Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa
Concannon, for plaintiff-appellee
Michele Temmel, for defendant-appellant
1} Defendant-appellant, Emmitt Moore, appeals his
sentence in the Butler County Court of Common Pleas after
pleading guilty to grand theft while subject to postrelease
control from a previous conviction.
2} Moore, who had previously been convicted of theft
and breaking and entering, was on postrelease control when he
robbed an automotive store of multiple items, including
tools, car stereos, and security equipment. Moore tried to
sell the items on a website, but was apprehended when the
purported buyer revealed himself as an undercover officer.
Moore admitted that he stole the items to pay personal bills,
provide food for his daughter, and to support his $200 per
day heroin habit.
3} Moore was indicted on two counts of breaking and
entering and one count of grand theft. Moore agreed to plead
guilty to grand theft, and the state dismissed the breaking
and entering charges. After accepting Moore's guilty
plea, the trial ordered a presentence investigation report
and scheduled sentencing for a future date.
4} During the sentencing hearing, Moore requested
community control sanctions rather than prison, including
participation in the community correctional center program in
which he had been accepted. However, counsel informed the
trial court that Moore was facing new charges in a different
court for grand theft, and was thus ineligible for
participation in the correctional center program. The trial
court sentenced Moore to serve 18 months on the grand theft
charge, as well as 12 months for violating the terms of his
postrelease control. The trial court ordered the sentences
consecutively, for an aggregate sentence of 30 months. Moore
now appeals the trial court's sentence, raising the
following assignment of error:
5} THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT WHEN IT IMPOSED MAXIMUM CONSECUTIVE SENTENCES.
6} Moore argues in his assignment of error that the
trial court erred in sentencing him.
7} An appellate court reviews the imposed sentence
according to R.C. 2953.08(G)(2), which governs all felony
sentences. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1. Pursuant to that statute, an
appellate court does not review the sentencing court's
decision for an abuse of discretion. Id. at ¶
10. Rather, R.C. 2953.08(G)(2) provides that an appellate
court can 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
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 either contrary to law or unsupported by the
record. Marcum at ¶ 7.
9} Moore was convicted of grand theft, a felony of
the fourth degree. According to R.C. 2929.14(A)(4), the
applicable prison sentence range for a fourth-degree felony
is six to 18 months. The trial court sentenced Moore to 18
months, which is in the applicable range for his conviction.
At both the sentencing hearing and within the judgment entry,
the trial court noted its consideration of the purposes and
principles of sentencing according to R.C. 2929.11 as well as
the seriousness and recidivism factors in R.C. 2929.12. The
trial court also informed Moore of the pertinent postrelease
control sanctions. Thus, the sentence is not contrary to law.
10} The trial court also ordered Moore to serve 12
months for his violation of the prior postrelease control
terms, and ordered such consecutive to the 18-month sentence
for grand theft. While Moore argues that this sentence was
contrary to law because the trial court did not make any