State v. Henning, Unpublished Decision (4-25-2003)
State v. Henning, Unpublished Decision (4-25-2003)
Opinion of the Court
OPINION
{¶ 1} Defendant, Christian Henning, appeals from her conviction and sentence on three counts of burglary.{¶ 2} Defendant was indicted on four counts of burglary, which are felonies of the third degree. R.C.
{¶ 3} Defendant has timely appealed to this court from her conviction and sentence.
{¶ 5} When a court imposes sentence for a felony upon an offender who has not previously served a prison term, the court must impose the shortest prison term authorized for the offense 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. R.C.
{¶ 6} The prison sentence available for a felony offense of the third degree is one, two, three, four or five years. R.C.
{¶ 7} The trial court did not make either one of the specific alternative findings that R.C.
{¶ 8} The trial court's observations the State refers to are as follows:
{¶ 9} "Regrettably, I think what has happened here, there are a number of items that have been pawned and/or sold on the street and potentially not recoverable at all.
{¶ 10} "Ms. Henning, it's not much consolation to people like Mr. Stevens who spoke before me today. There is no way this Court or you can restore his piece (sic) of mind. You not only steal from people property that they have earned and worked hard to earn but also property that has great sentimental value. How can this Court return to a man an Air force ring that his father perhaps got by serving in World War II or the Korean War? If that's gone, it's gone permanently and there is no way to restore that. And as I said, there is also no way to restore anybody's piece (sic) of mind whose home has been burglarized.
{¶ 11} "You weren't involved in one incident, Ms. Henning. You were involved with a group of individuals, one of whom I would characterize as a career criminal. You were involved in multiple burglaries. You pled guilty to multiple burglaries, Count 1, 2 and 4, all felonies of the third degree. Any presumption or consideration that since this is your first offense you are entitled to community control or probation is not the case because this was orchestrated, it was planned as a lookout. You are as culpable as the man who went in and took the property and took away the victims' piece (sic) of mind.
{¶ 12} "The recommendation for prison is consistent with the factors set forth in the Ohio Revised Code. I have considered the seriousness and recidivism factors. It is the judgment and sentence of this Court that you be confined at Ohio State Reformatory for Women for a period of two years."
{¶ 13} Quoting our previous holding in State v. Shepherd (Dec. 6, 2002), Montgomery App. No. 19284, we explained in State v. Rothgeb (Jan. 31, 2003), Champaign App. No. 02CA7, at pp. 6-7:
{¶ 14} "`The findings and reasons requirement has a dual purpose. One purpose is to induce a more systematic gradation of penalties within an available range that are imposed by relating the sentence to the particular conduct and offender involved. The other is to facilitate the limited appellate review of certain sentences that R.C.
{¶ 15} "To achieve the foregoing goals with respect to consecutive sentences which are ordered, R.C.
{¶ 16} The same conclusions apply to the particular findings that R.C.
{¶ 17} Having failed to make one of the two alternative findings set out in R.C.
{¶ 18} The assignment of error is sustained. Defendant's sentence is reversed and vacated, and this matter will be remanded to the trial court for resentencing in accordance with this opinion.
FAIN, P.J. and YOUNG, J., concur.
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