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State v. Delmont

Court of Appeals of Ohio, Eleventh District, Trumbull

December 11, 2017

STATE OF OHIO, Plaintiff-Appellee,

         Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2015 CR 00827.

          Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, (For Plaintiff-Appellee).

          Edward F. Borkowski, Jr., (For Defendant-Appellant).


          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Anthony Michael Delmont, entered pleas of guilty to one count of Attempted Burglary and one count of Burglary, felonies of the third degree. Appellant now appeals from the December 13, 2016 judgment of sentence entered by the Trumbull County Court of Common Pleas. At issue is whether the trial court erred when it imposed two 12-month concurrent sentences. The trial court's judgment is affirmed.

         {¶2} On July 13, 2015, Charles Gardner and his wife were awoken when they heard appellant, whom they did not know, kicking and banging in an attempt to open a sliding glass door to their home. Mr. Gardner got into a verbal altercation with appellant and chased appellant until he ran out of sight. Mr. Gardner then observed that his motor home, located next to the garage, had been forced open and ransacked. The inside of the motor home was damaged. Mr. Gardner reported thousands of dollars in damages to his insurance company, for which he paid a $500.00 deductible. Police were able to recover blood samples from various items in the motor home. DNA analysis revealed the blood was from appellant.

         {¶3} On November 10, 2015, appellant was indicted on four counts: Count 1, Attempted Burglary (F3), in violation of R.C. 2923.02 and R.C. 2911.12(A)(1)&(D); Count 2, Burglary (F3), in violation of R.C. 2911.12(A)(3)&(D); Count 3, Breaking & Entering (F5), in violation of R.C. 2911.13(A)&(C); and Count 4, Vandalism (F4), in violation of R.C. 2909.05(A)&(E).

         {¶4} In December 2015, appellant entered a residential drug treatment facility, known as Lia House, in Cleveland. He was given a bed at the facility and eventually transitioned into independent sober living. Appellant worked with a counselor, attended seven meetings per week, and participated in various classes and programming. He also maintained employment.

         {¶5} On August 22, 2016, appellant pled guilty to Count 1 and Count 2 (as stated above, but referred to as an "amended indictment"). Appellee, the state of Ohio, dismissed Count 3 and Count 4. The trial court ordered a presentence investigation report ("PSI").

         {¶6} A sentencing hearing was held on December 12, 2016. The trial court sentenced appellant to 12 months in prison on each count, to be served concurrently, for a total 12-month term of imprisonment. The court also ordered appellant to pay restitution in the amount of $500.00.

         {¶7} Appellant raises one assignment of error for our review:

         {¶8} "The sentence imposed by the trial court is contrary to law as a result of the court's failure to properly consider and weight [sic] the purposes and principles of felony sentencing (R.C. 2929.11) and the factors relating to the seriousness of the offense and recidivism (R.C. 2929.12)."

         {¶9} Felony sentences are governed primarily by R.C. 2953.08(G)(2). "[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. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶1, citing R.C. 2953.08(G)(2). A felony sentence is not contrary to law when it is within the statutory range and the trial court has complied with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12. State v. Tate, 11th Dist. Lake No. 2015-L-038, 2016-Ohio-8421, ¶17 (citation omitted). State v. Withrow, 2d Dist. Clark No. 2015-CA-24, 2016-Ohio-2884, ¶21 (citation omitted).

         {¶10} Appellant concedes his sentence is within the applicable statutory range. He challenges the trial court's consideration of the statutory seriousness and recidivism factors.

         {¶11} To ensure the sentence complies with the overriding principles of felony sentencing as stated in R.C. 2929.11, a court imposing a felony sentence is required to consider the seriousness and recidivism factors found in R.C. 2929.12. The trial court, however, "is not required to 'use specific language or make specific findings on the record in order to evince the requisite consideration of the applicable seriousness and recidivism factors (of R.C. 2929.12.)'" State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-Ohio-4198, ¶10, quoting State v. Arnett,88 Ohio St.3d 208, 215 (2000); see also State v. O'Neil, 11th Dist. Portage No. 2010-P-0041, 2011-Ohio-2202, ΒΆ34. Further, the "trial court is not required to give ...

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