The detective sent the deputies to the address on the computer, 1030 Grissom Avenue. The deputies discovered that the Grissom Avenue residence had been broken into and that items had been removed. Many of the items recovered from Murphy were found to have been stolen from the residence. Additionally, Murphy's shoes matched footprints left at the scene, and the backyard of the Grissom Avenue residence connected to the backyard of the home where Murphy initially claimed that his brother lived.

{¶6} On May 10, 2010, Murphy was indicted for two counts of burglary, in violation of R.C. 2911.12(A)(1) and (4), and one count of breaking and entering, in violation of R.C. 2911.13(A). At his arraignment on May 17, 2010, Murphy pled not guilty to all counts in the indictment. Murphy filed a motion to suppress regarding the statements he made to the deputies. Murphy later withdrew the motion after the parties negotiated a plea agreement wherein Murphy agreed to plead guilty to one count of breaking and entering, in violation of R.C. 2911.13(A), a felony of the fifth degree, and one count of burglary, in violation of R.C. 2911.12(A)(3), a felony of the third degree. In return, the State agreed to recommend that Murphy be sentenced to community control and in-patient drug treatment at West Central. The plea hearing occurred on June 15, 2010.

{¶7} At the sentencing hearing held on July 12, 2010, however, the trial court did not follow the State's recommendation regarding in-patient treatment at West Central. Murphy was sentenced to one year for breaking and entering, and four years for burglary, the sentences to run consecutively for an aggregate sentence of five years in prison.

{¶8} It is from this judgment that Murphy now appeals.

II

{¶9} Murphy's first assignment of error is as follows:

{¶10} "THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING APPELLANT'S SENTENCE."

{ΒΆ11} In his first assignment, Murphy contends that his sentence was improper because the trial court failed to consider R.C. 2929.11 and R.C. 2929.12. Specifically, Murphy argues that the trial court failed to affirmatively address the relevant sentencing statutes during the dispositional hearing. While noting that the trial court did, in fact, discuss his criminal history and prior drug treatment, Murphy asserts that the trial court "should be, at minimum, required to mention its consideration of these statutes on the record." In ...


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