COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71717 & 71718 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ANTON COLLINS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-342747 & CR-344787. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard A. Neff Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Uche Mgbaraho, Esq. 1677 East 40th Street Cleveland, Ohio 44103 Patrick E. Talty, Esq. 20325 Center Ridge Road, #512 Rocky River, Ohio 44116 -2- JAMES D. SWEENEY, C.J.: Defendant-appellant AntonCollins ( Collins ) appeals from the following: (1) the sentencing by the trial court subsequent to his guilty plea to Attempted Trafficking in Marijuana, a First Degree Misdemeanor [trial court case No. CR-342747/appellate case no. 71717]1; and, (2) the sentencing by the trial court subsequent to his guilty plea to Receiving Stolen Property (1989 Cadillac automobile), a Fourth Degree Felony [trial court case No. CR- 344787/appellate case no. 71718]2. For the reasons adduced below, we affirm. The records on appeal indicate that the trial court conducted the guilty plea hearing for both cases on November 18, 1996. At the close of this hearing, the court remanded the defendant for a presentence investigation report. At the December 4, 1996 sentencing hearing, the court identified the nature of the offenses before it and inquired of counsel whether he had read the presentence report (counsel indicated that he had read it) which had been prepared for the court. Then the defendant admitted to the court to having an addiction to drugs, whereupon the court addressed the defendant, as follows: * * * The Court having considered the factors 1This misdemeanor offense was committed on July 7, 1996. 2This felony offense was committed on September 24, 1996, and, having been committed after July 1, 1996, was subject to the new felony sentencing guidelines contained in Senate Bill II. -3- for sentencing as set forth in the Senate Bill II, and being aware of the fact that this is a fourth degree felony, with the presumption of community control sanctions finds that that (sic) presumption is far outweighed by the defendant's past record. This being the fifteenth and sixteenth time he's appeared in our court. And these offenses having taken place in close proximity to one another, in less than a year and shortly after strike that, shortly after, but one occurring while he was still out on probation under arrest for the first or under sanctions, and both occurring within a year of his having been released from incarceration. The Court further finds that he has previously been placed on probation, i.e., the equivalent of community control sanctions, and he's violated that. It's therefore going to be the sentence of the Court that in Case No. 342747, he will be sentenced to the Correctional Receiving Center in Lorain Ohio for six months. And in Case No. 344787-B, he'll be sentenced to the Correctional receiving Center in Lorain Ohio for a period of eighteen months. He will pay the cost in both cases, and his sentences will run concurrent with each other, and he may have full credit for time served. Good luck to you. * * * Sentencing hearing transcript, at 5-6. The lone assignment of error presented in appellate case No. 71717, the misdemeanor case, provides: WHETHER THE TRIAL COURT COMPLIED WITH THE PROVISIONS OF SENTENCING GUIDELINES AS MANDATED BY R.C. 2929.22. Under this assignment, appellant argues that the trial court did not consider the sentencing factors for misdemeanors contained in R.C. 2929.22(A), but rather relied on the sentencing factors -4- contained in Senate Bill II, which apply to felony convictions. R.C. 2929.22 provides: (A) In determining whether to impose imprisonment or a fine, or both, for a misdemeanor, and in determining the term of imprisonment and the amount and method of payment of a fine for a misdemeanor, the court shall consider the risk that the offender will commit another offense and the need for protecting the public from the risk; the nature and circumstances of the offense; the history, character, and condition of the offender and the offender's need for correctional or rehabilitative treatment; any statement made by the victim under sections 2930.12 to 2930.17 of the Revised Code, if the offense is a misdemeanor specified in division (A) of section 2930.01 of the Revised Code; and the ability and resources of the offender and the nature of the burden that payment of a fine will impose on the offender. (B) The following do not control the court's discretion, but shall be considered in favor of imposing imprisonment for a misdemeanor: (1) The offender is a repeat or dangerous offender; * * * * * * (D) The criteria listed in division (B) . . . shall not be construed to limit the matters that may be considered in determining whether to impose imprisonment for a misdemeanor. * * * The record of the sentencing hearing makes clear that the trial court considered the following factors contained in R.C. 2929.22: 1. The risk that the offender will commit another offense and the need for protecting the public from that risk. This was demonstrated by inference by the court's reference to the defendant's violation of probation and the fact that the defendant has been before the court sixteen times; -5- 2. The nature and circumstances of the offense. This was demonstrated by the court identifying the offenses which were before it at the hearing and the fact that the court had before it the presentence report, which undoubtedly contained the nature and circumstance of the offenses, the defendant's social history, financial ability to pay a fine, personal characteristics, and family situation. See Crim.R. 32.3; 3. The history, character, and condition of the offender and the need for correctional or rehabilitative treatment. These were demonstrated, albeit by inference, by the court's noting defendant's prior involvement with the court and the fact that defendant had seen fit to commit crimes while on probation. The condition of the defendant and the need for treatment, which the court heard and considered, was admitted by the defendant when defendant indicated that he had a drug addiction. Coupling the defendant's prior history of breaking the law and not complying with probation, and the information which was the subject of the presentence report, the court did not abuse its discretion in ordering incarceration rather than non-custodial rehabilitation; 4. The court noted that defendant was a repeat offender. The assignment contained in appellate case No. 71717 is overruled. The remaining two assignments concern appellate case No. 71718. The first of these two remaining assignments provide the following: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO A MAXIMUM JAIL TERM OF EIGHTEEN MONTHS BECAUSE IT FAILED TO CONSIDER ON THE RECORD THE FACTORS FOR FELONY SENTENCING AS SET FORTH IN R.C. 2929.12 AND 2929.13. Appellant believes that the trial court must note with -6- particularity on the record its sentencing considerations for the court to comply with its obligations under the sentencing guidelines contained in R.C. 2929.12 and .13, which themselves are non-exhaustive. This argument was found to be without merit in State v. Cyrus (1992), 63 Ohio St.3d 164, where the court provided: * * * Appellee [defendant-Cyrus] argues that the record does not support the conclusion that the trial court considered the criteria before imposing sentence. This court has held that: A silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12. State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus; accord State v. O'Dell (1989), 45 Ohio St.3d 140, 147, 543 N.E.2d 1220, 1227. Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria. * * * [Explanation added.] In the case sub judice, it is not questioned that the sentence was within the limits for incarceration for the felony offense. Also, there is no evidence offered by appellant which rebuts the presumption that the trial court, which did consider some of the sentencing factors on the record (see the four factors contained in the previous assignment's analysis), considered the remaining proper statutory sentencing criteria. Accordingly, this assignment is without merit. The second of the remaining two assignments provides the following: THE TRIAL COURT ABUSED ITS DISCRETION BY -7- FAILING TO STATE ORALLY OR IN WRITING MANDATED BY R.C. 2929.19(B)(2)(d) AND (e), THE REASONS FOR SENTENCING APPELLANT TO THE MAXIMUM SENTENCE FOR A FOURTH DEGREE FELONY. R.C. 2929.19(B)(1),(2)(d) and (e) provide: (B)(1) At the sentencing hearing, the court, before imposing sentence, shall consider the record, any information presented at the hearing by any person pursuant to division (A) of this section, and, if one was prepared, the presentence investigation report made pursuant to section 2951.03 of the Revised Code or Crim.R. 32.2, and any victim impact statement made pursuant to section 2947.051 [2947.05.1] of the Revised Code. (2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances: * * * (d) If the sentence is for one offense and it imposes a term for the offense that is the maximum prison term allowed for that offense by division (A) of section 2929.14 of the Revised Code, its reasons for the maximum prison term; (e) If the sentence is for two or more offenses arising out of a single incident and it imposes a prison term for those offenses that is the maximum prison term allowed for the offense of the highest degree by division (A) of section 2929.14 of the Revised Code, its reasons for imposing the maximum prison term. (Italization added.) It is unquestioned that the eighteen month prison term for the offense of Receiving Stolen Property is the maximum prison term available pursuant to R.C. 2929.14(A)(4). It is also equally beyond doubt that the two offenses at issue did not arise out of a single incident. Thus, R.C. 2929.19(B)(2)(e) is inapplicable to the sentencing herein, leaving only the trial court's alleged noncompliance with R.C. 2929.19(B)(2)(d) to be dealt with. -8- We conclude that the trial court did comply with its obligation to state its reasons for imposing the maximum prison term available. These reasons, although not specifically delineated by the trial court as a finding, were sufficiently stated by the court at the sentencing hearing: the appellant was a repeat offender who committed the offenses at issue while on probation shortly after having been released from incarceration on prior offenses. See the four factors contained in the first assignment of error of this opinion. The final assignment is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, CONCURS; DIANE KARPINSKI, J., CONCURS, WITH CONCURRING OPINION ATTACHED. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71717 & 71718 STATE OF OHIO : : -10- : Plaintiff-Appellee : : CONCURRING v. : : OPINION ANTON COLLINS : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 KARPINSKI, J., CONCURRING: I concur in the judgment of the majority opinion because the court sufficiently considered the specified criteria as required under the criminal sentencing law. However, I believe the presumption articulated in State v. Cyrus, ante, which the majority .