COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72504 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND HOMER PADGETT, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-344458 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor A. STEVEN DEVER Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MARK B. MAREIN 222 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -2- KARPINSKI, J.: Defendant-appellant HomerPadgett appeals from his guilty plea convictions for involuntary manslaughter with a firearm specification and having a weapon while under disability. Defendant, who was sixteen years of age at the time of the offenses, was originally charged with delinquency in the juvenile court for acts that would have constituted murder with an accompanying firearm specification under R.C. 2941.14.5. The matter was subsequently bound over to the common pleas court to try defendant as an adult. Defendant was thereafter indicted for murder with a firearm specification and having a weapon while under disability based on a prior finding of delinquency for drug trafficking. On April 9, 1997, immediately prior to the scheduled trial, defendant withdrew his plea of not guilty and entered a plea of guilty to reduced charges pursuant to a plea bargain. The prosecution agreed to amend the murder charge to the lesser offense of involuntary manslaughter, but retained the firearm specification and the original weapons disability charge. In return, defendant agreed to plead guilty to both counts and the firearm specification. The trial court conducted a guilty plea hearing in compliance with Crim.R. 11. The prosecution explained the terms of the plea agreement and reserved the right to argue its views concerning an appropriate sentence. Defense counsel commented on the plea and his discussions with defendant and requested a presentence report -3- prior to sentencing. The trial court thereafter conducted a colloquy with defendant before it accepted his guilty pleas and found him guilty of the two offenses and accompanying firearm specification. Denying defendant's request that the matter be referred for a presentence report, the trial court proceeded to sentencing. During that hearing, the prosecution stated that defendant was armed with a large .357 handgun despite his weapons disability from a finding, three years earlier, of drug trafficking delinquency. At a slumber party defendant had pointed the loaded weapon at four girls before he discharged the weapon into the victim. Defendant committed the offenses in the case at bar when he was sixteen years old, defense counsel stated. He also explained that defendant lived with his grandmother because his mother's boyfriend had killed one of his siblings. For sentencing purposes, defense counsel requested the judge to take into account defendant's age, life circumstances, future, the lack of any prior incarceration, and that the killing was not purposeful. The trial court ordered defendant to serve three years actual incarceration for the R.C. 2941.14.5 firearm specification, followed by the maximum ten-year sentence for involuntary manslaughter. The court also imposed a concurrent one-year term of imprisonment for his weapons disability conviction. Defense counsel objected to the sentence and the absence of a presentence report and requested the court to specify the reasons for the sentence. The court specifically emphasized the seriousness of the -4- crime of killing the young victim, the high chance for recidivism light of defendant's criminal history and recited in its sentencing order the following: The court finds that the imposition of anything less than the maximum term would demean the seriousness of the [in offenders sic] conduct, based upon his juvenile adjudication history, the likelihood of recidivism is high and any lesser sentence would not adequately protect the community nor punish the offender. Defendant timely appeals raising the following sole assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED THE MAXIMUM SENTENCE ON THE APPELLANT; A SIXTEEN YEAR OLD AT THE TIME OF THE OFFENSE, CONSIDERING THE LIMITED INFORMATION BEFORE THE COURT. This assignment lacks merit. Defendant generally contends the trial court abused its discretion when imposing the maximum ten-year sentence for his involuntary manslaughter conviction. Defendant also complains that the trial court did not obtain a presentence report prior to sentencing and that the record was inadequate to support its sentencing findings. Prior to adoption of the new Senate Bill 2 felony sentencing scheme, it was well established that sentencing courts were not required to order presentence reports when probation was not granted.1Crim.R. 32.2; State v. Cyrus (1992), 63 Ohio St.3d 164, syllabus. The new felony sentencing statutes do not provide for 1 Defendant committed the offenses on July 27, 1996, approximately three weeks after the effective date of Senate Bill 2. As a result, the new felony sentencing provisions apply to defendant's case. See State v. Rush (1998), 83 Ohio St.3d 53, syllabus paragraph two. -5- probation; they provide for community control sanctions. Griffin and Katz, Ohio Felony Sentencing Law (1998 Edition), Section 5.3 at pp. 395-396. Under the new felony sentencing scheme, the trial court is required to order a presentence investigation report only before granting community control sanctions. R.C. 2951.03(A)(1). Defendant has not cited any provision of the new felony sentencing scheme which dictates a contrary result. In fact, defendant's brief recognizes, contrary to his argument, that newly enacted R.C. 2929.19(B)(1) expressly specifies that the sentencing court consider such report only if one is prepared. (Brief at p. 9.) Thus, while ordering a presentencing report may be helpful, we are constrained to conclude under existing authority that such a report is not mandatory in all cases. The trial court did not grant community control sanctions, so obtaining a presentence report was not mandated by statute. Contrary to defendant's argument, moreover, we find that the trial court stated sufficient findings and reasons for imposing the maximum ten-year sentence and that they are supported by the record. The purposes of felony sentencing are to punish the offender and to protect the public from future crimes. R.C. 2929.11. When determining the appropriate sentence to impose in a particular case, the court must consider the seriousness of the crime and the likelihood of recidivism by the offender. R.C. 2929.12. The trial court in this case indicated the crime was more serious than the conduct normally constituting the offense of -6- involuntary manslaughter, because the victim he killed was a young girl fifteen years of age. R.C. 2929.12(B). Contrary to defendant's argument, this case was significantly more serious than negligent homicide because he was armed with a firearm despite his disability. He also pointed the large caliber .357 handgun at four girls before discharging it into the victim and killing her. Moreover, defendant was previously adjudicated delinquent for what would constitute the offense of drug trafficking. R.C. 2929.12(D)(2). By committing two additional felony offenses less than three years thereafter, he exhibited that he had not been rehabilitated to a satisfactory degree after his delinquency adjudication. R.C. 2929.12(D)(3). The statutory range of imprisonment in this case was between three and ten years. R.C. 2929.14(A)(1). The record indicates that the trial court made the specific findings necessary to impose a maximum sentence under R.C. 2929.14. During the sentencing hearing, the judge expressly emphasized defendant's extraordinarily high chance for recidivism. Moreover, the sentencing entry specifically provided as follows: The court finds that the imposition of anything less than the maximum term would demean the seriousness of the offenders [sic] conduct, based upon his juvenile adjudication history, the likelihood of recidivism is high and any lesser sentence would not adequately protect the community nor punish the offender. These findings overcome the statutory presumption for the minimum term of imprisonment under R.C. 2929.14(B) and are sufficient to impose the maximum term under R.C. 2929.14(C). -7- Defendant does not contest that these findings are sufficient to overcome the presumption of a minimum sentence, but argues that the trial court could not impose the maximum sentence because the trial court did not state that defendant had the greatest likelihood of committing future crimes. Although the trial court did not use those express terms, its finding that defendant's chance for recidivism is extraordinarily high sufficiently satisfied this statutory criteria. Extraordinary means exceptional to a high degree. Defendant's history of committing what would constitute three serious felony offenses, including killing another human being, carrying a large caliber firearm while under legal disability, and trafficking in drugs, in less than three years after he became a teenager, supports the trial court's findings and sentence. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. -8- 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. JOSEPH J. NAHRA, P.J., CONCURS; MICHAEL J. CORRIGAN, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE 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 .