COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74469 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DAVID A. LESHER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JULY 29, 1999 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-357,948 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor DANIEL M. MARGOLIS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: GORDON S. FRIEDMAN Attorney at Law 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: Appellant appeals the sentence imposed on him by the trial court, contending that the court failed to comply with R.C. -2- 2929.14(B). e rial court complied with the statute, thus appellant's sentence is affirmed. For the reasons which follow, we conclude that tht On December 11, 1997, appellant David A. Lesher was indicted on one count of first degree aggravated arson, one count of second degree aggravated arson and one count of insurance fraud. Appel- lant eventually pled guilty to one count of aggravated arson, a felony of the second degree.1 The facts giving rise to appellant's indictment are as follows. Appellant, doing business as Dal Investments, bought, rehabilitatedand resold real estate in the inner city. Appellant also began a business known as Money Lenders, a licensed mortgage brokerage. Appellant's business performed well through 1996; how- ever, it began to decline by the end of 1997. Appellant was unable to pay several necessary bills. On November 8, 1997, appellant started a fire on the second floor of the building that housed his office. Appellant's father maintained a residence in the building, although he was not home at the time of the fire.2 Appellant apparently ransacked the first 1R.C. 2909.02 in relevant part, provides: (A) No person, by means of fire or explosion, shall knowingly do any of the following: (1) Create a substantial risk of serious physical harm to any person other than the offender; (2) Cause physical harm to any occupied structure; *** 2The building was thus an occupied structure since the definition, pursuant to R.C. 2909.01(C), does not require that the resident actually be present. -3- floor of the building and cut the phone and alarm wires and also smashed the phone and alarm boxes. The disabled alarm system actually caused the firefighters to respond immediately. When firefighters arrived, they detected a strong smell of kerosene and observed an oily residue on the floors and stairs. The firefighters were able to extinguish the blaze. The investigation revealed multiple points of origin for the fire, as well as kerosene on table tops, desk tops and on top of documents on the first floor of the building, which also contained lit cigarettes placed inside of match books to act as timing devices. A subsequent search warrant allowed investigators to discover documents indicating appellant owed money to numerous companies as well as city and state taxes and Workers Compensation. An ammunition box containing numerous rounds of armor piercing ammunition was also recovered. Appellant admitted that he was responsible for igniting the fire. R.C. 2929.14(A)(2) provides that a prison term imposed for a felony of the second degree shall be two, three, four, five, six, seven or eight years. The trial court's judgment entry issued April 30, 1998 reads: The Court finds that prison is consistent with the purposes of R.C. 2929.11. Deft intention- ally set fire to own business, and had dis- armed alarm system, fire placed safety forces in jeopardy. Court imposes a prison term of 7 years at Lorain Correctional Institution. *** Deft to make restitution to the Cleveland Fire Department. Deft to pay court costs and fine of $15,000.00. Appellant's sole assignment of error states: -4- THE TRIAL COURT ERRED WHEN IT FAILED TO SEN- TENCE APPELLANT TO THE MINIMUM TERM OF INCAR- CERATION PURSUANT TO OHIO REVISED CODE SECTION 2929.14(B). Appellant argues that the trial court failed to comply with the guidelines established by R.C. 2929.14(B) when it sentenced appellant to a term of seven years. The court sentenced appellant in accordance with the provi- sions of Am.Sub.S.B. No. 2, which became effective July 1, 1996. R.C. 2929.14(B) provides that when a trial court is sentencing an offender who has not previously served a prison term: *** the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. Appellant contends that the trial court's imposition of a term of seven years does not comply with the goals established by the current sentencing structure. He argues that he is a first offender, has never served a prison sentence, is a husband and father, and has lived his life, up until the arson incident, as a law-abiding citizen. It is appellant's position that the circum- stances surrounding his case warrant the imposition of the minimum sentence. Pursuant to R.C. 2929.12, unless a mandatory prison term is required, a trial court has discretion to determine the most effective way to comply with the purposes and principles of sentencing as established in R.C. 2929.11. Those principles are -5- to protect the public from future crime by the offender and others and to punish the offender. R.C. 2929.12 also provides factors to be considered relating to the seriousness of the offender's conduct (2929.12[B] and [C]) and factors relating to the likelihood of the offender's recidivism (R.C. 2929.12[D] and [E].) However, the court may also consider other factors relevant to achieving those purposes and principles of sentencing. R.C. 2929.13 establishes guidelines by the degree of the felony on which sentence is to be imposed. For a felony of the second degree, it is presumed that a prison term is necessary to comply with the purposes of sentencing. R.C. 2929.13(D). At the sentencing hearing, the trial judge stated: All right. The Court has the obligation of pronouncing sentence in this case. I agree with certain remarks on both sides of this issue. *** In a sense arson is not unlike poison and, of course, we can see from these exhibits that there was a deliberate attempt on the multiple occasions, granted over a brief period of time, but if we would liken the situation to pulling the trigger, the trigger was pulled several times in this building. What if the defendant's father was upstairs and present, that (sic) he would be exposed to this risk of damage. The fact that he was absent is a blessing. I'm not going to assume he talked to his father and told his father to leave before he set fire to the premises. *** We know that the purposes for sentencing are punishment, protection and deterrence, and it seems to the Court that the Court should send a message to the community that the Court and the community is (sic) interested in the -6- protection of its civil servants and particu- larly those that place themselves in harms way every day. I think it was significant that the defendant not only attempted to ignite a congregation (sic) but he attempted to thwart the safety forces with regard to the telephone situation. I think this conduct in many parts displays a guilty deliberate mind to achieve some type of financial advantage without regard to anyone else's safety in the community. I am also to take into account the defendant ultimately cooperated with the authorities and with the Court by entering a plea of guilty, and I will take that into account. The trial judge's comments indicate that he, on the record, addressed both the seriousness of appellant's conduct and the need to protect the public from future similar crimes. He acknowledged that appellant's actions put others at risk, including appellant's father and the firefighters. We may infer from the trial court's language that he believed that to impose the shortest prison term would demean the seriousness of the offender's conduct or [would] not adequately protect the public from future crime by the offender or others. 3 The trial judge furthermore found it significant that appellant attempted to delay the response time of the firefighters and police by severing the telephone lines. He also observed that appellant's actions failed to take into consideration the safety of any member of the community. Additionally, the trial judge noted that he wished to send a message to the community that its civil 3Ideally, the trial judge would more clearly relate his conclusions to the facts in evidence. -7- servants would be protected. Included in the testimony presented to the trial judge by Captain Cooney of the Cleveland Fire Investigation Unit was the captain's opinion that if the fire had engulfed the entire building or had reached the room where the bullets were located it certainly would have caused the death of the firefighters in their suppression efforts[.] Thus, the trial judge stated, on the record, his reasons for imposing more than the minimum sentence as required by R.C. 2929.14. R.C. 2929.14(B) requires that the minimum sentence be imposed unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. (Emphasis added.) The judge acknowledged the seriousness of appellant's conduct. He also addressed the need to protect the community from future such offenses, whether by appel- lant or by others. This court has acknowledged that where the court, at sentenc- ing, considered the need to protect the public and to punish the offender, and the court apparently determined that appellant's actions constituted the worst form of the offenses, justifying longer prison terms, the trial court thus inferr[ed] that shorter prison terms would demean the seriousness of appellant's conduct. State v. Albert (1997), 124 Ohio App.3d 225, 228. Moreover, this court has also held that a trial judge complies with R.C. 2929.14(B) when he comments: And then there is a more there is a serious- ness factor present showing this is among the -8- most more serious crimes, and that is the relationship with his victim facilitated the offense, and that fact that the victim was the victim is a former girlfriend and the victim is also her new husband. *** He set a car on fire outside of two homes in the middle of the night with people sleeping in their houses. Human beings could have been incinerated. *** Murder would be 15 to life ***. State v. Groce (Dec. 17, 1998), Cuyahoga App. No. 73890, unre- ported, 1998 WL 895291. The court reasoned that these statements obviously indicate that a minimum sentence would demean the seriousness of the offense. The above cases indicate that a trial court complies with the dictates of R.C. 2929.14(B) when it addresses the seriousness of the offense and the need to protect the public, without the need for an explicit finding that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. Appellant maintains that the record fails to support the sentence imposed by the trial court and that the sentence imposed is contrary to law. In pertinent part, R.C. 2953.08(A)(1) permits the appeal of the trial court's sentencing of the offender when the sentence is contrary to law. R.C. 2953.08(A)(4). R.C. 2953.08(G)(1) provides that a reviewing court hearing an appeal pursuant to, inter alia, division (A) of this section: *** may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the trial court for resentencing if -9- the court clearly and convincingly finds any of the following: (a) That the record does not support the sentence; *** (d) That the sentence is otherwise con- trary to law. See Stat e v. Assad (June 11, 1998), Cuyahoga App. Nos. 72648, 72649, unreported, at 12 (pursuant to R.C. 2953.08[G], appellate court may only modify or vacate lower court's felony sentence if it clearly and convincingly finds sentence to be unsupported in record, contrary to guidelines in R.C. 2929.13 or otherwise con- trary to law). Upon a thorough review of the record, this court does not find, by clear and convincing evidence, that the record fails to support appellant's sentence or that the sentence is contrary to law. The trial court did not err in its imposition of sentence on appellant. The trial judge's comments revealed that he believed appellant's offense was quite serious, that his actions could have led to a much greater harm, and that the community, in particular its civil servants, require protection from future crime by the offender or others. The trial court's order is affirmed. -10- 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 Cuyahoga County Court of Common Pleas 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, A.J. CONCURS TIMOTHY E. McMONAGLE, J. CONCURS IN JUDGMENT ONLY JUDGE KENNETH A. ROCCO 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. 22. 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 .