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State v. Cunningham

Court of Appeals of Ohio, Second District, Champaign

October 27, 2017

STATE OF OHIO Plaintiff-Appellee
v.
BACARIE L. CUNNINGHAM Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-223

          JANE A. NAPIER, Atty. Reg., Assistant Prosecuting Attorney, Champaign County Prosecutor's Office, Attorney for Plaintiff-Appellee

          JENNIFER D. BRUMBY, Atty. Reg. Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Bacarie Cunningham, appeals from the sentences imposed by the trial court following his entry of pleas of guilty to charges of burglary, attempted burglary and receiving stolen property. Specifically, Cunningham argues that the court erred by failing to comply fully with the provisions of R.C. 2929.12(C) before it imposed consecutive prison sentences amounting to an aggregate term of seven years and four months. We find that the court did not fail to comply with R.C. 2929.12(C), and we therefore affirm.

         I. Facts and Procedural History

         {¶ 2} On October 16, 2016, a Champaign County grand jury issued an indictment charging Cunningham with two counts of burglary, second degree felonies under R.C. 2911.12(A)(2) and (D); two counts of petty theft, first degree misdemeanors under R.C. 2913.02(A)(1) and (B)(2); and one count of receiving stolen property, a fifth degree felony under R.C. 2913.51(A) and (C). The indictment indicates that these charges relate to at least three separate incidents.[1]

         {¶ 3} Cunningham and the State reached a plea agreement, and at his final pretrial conference on November 7, 2016, Cunningham pleaded guilty to one of the counts of burglary, one count of attempted burglary and the single count of receiving stolen property.[2] The court then scheduled a sentencing hearing and ordered a presentence investigation report. At the sentencing hearing on November 28, 2016, the trial court sentenced Cunningham to serve consecutive terms of imprisonment of five years for the count of burglary, 18 months for the count of attempted burglary and 10 months for the count of receiving stolen property -- a total of seven years and four months. Cunningham timely filed his notice of appeal on December 12, 2016.

         II. Analysis

         {¶ 4} For his sole assignment of error, Cunningham argues that:

         THE SENTENCING COURT FAILED TO PROPERLY CONSIDER THE ENTIRETY OF THE FACTORS ENUMERATED IN R.C. § 2929.12(C) WHEN IMPOSING SENTENCE UPON [HIM].

         {¶ 5} Cunningham faults the sentence imposed by the trial court in three respects. First, he contends that the court should have imposed a lesser sentence because he "did not cause or expect to cause physical harm to any person or property." R.C. 2929.12(C)(3); see Appellant's Br. 2. Second, he contends that the court disregarded "substantial grounds to mitigate [his] conduct, " noting that he has struggled with "chemical dependency from a young age" and "was under the influence of drugs during the commission of the crimes" for which he was convicted. R.C. 2929.12(C)(4); Appellant's Br. 2. Third, referring to his decision to plead guilty, he contends that the court did not accord sufficient weight to his "acknowledgement] and acceptance] [of] responsibility" or his "demonstration] [of] sincere remorse." Appellant's Br. 2-3. In response, the State argues that Cunningham has not established with clear and convincing evidence that his sentence is unsupported by the record or contrary to law.

         {¶ 6} A "trial court has full discretion to impose any sentence within the authorized statutory range, and [it] 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.). Even so, the "court must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12." Id., citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37.

         {¶ 7} According to R. C. 2929.11(A), a "court that sentences an offender for a felony shall be guided" by the "overriding purposes" of punishing the offender and "protecting] the public from future crime by the offender and others." To these ends, the "court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to [any] victim[s] * * *, the public, or both." Id. The court should use "the minimum sanctions that [it] determines [likely to] accomplish [the] purposes [of sentencing] without imposing an unnecessary burden on state or local government resources." Id. Additionally, R.C. 2929.11(B) states that a felony sentence "shall be reasonably calculated to achieve the two overriding purposes of felony sentencing * * * commensurate with and not ...


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