State v. Whittenberger, Unpublished Decision (12-3-1999)
State v. Whittenberger, Unpublished Decision (12-3-1999)
Opinion of the Court
On December 1, 1997, Carol Howd was brutally beaten to death and Guy Lance was seriously injured during a burglary of her residence located behind LCI Computers in Palmyra Township, Portage County, Ohio. On December 19, 1997, appellant confessed his involvement in the crime to Sheriff Kaley and implicated his co-defendants. Appellant told Sheriff Kaley that he and his friends, Douglas and Michael Jenkins, drove to LCI Computers in order to break into the store and steal computer equipment. When they arrived at the store, Douglas Jenkins left the car to determine whether anyone was still inside the business. When he returned, he reported that he heard someone snoring. Appellant gave the following description of his involvement:
"I wasn't keen on the idea of going in there with people, but Mike said we were gonna go in there and have Doug tape them up, you know, put tape over their mouth and eyes. Then they would like turn on the porch light. I was supposed to be driving around in the car and pull into the driveway and then they'd turn on the porch light so I could pull the car in and then they'd load it up. So, I let them out at the corner of that road and another road and Doug took a tire iron and Mike took his gun, and they were wearing like T-shirts over their heads * * *."
Appellant then drove home with the Jenkins brothers and watched them discard their bloody clothes.
On December 24, 1997, appellant was indicted by the Portage County Grand Jury on one count of complicity to commit aggravated murder, in violation of R.C.
On March 4, 1998, appellant agreed to plead guilty to complicity to commit aggravated burglary, in exchange for the State dropping the remaining charges against him. After conducting a sentencing hearing, the trial court ordered that appellant be sentenced to the Ohio Department of Rehabilitation and Correction, Grafton, Ohio for a definite term of imprisonment of ten years, the maximum term of imprisonment for the offense of aggravated burglary. From this judgment of conviction, appellant assigns the following error:
"The trial court erred, to the prejudice of defendant, in sentencing defendant to the maximum sentence of ten years for the crime of complicity to aggravated burglary."
In his sole assignment of error, appellant alleges that the trial court erred by imposing the maximum sentence against him. Appellant contends that his sentence was inappropriate because he did not commit the worst form of the offense. He maintains that because he was only convicted of complicity to commit aggravated burglary and the Jenkins brothers actually committed the crime, he did not commit the worst form of aggravated burglary.
In State v. Edmonson (1999),
R.C.
"The court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense * * * only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders * * *, and upon certain repeat offenders * * *."
In the instant case, the trial court specifically found that "defendant committed the worst form of Aggravated Burglary and the Defendant poses a great likelihood of committing future crimes." At the sentencing hearing, the trial court explained its reason for finding that appellant had committed the worst form of aggravated burglary. It stated: "This court can conceive of no worse aggravated burglary that could be committed than where an individual asleep in [her] bed loses [her] life and another person is seriously injured." The trial court gave no reason for why it believed that appellant posed a great likelihood of committing future crimes. Because an offender must fit within only one of the categories set forth in R.C.
Because appellant received the maximum sentence for the offense, he is entitled to de novo review of the sentence by this court. See
Appellant was convicted of aggravated burglary, a felony of the first degree. Under R.C.
The trial court stated that it chose to sentence appellant to the maximum because he committed the worst form of aggravated burglary. Under R.C.
To determine whether an offender committed the worst form of an offense, the trial court should consider the totality of the circumstances. State v. Garrard (1997),
Appellant asserts that the record does not support the trial court's finding that he commited the worst form of aggravated burglary because he stayed in the car and did not help the Jenkins brothers brutally beat the victims. He argues that the trial court should have considered appellant's individual participation in the offense rather than focus on the victims' injuries to determine whether appellant committed the worst form of aggravated burglary. The argument that appellant is less culpable because he was convicted as an accomplice ignores R.C.
"Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense."
[Emphasis added].
Appellant is no less culpable because he was an accomplice to the aggravated burglary. Because appellant participated in an aggravated burglary that was the worst form of the offense, we cannot find, by clear and convincing evidence, that the maximum sentence was not supported by the record or that the sentence was contrary to law. The trial court did not abuse its discretion by sentencing appellant to the maximum term of imprisonment for the offense of aggravated burglary. Appellant's sole assignment of error has no merit.
For the foregoing reasons, the judgment of the Portage County Court of Common Pleas is affirmed.
CHRISTLEY, P.J, O'NEILL, J., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.