State v. Alfano, Unpublished Decision (1-22-2003)
State v. Alfano, Unpublished Decision (1-22-2003)
Opinion of the Court
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Defendant-Appellant Glenda S. Alfano has appealed from a judgment order of conviction and sentence entered in the Medina County Court of Common Pleas for six counts of burglary and two counts of attempted burglary. This Court affirms.
{¶ 3} In July 2002, the court conducted Appellant's sentencing hearing. The court sentenced Appellant to a prison term of three years on each count of burglary and one of the counts of attempted burglary, to be served concurrently. The court also sentenced Appellant to a prison term of one year on the remaining count of attempted burglary, to be served consecutively to the concurrent three-year terms on the other seven counts. Appellant has timely appealed, asserting one assignment of error.
{¶ 5} In her sole assignment of error, Appellant has argued that the trial court erred in sentencing her to concurrent prison terms of three years each on seven counts of the indictment, and a consecutive term of one year on the remaining count. Appellant has contended that the court should have imposed the shortest prison term authorized for each offense, and should have ordered all prison terms to be served concurrently.
{¶ 6} An appellate court may remand a matter on appeal for resentencing if it clearly and convincingly finds that the court's findings are unsupported by the record or that the sentence imposed by the trial court is otherwise contrary to law. R.C.
{¶ 7} Appellant has first argued that the trial court failed to consider the factors set forth at R.C.
{¶ 8} "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 not likely to commit future crimes:
{¶ 9} "(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child.
{¶ 10} "(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense.
{¶ 11} "(3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years.
{¶ 12} "(4) The offense was committed under circumstances not likely to recur.
{¶ 13} "(5) The offender shows genuine remorse for the offense."
{¶ 14} While R.C.
{¶ 15} In the case sub judice, the trial court stated in its sentencing entry:
{¶ 16} "The Court has considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing under [R.C.
{¶ 17} Appellant has next asserted that the trial court erred in failing to impose the shortest prison terms authorized for the offenses of which she was found guilty. Appellant was convicted of five counts of burglary, all felonies of the third degree; one count of burglary, a felony of the second degree; and two counts of attempted burglary, one a felony of the third degree and one a felony of the fourth degree. Appellant has argued that the trial court should have imposed the minimum authorized prison terms on all counts, and ordered all sentences to be served concurrently to the shortest authorized prison term for the second degree felony.
{¶ 18} R.C.
{¶ 19} "[I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender *** and is not prohibited *** from imposing a prison term on the offender, the court shall impose a definite prison term that shall be one of the following:
{¶ 20} " ***
{¶ 21} "(2) For a felony of the second degree, the prison term shall be two, three, four, five, six, seven, or eight years.
{¶ 22} "(3) For a felony of the third degree, the prison term shall be one, two, three, four, or five years.
{¶ 23} "(4) For a felony of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months."
{¶ 24} The version of R.C.
{¶ 25} "[I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
{¶ 26} " ***
{¶ 27} "(2) 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."
{¶ 28} Rather than imposing the shortest prison terms authorized by R.C.
{¶ 29} "I didn't order the shortest term of imprisonment. The shortest term of imprisonment is to be imposed if you have not been sent to prison before and you haven't. However, in making a specific finding that because of the nature of these crimes and really the effect on this neighborhood and this community, that the law which requires me to give you the shortest term of imprisonment, it would be wrong to do so plus I think it would demean the seriousness of the offense and doesn't adequately protect the public."
{¶ 30} Consequently, the record shows that the trial court made the requisite findings for imposition of prison terms that exceeds the minimums both in its journal entry of sentence and on the record at Appellant's sentencing hearing. "R.C.
{¶ 31} Finally, Appellant has contended that the trial court erred in ordering her to serve her one-year sentence for attempted burglary consecutively with her prison terms on the remaining counts. R.C.
{¶ 32} "If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public[.]"
{¶ 33} R.C.
{¶ 34} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
{¶ 35} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 36} In addition, R.C.
{¶ 37} In the case at bar, the court stated in its sentencing entry:
{¶ 38} "Pursuant to [R.C.
{¶ 39} "The Court also finds that the harm caused by [Appellant] was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of [Appellant's] conduct."
{¶ 40} The transcript shows that the trial court also stated its findings on the record at the sentencing hearing:
{¶ 41} "With regards to the consecutive term, that one year that I am going to give you consecutively to this, I am going to make a determination that with regard to that, on the consecutive term, that the harm that was done in this situation was so great or unusual that a single term wouldn't adequately reflect the seriousness of the conduct and that it's necessary to protect the public and punish the offender and is not disproportionate to your conduct to do that."
{¶ 42} As both the journal entry of sentence and the transcript of the sentencing hearing make clear, the trial court complied with the requirements of R.C.
{¶ 43} "[I]n your own neighborhood, there were a number of homes that were broken into. These were breaking into homes occurred relatively violently, that is to say with breaking of glass and entering the home and cutting of the screens[.] *** Apparently you have a drug problem is the reason that you were entering some of these homes was to steal narcotics from these homes, folks that you knew had them, folks that you maybe didn't know whether they had them or not.
{¶ 44} "The problem is that to them, it almost doesn't make any difference because it's their home. And to this neighborhood, it doesn't make any [difference] because no matter what you were looking for, it doesn't make them safe anymore. And so when you weigh and balance all those things, you have to figure out what you are going to do."
{¶ 45} Thus, the court stated on the record its reasons for imposing consecutive sentences as mandated by R.C.
{¶ 46} After thoroughly reviewing the record, we conclude that Appellant has failed to demonstrate by clear and convincing evidence that the trial court acted contrary to law in imposing sentences that included more than the minimum prison terms, and in ordering consecutive service of certain of those terms. Appellant's assignment of error must fail.
SLABY, P.J. and BATCHELDER, J. CONCUR.
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