Court of Appeals of Ohio, Seventh District, Jefferson
Criminal Appeal from the Court of Common Pleas of Jefferson
County, Ohio Case No. 17-CR-143
Affirmed. Atty. Jane M. Hanlin, Jefferson County Prosecutor
and Atty. Edward L. Littlejohn, Jr., Assistant Prosecuting
Attorney, Jefferson County Justice Center, for
Scott C. Essad, for Defendant-Appellant.
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
Appellant James K. Bishop appeals the January 18, 2018
judgment entry convicting him of various offenses stemming
from a burglary. Appellant argues that his sentence is
disproportionate to defendants who have committed similar
crimes. He also argues that the trial court's imposition
of consecutive sentences is contrary to law. For the reasons
provided, Appellant's arguments are without merit and the
judgment of the trial court is affirmed.
and Procedural History
Appellant was employed by Tom Brown Construction, owned by
Mr. Brown, in early November of 2016. (5/14/18 Trial Tr., p.
108.) The company was hired to complete a project inside the
victim's garage. On the first day of construction, Brown
purchased a tool that belonged to the victim's recently
deceased husband for $100. Brown gave the victim five
twenty-dollar bills as payment. While the victim and Brown
were completing the transaction, Appellant surprised the
victim by exiting the house from the kitchen, as she was
unaware that he had been inside her home. (5/14/18 Trial Tr.,
p. 135.) At some point, Brown left the job, leaving Appellant
and another employee at the house to complete the work.
During construction, Appellant and the other employee asked
the victim to use her restroom. She granted them permission.
The men used the restroom and returned to the garage to
continue their work. Sometime thereafter, the victim went
into her garage to check on the progress of the work, but did
not see Appellant. The other employee informed her that
Appellant had gone back inside to use the restroom. There are
only two doors into the victim's house: one in the
kitchen leading to a patio and one in the front of the house
leading to the front yard. As she was inquiring, Appellant
suddenly exited the house through the kitchen door. The
victim thought this was odd. She knew he used the front door
to enter the house, because she had just left her kitchen and
did not see him enter through the kitchen. The victim said
she was upset that Appellant had entered her house without
her permission, but did not address this issue with him.
Sometime thereafter, the victim again checked on the work and
did not see Appellant. The other employee explained that he
had, once again, gone to use the bathroom. Appellant returned
to the garage shortly thereafter.
After Appellant and the other employee left for the day, the
victim realized she could not find the money Brown had given
her for the tool. When she entered her bedroom, she noticed
that her jewelry box was open and its contents had been
removed. She went into her closet to check a lock box that
contained her deceased husband's jewelry and found that
the box had been pried open and its contents had been
removed. The victim called Brown and gave him this
At first, Brown could not make contact with Appellant, who
did not go to work at the victim's house the next day.
Eventually Appellant contacted Brown to ask for his paycheck.
Brown accused Appellant of taking the items, and he denied
these allegations. Brown persisted, informing Appellant that
the stolen jewelry was worth more than $17, 000. Appellant
responded that the victim was exaggerating the value of the
items. Brown construed this statement by Appellant as a
Officer Jack Henderson of the Cross Creek Police Department
was assigned to investigate. Initially, he, too, could not
locate Appellant. After several days passed, Officer
Henderson contacted Appellant by phone and learned that he
was in Michigan working as a boilermaker. On investigation,
Officer Henderson discovered that Appellant had pawned
several items in East Liverpool and Toledo that matched the
description of the victim's missing items. Appellant
appears in the pawn shops' videos and a copy of his
driver's license was attached to their receipts.
On November 8, 2017, a grand jury indicted Appellant on: one
count of theft, a felony of the fourth degree in violation of
R.C. 2913.02(A(1), (B)(2); one count of receiving stolen
property, a felony of the fifth degree in violation of R.C.
2913.51(A), (C); one count of burglary, a felony of the
second degree in violation of R.C. 2911.12(A)(1), (D); and
one count of safe cracking, a felony of the fourth degree in
violation of R.C. 2911.31(A), (B).
Jury trial commenced on January 9, 2018. Appellant was found
guilty on all charges, however, the jury determined that the
state did not prove the value of the jewelry was in excess of
$17, 000. Thus, the conviction for theft was reduced from a
felony of the fourth degree to a felony of the fifth degree.
On January 18, 2018, the trial court sentenced Appellant to
one year of incarceration on the theft conviction, one year
for receiving stolen property, eighteen months for
safecracking, and eight years for burglary. The trial court
ordered the sentences for theft and receiving stolen property
to run concurrently with one another and concurrent with the
safecracking and burglary sentences. The safecracking and
burglary sentences were ordered to run consecutively.
Appellant's aggregate total sentence was nine and one
half years. A mandatory three-year postrelease control term
was imposed and the court credited Appellant with 110 days of
time served. This timely appeal followed.
TRIAL COURT, IN CONTRAVENTION TO THE OHIO REVISED CODE AND
CASE LAW, ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES.
We note that Appellant raises one assignment of error
addressing the trial court's imposition of consecutive
sentences. However, within this assignment of error Appellant
also argues that the trial court improperly considered facts
related to the victim during sentencing and erroneously
determined that he lacked remorse. At oral argument,
Appellant focused his argument on whether his sentence was
disproportionate to what a similar defendant might receive
with a less sympathetic victim. This argument attacks his
sentence generally, not the imposition of consecutive
sentences. For ease of understanding, Appellant's
arguments are divided into general sentencing issues and
consecutive sentencing issues, where they will be separately
Appellant argues that the trial court focused its analysis on
the victim and found her to be sympathetic due to the recent
death of her husband, her age, and that she cares for rescue
dogs. Appellant urges that as the victim was not chosen
because of her age or the recent death of her husband, the
court should not be permitted to take those factors into
consideration. Since the court used them in determining his
sentence, he believes that his sentence is disproportionate
to a sentence a defendant with a less sympathetic victim
would receive. Appellant also contends that since he did not
speak more than a few one-word statements to the trial court
at sentencing and did not testify at trial, the court could
not have truly determined whether he felt remorse.
The state responds that the record demonstrates the trial
court conducted an appropriate ...