CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012-CR-0233
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith Brant, for plaintiff-appellee
Denise S. Barone, for defendant-appellant
(¶ 1} Defendant-appellant, Eric Warren, appeals his sentence in the Clermont County Court of Common Pleas for single counts of breaking and entering and theft.
(¶ 2} Warren broke into a business equipped with a security system and surveillance video equipment in order to steal copper fittings and tubing used in air conditioning units. An employee of the business was alerted that someone had broken into the building, and that employee contacted the police. When police came to the scene, they saw Warren run from the building and into a near-by car lot. Warren then tried to flee from police by driving away in a truck belonging to the car lot. However, the police were able to stop the truck, at which time Warren jumped from the truck and led police on a foot-chase. Warren was finally apprehended when police caught and tased him.
(¶ 3} Warren was indicted on four counts, including two counts of breaking and entering, one count of grand theft, and one count of possessing criminal tools. Warren, who has an extensive criminal history, and the state reached a plea agreement wherein Warren agreed to plead guilty to one count of breaking and entering, a fifth-degree felony, and one count of grand theft of a motor vehicle, a felony of the fourth degree. The other two charges were dismissed. The trial court sentenced Warren to 12 months on the breaking and entering charge, and 18 months on the grand theft charge, and ran the sentences consecutive for an aggregate sentence of 30 months. Warren now appeals the trial court's sentence, raising the following assignment of error.
(¶ 4} THE TRIAL COURT ERRED IN IMPOSING A TWO-AND-ONE-HALF-YEAR SENTENCE FOR THE CONVICTIONS HEREIN.
(¶ 5} Warren argues in his assignment of error that the trial court's sentence was erroneous.
(¶ 6} As we recently noted in State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony sentences." Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-Ohio-5899, ¶ 52. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony sentencing decision, "the appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing." However, as explicitly stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion."
(¶ 7} Instead, an appellate court may take any action authorized under R.C. 2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law." A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, and sentences appellant within the permissible statutory range. Crawford at ¶ 9; State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.
(¶ 8} In making such a determ ination, it is "important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8, quoting Venes, 2013-Ohio-1891 at ¶ 21. "It does not say that the trial judge must have clear and convincing evidence to support its findings." Id. Instead, "it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings." Id. Simply stated, the language in R.C. 2953.08(G)(2) establishes an "extremely deferential standard of review" for "the restriction is on the appellate court, not the trial judge." Id.
(¶ 9} Regarding the maximum duration of the sentences, Warren was convicted of felonies of the fourth and fifth degree. According to R. C. 2929.14(A)(4) and (5), "for a felony of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months." "For a felony of the fifth degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months." The trial court sentenced Warren to 12 months on the fifth-degree felony and 18 months on the fourth-degree felony so that each sentence is within the statutory limit.
(¶ 10} Further, the trial court sentenced Warren after stating that it had considered the circumstances of the case, the principles and purposes of sentencing, and had balanced the seriousness and recidivism factors. While both of the sentences constituted maximum sentences, they are not clearly and convincingly contrary to law. State ...