Court of Appeals of Ohio, Second District, Champaign
Appeal from Common Pleas Court Trial Court Case No.
A. NAPIER, Atty. Reg., Assistant Prosecuting Attorney,
Champaign County Prosecutor's Office, Attorney for
JENNIFER D. BRUMBY, Atty. Reg. Attorney for
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
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
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. 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.
4} For his sole assignment of error, Cunningham
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 ...