Court of Appeals of Ohio, Twelfth District, Clermont
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No.
Vincent Faris, Clermont County Prosecuting Attorney, Nicholas
Horton, for plaintiff-appellee
Farrish Law Firm, Michaela M. Stagnaro, for
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
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
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. A sentencing hearing was scheduled for
February 28, 2017, and the trial court ordered that a
presentence investigation report ("PSI") be
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:
9} THE TRIAL COURT ERRED AS A MATTER OF LAW BY
IMPROPERLY SENTENCING APPELLANT.
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
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.
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, ¶ 12. The factors set
forth in R.C. 2929.12 ...