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State v. Moore

Court of Appeals of Ohio, Twelfth District, Butler

May 7, 2018

STATE OF OHIO, Plaintiff-Appellee,
EMMITT LEE MOORE, Defendant-Appellant.


          Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, for plaintiff-appellee

          Michele Temmel, for defendant-appellant


          PIPER, J.

         {¶ 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:


         {¶ 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 to law.

         {¶ 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 ...

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