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State v. Harris

Court of Appeals of Ohio, Twelfth District, Butler

December 18, 2017

STATE OF OHIO, Plaintiff-Appellee,
RICHARD HARRIS, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case Nos. CR2014-06-0953 and CR2014-11-1718

          Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, for plaintiff-appellee

          Charles M. Conliff, P.O., for defendant-appellant


          PIPER, J.

         {¶ 1} Defendant-appellant, Richard Harris, appeals the sentence imposed by the Butler County Court of Common Pleas after he was convicted of multiple felonies.

         {¶ 2} Harris was charged with crimes in two separate indictments. In the first indictment, Harris was charged with having weapons under disability, carrying concealed weapons, obstructing official business, and receiving stolen property. In the second indictment, Harris was charged with seven counts of trafficking in heroin and seven counts of possessing heroin. Harris pled guilty to having weapons under disability and four counts related to the possession and trafficking of heroin, and the remaining counts were dismissed.

         {¶ 3} The trial court accepted Harris' pleas, and sentenced him to community control. As a term of community control, the trial court ordered Harris to complete the Substance Abuse Mental Illness program (SAMI). The court also expressed that if Harris violated the terms of his community control sanctions, the sentence imposed for having weapons under disability would be 36 months, as well as an aggregate sentence of 18 months on the heroin-related convictions. The 18-month sentence was ordered consecutive to the 36-month sentence for having weapons under disability.

         {¶ 4} After completing approximately two years of community control successfully, Harris violated the terms of his community control by being terminated from SAMI and being charged with a new felony drug-related offense. Harris admitted his violations during a hearing on revocation of community control. The trial court then ordered Harris to serve the sentence as previously announced, for an aggregate sentence of 54 months in prison. Harris now appeals his sentence, raising the following assignment of error.


         {¶ 6} Harris argues in his assignment of error that the trial court erred in sentencing him to prison.

         {¶ 7} 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.

         {¶ 8} 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. 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.[1]

         {¶ 9} After reviewing the record, we first find that the trial court's sentence was not contrary to law. Harris was convicted of having weapons under disability, a felony of the third degree, and possession of heroin, a fourth-degree felony. According to R.C. 2929.14(A)(3)(b), "for a felony of the third degree * * * the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months." "For a felony of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months." R.C. 2929.14(A)(4). As such, the trial court sentenced Harris within the statutory range for his convictions where the court imposed a 36-month sentence for the third-degree felony and an 18-month sentence for the fourth-degree felony.

         {¶ 10} The trial court also considered the statutory factors before sentencing Harris. The trial court specifically stated during the sentencing hearing, "the Court's had an opportunity to consider this matter in conjunction with the purposes and the princip[les] [of] sentencing set forth in Ohio Revised Code Section 2929.11 and to consider the seriousness and recidivism factors set forth in Ohio Revised Code Section 2929.12." The trial court further noted its consideration of the ...

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