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State of Ohio v. David Frazier

October 24, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DAVID FRAZIER,
DEFENDANT-APPELLANT.
STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DAVID FRAZIER,
DEFENDANT-APPELLANT.



Appeals from Shelby County Common Pleas Court Trial Court Nos. 08CR00306 and 10CR00125

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

Cite as

State v. Frazier,

OPINION

Judgments Affirmed

Case Nos. 17-10-06 and 17-10-07

{¶1} Defendant-appellant, David Frazier ("Frazier"), appeals the judgments of the Common Pleas Court of Shelby County, Ohio, sentencing him to an aggregate sentence of eight years and nine months imprisonment following guilty convictions on four felony charges.

{¶2} On November 13, 2008, Frazier was indicted for one count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree (Trial Case No. 08 CR 306). Despite a number of attempts to serve Frazier with the indictment, he was not served until March of 2010. On June 8, 2010, Frazier was indicted in a separate case for eight counts of burglary, each in violation of R.C. 2911.12(A)(4) and each a felony of the fourth degree (Trial Case No. 10 CR 125). Frazier entered pleas of not guilty to all of the charges contained in both indictments.

{¶3} The 2008 case proceeded to a jury trial on December 21-22, 2010. At the conclusion of the trial, Frazier was found guilty of the sole count of burglary, a felony of the second degree. Thereafter, on January 14, 2011, Frazier entered into a plea agreement with the State on the 2010 case, whereby Counts I, II, and VII were each reduced to charges of receiving stolen property in violation of R.C. 2913.51, felonies of the fifth degree, and the remaining five counts were dismissed in exchange for Frazier tendering pleas of guilty to the three reduced counts of receiving stolen property.

{¶4} On February 11, 2011, Frazier was sentenced in both cases. In the 2008 case, Frazier was sentenced to six years in prison. In the 2010 case, Frazier was sentenced to eleven months in prison on each of the three counts. All of Frazier's sentences were ordered to be served consecutively to one another for an aggregate sentence of eight years and nine months. These appeals followed, and Frazier now asserts one assignment of error for our review.

THE GRANTING OF CONSENTIVE [sic] SENTENCES IS EXCESSIVE AND IS NOT NECESSARY TO PROTECT THE PUBLIC.

{¶5} In his sole assignment of error, Frazier contends that the trial court abused its discretion in not considering and making the specific findings required by R.C. 2929.14(E)(4) before imposing consecutive sentences.

{¶6} Our review of this assignment of error begins by noting that an appellate court must conduct a meaningful review of the trial court's sentencing decision. State v. Daughenbaugh, 3rd Dist. No. 16-07-07, 2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-1181. A meaningful review means "that an appellate court hearing an appeal of a felony sentence may modify or vacate the sentence and remand the matter to the trial court for re- sentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law."*fn1 Daughenbaugh, 2007-Ohio-5774, at ¶ 8, citing Carter, 2004-Ohio-1181, at ¶ 44;

R.C. 2953.08(G). Clear and convincing evidence is "[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean ...


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