State v. Durden, Unpublished Decision (3-24-2000)
State v. Durden, Unpublished Decision (3-24-2000)
Opinion of the Court
Durden was charged by indictment with complicity to Burglary as a second degree felony. He entered a plea of not guilty. Pursuant to plea negotiations, the State reduced the degree of the offense as charged to a fourth degree felony and Durden entered a plea of guilty to that charge. Durden was convicted on his plea.
For a felony of the fourth degree, the court may impose a prison term of six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. R.C.
So the Court feels that a Community Control sanction would not be appropriate nor would the lowest possible sentence be appropriate since that would demean the offense.
This is a breaking and entering where the victim has been preyed upon before and I — I think that the Court's got to recognize that this is a serious offense and that given the defendant's record, the Court feels that the higher range of penalty would be more appropriate here for this offense.
There were firearms taken, I think, in this burglary; is that correct? There were some guns.
Okay. Based on that firearms were involved and the recidivism of the defendant, the Court finds that the maximum penalty should be imposed as this does become one of the worst forms of the offense, and I will impose — a sentence of 18 months to the state penitentiary and assess court costs to the defendant.
(6/27/99, T. p. 6).
Durden filed a timely notice of appeal. He presents a single assignment of error, which states:
THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT SENTENCED THE APPELLANT TO THE MAXIMUM SENTENCE ALLOWED FOR A FOURTH DEGREE FELONY WHEN THE COURT CONSIDERED THE ALLEGED THEFT OF FIREARMS AS A FACTOR THAT INDICATED THAT THE OFFENDER'S CONDUCT WAS MORE SERIOUS THAN CONDUCT NORMALLY CONSTITUTING THE OFFENSE.
Durden claims that the trial court impermissibly considered the fact that firearms were stolen when the court determined the seriousness of his Burglary offense for sentencing purposes. Durden argues that the court is limited to the matters in the factors which are set out in R.C.
R.C.
Durden also argues that any implication that firearms were involved in his offense should result in attachment of a firearm specification per R.C.
The assignment of error is overruled. The judgment of the trial court will be affirmed.
BROGAN, J. and WOLFF, J., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.