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State v. Carpenter

Court of Appeals of Ohio, Fourth District, Meigs

December 8, 2017

STATE OF OHIO, Plaintiff-Appellee,
ANTHONY A. CARPENTER, Defendant-Appellant.

          Timothy Young, Ohio State Public Defender, and Katherine R. Ross-Kinzie, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

          Colleen S. Williams, Meigs County Prosecuting Attorney, and James K. Stanley, Assistant Meigs County Prosecuting Attorney, Pomeroy, Ohio, for Appellee.


          Matthew W. McFarland, Judge.

         {¶1} Anthony A. Carpenter appeals the judgment entry of the Meigs County Common Pleas Court, dated August 23, 2016. In June 2016, Carpenter entered a plea of guilty to one count of Burglary, a violation of RC. 2911.12(A)(3) of the Ohio Revised Code. On appeal, Carpenter asserts the trial court erred by sentencing him to a maximum prison term. He also asserts the trial court erred by its failure to properly calculate the jail time credit to which he was entitled. After carefully reviewing the record, we find no merit to either assignment of error. Accordingly, we overrule both assignments of error and affirm the judgment of the trial court.


         {¶2} On or about December 3, 2014, Anthony A. Carpenter burglarized his father's home. Appellant was confined in jail from December 2, 2014 through December 11, 2014. On March 20, 2015, Appellant was indicted for one count of burglary, R.C. 2911.12(A)(3), a felony of the third degree. On April 15, 2015, Appellant was arraigned on the indictment for burglary, case number 14CR231.

         {¶3} The trial court held pretrials on November 9, 2015 and November 23, 2015. Appellant failed to appear for the November 9, 2015 pretrial. On November 23, 2015, Appellant was scheduled for a change of plea hearing, which was to take place on December 21, 2015.

         {¶4} The matter was continued several times for reasons which are not completely clear. On March 2, 2016, Appellant again failed to appear for a pretrial hearing and a warrant for arrest was issued. Appellant was again confined in jail on April 19, 2016. On April 25, 2016, Appellant was allowed a recognizance bond with GPS.

         {¶5} On June 27, 2016, Appellant appeared for a settlement conference. The State and Appellant reached an agreed resolution in the matter. Appellant changed his plea and sentencing was continued in order to obtain a pre-sentence investigation report. However, instead of receiving the sentence to which the parties had agreed, at the sentencing hearing on August 22, 2016, Appellant was sentenced to a maximum prison term, thirty-six months. He was also given 9 days of jail-time credit.

         {¶6} This timely appeal followed. Where pertinent, we set forth additional facts below.



         {¶7} R.C. 2953.08(G)(2) defines appellate review of felony sentences and provides, in relevant part, as follows:

"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.
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: (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; (b) That the sentence is otherwise contrary to law."

         {¶8} "[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines 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." State v. Bass, 4th Dist. Washington No. 16CA32, 2017-Ohio-7059, ¶ 6, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. This is a deferential standard. Id. at ¶ 23. Furthermore, "appellate courts may not apply the abuse-of-discretion standard in sentencing-term challenges." Id. at ¶ 10. Additionally, although R.C. 2953.08(G) does not mention R.C. 2929.11 or 2929.12, the Supreme Court of Ohio has determined that the same standard of review applies to findings made under those statutes. Id. at ¶ 23 (stating that "it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court, " meaning that "an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence").

         {¶9} "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence, ' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.' " Bass, supra, at 6, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; Id. at ¶ 22.

         {¶10} Further, as noted by the Eighth District Court of Appeals: "It is important to understand that the 'clear and convincing' standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it clear that '[t]he appellate court's standard for review is not whether the sentencing court abused its discretion.' As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge. It is also important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review." Bass supra, at 7, quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 20-21, 992 N.E.2d 453.


         A. Assignment of Error One-Maximum Sentence

         {¶11} Appellant contends his maximum sentence of 36 months as to one count of burglary is not clearly and convincingly supported by the record. Appellant argues, given the record in this case, the 36-month maximum prison sentence pursuant to R.C. 2929.11 is not guided by the overriding principles of felony sentencing. Appellant requests this court, pursuant to the authority of R.C. 2953.08(G)(2), to reduce his sentence to community control. Appellant emphasizes these facts in support:

1) The underlying cause of Appellant's offense was his drug addiction;
2) The victim suffered no harm and explicitly requested treatment and rehabilitation as the punishment;
3) The State recommended community control; and,
4) The court found Appellant amenable to community control at the same hearing for a different offense.

         {¶12} Although trial courts have full discretion to impose any term of imprisonment within the statutory range, they must consider the sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. State v. Sawyer, 4th Dist. Meigs No. 16CA2, 2017-Ohio-1433, ¶ 16; State v.Lister, ...

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