State v. Salvano, Unpublished Decision (9-26-2003)
State v. Salvano, Unpublished Decision (9-26-2003)
Opinion of the Court
{¶ 2} On April 23, 2002, appellant entered a plea of guilty to one count of attempted robbery in violation of R.C.
{¶ 3} "The trial court erred by sentencing the defendant-appellant to the maximum term of eighteen-months imprisonment for attempted robbery, a fourth-degree felony."
{¶ 4} Appellant premises his assignment of error on three findings made by the trial court, which appellant claims were not supported by the record. First, appellant argues that the trial court erred when it found that the victim suffered psychological or economic harm. Next, appellant challenges the trial court's finding that there had been a failure of rehabilitation after previous convictions and a failure to respond to past probation or parole. Finally, appellant challenges the trial court's finding that appellant had a pattern of drug or alcohol abuse and had failed to acknowledge his problem or accept treatment. We reject appellant's arguments.
{¶ 5} We review a trial court's sentencing decision de novo. State v. Bellamy, 11th Dist. Nos. 2001-L-138 and 2001-L-139, 2002-Ohio-7137, at ¶ 15, citing, State v. DeFabio (Dec. 21, 2001), 11th Dist. No. 2000-P-0037, 2001 WL 1647169, at 2; State v. Wilson (June 23, 2000), 11th Dist. No. 99-L-026, 2000 WL 816641, at 2. We will not disturb a sentence unless we find, by clear and convincing evidence, that the record does not support the sentence or that the sentence is otherwise contrary to law. Bellamy at ¶ 15. "Clear and convincing evidence is that evidence which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." DeFabio at 2. See, also, Wilson at 2.
{¶ 6} In sentencing appellant, the trial court found that appellant attempted to cause or made an actual threat of physical harm to a person and that appellant had previously been convicted of an offense that caused physical harm to a person. R.C.
{¶ 7} R.C.
{¶ 8} "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 violent offenders * * *."
{¶ 9} In its judgment entry, the trial court found that, pursuant to R.C.
{¶ 10} R.C.
{¶ 11} "The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes:
{¶ 12} "(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section
{¶ 13} "(2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151 of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152 of the Revised Code, or the offender has a history of criminal convictions.
{¶ 14} "(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter 2151 of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152 of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions.
{¶ 15} "(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
{¶ 16} "(5) The offender shows no genuine remorse for the offense."
{¶ 17} In the instant case appellant admitted to several prior convictions, including convictions for attempted felonious assault, burglary, aggravated assault and drug offenses. Appellant, who was forty-one years old at the time of sentencing, admitted that he had spent fifteen years in prison. In addition to the underlying offense in this case, appellant had been sentenced for an offense he committed in Cuyahoga County. Both the instant offense and the Cuyahoga County offense occurred after appellant's most recent release from prison. There was also evidence that the offense in this case was drug related. Therefore, we cannot say that the record fails to support the trial court's determination that appellant had the greatest likelihood of committing future crimes.
{¶ 18} Appellant seems to argue that, in addition to finding that appellant posed the greatest likelihood to commit future crimes, the trial court was also required to find that appellant committed the worst form of the offense. That is, appellant seems to read the requirements of R.C.
{¶ 19} For the foregoing reasons, this appeal is dismissed as moot.
DONALD R. FORD, P.J., and WILLIAM M. O'NEILL, J., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.