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State v. Abrams

Court of Appeals of Ohio, Twelfth District, Clermont

November 13, 2017

STATE OF OHIO, Plaintiff-Appellee,
JEFFREY SCOTT ABRAMS, Defendant-Appellant.


          D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, for plaintiff-appellee

          The Farrish Law Firm, Michaela M. Stagnaro, for defendant-appellant


          HENDRICKSON, P.J.

         {¶ 1} Defendant-appellant, Jeffrey Scott Abrams, appeals from the sentence he received in the Clermont County Court of Common Pleas after he pled guilty to multiple theft offenses. For the reasons set forth below, we affirm his sentence.

         {¶ 2} On May 19, 2016, appellant was indicted on four counts of theft by deception in violation of R.C. 2913.02(A)(3), misdemeanors of the first degree, one count of theft from an elderly person in violation of R.C. 2913.02(A)(1), a felony of the fifth degree, three counts of theft in violation of R.C. 2913.02(A)(1), of which one was a felony of the fifth degree and two were misdemeanors of the first degree, one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the second degree, one count of misuse of a credit card in violation of R.C. 2913.21(B)(2), a misdemeanor of the first degree, two counts of receiving stolen property in violation of R.C. 2913.51(A), felonies of the fifth degree, and one count of failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(B), a felony of the third degree. The charges arose out of allegations that between April 13, 2016 and May 12, 2016, appellant aided and abetted others in the fraudulent return of merchandise at various businesses in Clermont County, the theft of a TV from an elderly person, and the theft of credit cards from two other victims. Appellant acted as the getaway driver following the commission of the offenses, and his truck had a stolen license plate affixed to it.

         {¶ 3} On January 24, 2017, following plea negotiations, appellant pled guilty to one count of theft from an elderly person, two counts of theft of a credit card, and one count of receiving stolen property, all felonies of the fifth degree, as well as three counts of theft, misdemeanors of the first degree, in exchange for the remaining charges being dismissed.[1] A sentencing hearing was scheduled for February 28, 2017, and the trial court ordered that a presentence investigation report ("PSI") be prepared.

         {¶ 4} At the sentencing hearing, the trial court heard from the state, one of appellant's victims, defense counsel, and appellant. The state indicated it had reviewed the PSI, which detailed appellant's lengthy criminal history involving convictions for disorderly conduct, possession of drugs and drug abuse instruments, possession of cocaine, possession of heroin, and breaking and entering, and it requested that a prison sentence be imposed on appellant. Thereafter, one of appellant's victims testified about the terror she felt when appellant stole her purse in the parking lot of a shopping plaza after crashing his vehicle into her shopping cart. She explained appellant's actions have caused an emotional and psychological toll on her well-being and she stated she "fear[s] when he gets out" of prison.

         {¶ 5} Appellant apologized to his victims and expressed remorse for his actions. He spoke of his heroin addiction and the frustration he felt in being unable to overcome his addiction and self-destructive ways. Defense counsel acknowledged appellant's drug addiction had negatively impacted other people in the community, but contended that appellant's willingness to take responsibility and be held accountable for his actions should be considered in fashioning an appropriate sentence.

         {¶ 6} After reviewing the PSI and victim impact statements and considering the information presented at the sentencing hearing, the trial court determined that community control was not an appropriate sanction and that a prison term was warranted. With respect to appellant's three misdemeanor convictions for theft by deception, the court imposed 180-day jail sentences on each offense, to be served concurrently to one another and concurrently to the sentences imposed on the felony counts. With respect to the four fifth-degree felony offenses, the court imposed 11-month prison terms on each offense and ordered that the sentences be served consecutively to one another, for an aggregate prison term of 44 months. The court gave appellant jail-time credit for 293 days and ordered him to pay $1, 644.92 in restitution to three of his victims.

         {¶ 7} Appellant timely appealed, raising two assignments of error.

         {¶ 8} Assignment of Error No. 1:


         {¶ 10} In his first assignment of error, appellant argues the trial court erred by sentencing him to 11 months in prison on each felony count and by running the felony sentences consecutively to one another. Appellant contends the court failed to properly consider the purposes and principles of sentencing and failed to make the required findings under R.C. 2929.14(C) before imposing his sentence. He further contends the court erred by failing to inform him that (1) he is required to submit to random drug testing while in prison and cannot ingest or be injected with a drug of abuse while in prison, (2) he is required to submit a DNA sample as a result of his felony convictions, and (3) he had a right to appeal his sentence. Finally, appellant argues the court erred by ordering him to pay restitution to his victims without considering his ability to pay the financial sanctions.

         {¶ 11} We review the imposed sentence under the standard of review set forth in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the appellate court finds by clear and convincing evidence that "the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. A sentence is not clearly and convincingly contrary to law where the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7.

         Principles and Purposes of Sentencing

         {¶ 12} Appellant contends the "almost maximum" sentence imposed on each fifth-degree felony offense was "contrary to law and to the purposes and principles of sentencing." He argues that in considering the seriousness and recidivism factors set forth in R.C. 2929.12, the court should have given weight to the fact that he did not "expect to cause harm to any person or property" in the commission of his offenses and his conduct was influenced by his substance abuse issues.

         {¶ 13} A trial court has discretion to impose a prison term on an offender who pleads guilty to a fifth-degree felony that is not an offense of violence if the offender "at the time of the offense was serving, or the offender previously had served, a prison term." R.C. 2929.13(B)(1)(b)(x). "[I]n determining whether to impose a prison term as a sanction for a felony of the * * * fifth degree, the sentencing court shall comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code." R.C. 2929.13(B)(2).

         {¶ 14} The purposes of felony sentencing are to protect the public from future crime by the offender and to punish the offender. R.C. 2929.11(A). A felony sentence must be reasonably calculated to achieve the purposes set forth in R.C. 2929.11(A) "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B). In sentencing a defendant, a trial court is not required to consider each sentencing factor, but rather to exercise its discretion in determining whether the sentence satisfies the overriding purpose of Ohio's sentencing structure. State v. Littleton, 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, ΒΆ 12. The factors set forth in R.C. 2929.12 ...

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