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State v. Hines

Court of Appeals of Ohio, Eleventh District, Lake

October 23, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL G. HINES, JR., Defendant-Appellant.

         Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2016 CR 000167, 2016 CR 000342, 2016 CR 000437, and 2016 CR 000953.

          Charles E. Coulson, Lake County Prosecutor, and Anna C. Kelley, Assistant Prosecutor (For Plaintiff-Appellee).

          Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender (For Defendant-Appellant).

          OPINION

          COLLEEN MARY OTOOLE, J.

         {¶1} Appellant, Michael G. Hines, Jr., appeals from the February 8, 2017 judgments of the Lake County Court of Common Pleas, consecutively sentencing him in four cases to a ten-year prison term for illegal manufacture of drugs, illegal assembly or possession of chemicals for the manufacture of drugs, theft, and attempted burglary following guilty pleas. In this consolidated appeal, appellant asserts his sentence is contrary to law because the trial court's findings under R.C. 2929.12 are not supported by the record. Finding no reversible error, we affirm.

         {¶2} On December 6, 2016, appellant, through appointed counsel, pleaded guilty in four separate cases: (1) Case No. 2016 CR 000167, count one, illegal manufacture of drugs, a felony of the second degree, in violation of R.C. 2925.04, with a forfeiture specification, and count two, illegal assembly or possession of chemicals for the manufacture of drugs, a felony of the third degree, in violation of R.C. 2925.041, with a forfeiture specification; (2) Case No. 2016 CR 000342, theft, a felony of the fifth degree, in violation of R.C. 2913.02; (3) Case No. 2016 CR 000437, illegal assembly or possession of chemicals for the manufacture of drugs, a felony of the third degree, in violation of R.C. 2925.041, with a forfeiture specification; and (4) Case No. 2016 CR 000953, attempted burglary, a felony of the third degree, in violation of R.C. 2923.02 and 2911.12. The trial court accepted appellant's guilty pleas and referred the matters to the Adult Probation Department for a pre-sentence investigation and report, a drug and alcohol evaluation, and a mental health assessment.[1]

         {¶3} On February 8, 2017, the trial court sentenced appellant to the following: (1) Case No. 2016 CR 000167, count one, five years, and count two, three years, for a total concurrent sentence of five years; (2) Case No. 16 CR 000342, six months; (3) Case No. 16 CR 000437, three years; and (4) Case No. 16 CR 000953, 18 months. The sentences were ordered to be served consecutively for a total prison term of ten years. Appellant filed timely appeals and raises a single assignment of error:[2]

         {¶4} "The trial court erred by sentencing the defendant-appellant to a ten-year prison term."

         {¶5} In his sole assignment of error, appellant argues the trial court erred in sentencing him to ten years in prison because its findings under R.C. 2929.12 are not supported by the record and are contrary to law. Appellant asserts the court ignored or discounted statutory factors that made his behavior less serious, failed to give adequate weight to the factors that supported his request for a shorter prison sentence, and failed to account for his cooperation with law enforcement.

         {¶6} "(T)his court utilizes R.C. 2953.08(G) as the standard of review in all felony sentencing appeals." State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A-0006, 2014-Ohio-4306, ¶14. R.C. 2953.08(G) provides, in pertinent part:

         {¶7} "(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.

         {¶8} "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. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

         {¶9} "(a) That 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;

         {¶10} "(b) That the sentence is otherwise contrary to law."

         {¶11} Appellant specifically takes issue with R.C. 2929.12. Although trial courts have full discretion to impose any term of imprisonment within the statutory range, they must consider the guidelines contained in R.C. 2929.12, "Factors to consider in felony sentencing, " which states in part:

         {¶12} "(A) Unless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct, the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism, and the factors set forth in division (F) of this section pertaining to the offender's service in the armed forces of the United States and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.

         {¶13} "(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense:

         {¶14} "(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.

         {¶15} "(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.

         {¶16} "(3) The offender held a public office or position of trust in the community, and the offense ...


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