State v. Montgomery, Unpublished Decision (5-16-2005)
State v. Montgomery, Unpublished Decision (5-16-2005)
Opinion of the Court
OPINION
{¶ 1} Defendant-appellant, William H. Montgomery, appeals the decision of the Clermont County Court of Common Pleas, sentencing him for robbery. We affirm the trial court's decision.{¶ 2} On October 13, 2003, appellant and Stanley Jackson robbed a gas station in Clermont County. Appellant was charged with two counts of robbery in violation of R.C.
{¶ 3} Assignment of Error No. 1:
{¶ 4} "The trial court erred in sentencing the defendant to the maximum term of 5 years due based upon the defendant's conviction of a third degree felony."
{¶ 5} Appellant argues that his sentence should be vacated because the trial court failed to provide its reasons for imposing the maximum sentence in accordance with State v. Comer,
{¶ 6} Before imposing a maximum prison sentence, the sentencing court must find that either: (1) the offender committed the worst form of the offense; (2) the offender poses the greatest likelihood of committing future crimes; (3) the offender is a "major drug offender"; or (4) the offender is a "repeat violent offender." R.C.
{¶ 7} R.C.
{¶ 8} "* * *
{¶ 9} "(2) The offender previously was adjudicated a delinquent child * * *, or the offender has a history of criminal convictions.
{¶ 10} "(3) The offender * * * has not responded favorably to sanctions previously imposed for criminal convictions.
{¶ 11} "(4) The offender has demonstrated a pattern of drug or alcohol abuse 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."
{¶ 12} Appellant claims that the trial court did not adequately state findings to support imposing the maximum sentence. After reviewing the record, we disagree, and find that the trial court properly stated its findings to support the imposition of the maximum sentence.
{¶ 13} At the sentencing hearing, the trial court stated on the record that: "[Appellant] was previously adjudicated to be a delinquent child in the State of Florida for robbery. [Appellant has] previously been convicted as an adult of receiving stolen property, escape, burglary and theft. After committing the offense in this case, [appellant] committed and [was] convicted of resisting arrest and theft. * * * [Appellant also] has aggravated robbery, robbery, and abduction charges that are pending in Hamilton County."
{¶ 14} The trial court continued, stating: "[Appellant] has not responded favorably to rehabilitative treatment. * * * He has a long-standing history of abusing drugs including marijuana, cocaine, pills, LSD, methamphetamine, and heroine. * * * He has not responded favorably to sanctions previously imposed for criminal convictions as indicated by the fact that he's re-offended while on probation and parole. And he's continued to re-offend. * * * I have to find based on the record, which I think is rather clear, that he poses the greatest likelihood of recidivism. And, therefore, I will impose a stated prison term of five years in this case."
{¶ 15} The record indicates the trial court made the finding that appellant poses the greatest likelihood of committing future crimes pursuant to R.C.
{¶ 16} Assignment of Error No. 2:
{¶ 17} "The trial court erred in sentencing the defendant in excess of the term of imprisonment to which it could sentence the defendant based solely upon the fact of defendant's conviction, but instead, relied upon facts neither proven beyond a reasonable doubt nor admitted to by the defendant, in violation of the holding of Blakely v. Washington (2004), 542 U.S. ___,
{¶ 18} Appellant argues that the trial court violated the rule set forth in Blakely v. Washington (2004), 542 U.S. ___,
{¶ 19} As this court held in State v. Combs, Butler App. No. CA2000-03-047, 2005-Ohio-1923, in applying the Supreme Court's holding inBlakely, along with its holdings in Apprendi v. New Jersey (2000),
{¶ 20} The provisions in R.C.
{¶ 21} Assignment of Error No. 3:
{¶ 22} "The trial court erred in imposing a sentence which was disproportionately more severe to that imposed upon the co-defendant who was the principal offender, in violation of his constitutional rights to be free from cruel and unusual punishment, to the equal protection of the laws, and to due process of the law, as well as the mandate of R.C. § 2929.11(B)."
{¶ 23} According to App.R. 16(A), which governs the contents of appellate briefs, "[t]he appellant shall include in its brief * * * [a]nargument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support ofthe contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." (Emphasis added.) App.R. 12(A)(2) provides that an appellate court "may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16." See State v. Steele, Butler App. No. CA2003-11-276, 2005-Ohio-943.
{¶ 24} Further, an appellate court may disregard an assignment of error where the litigant has not provided any substantive argument in its brief for its assignment of error. State v. Rivers (1977),
{¶ 25} Appellant argues that his sentence is inconsistent with sentences imposed for similar crimes committed by similar offenders. Appellant maintains that his five-year sentence should be vacated because it is disproportionate to the three-year sentence imposed upon Stanley Jackson, the principal offender. We disagree.
{¶ 26} An appellate court may not disturb a sentence unless the court finds, by clear and convincing evidence, that the sentence is not supported by the record or is contrary to law. R.C.
{¶ 27} R.C.
{¶ 28} Contrary to appellant's assertion, consistency does not necessarily mean uniformity. See State v. Ryan, Hamilton App. No. C-020283, 2003-Ohio-1188, ¶ 10; State v. Donahue, Wood App. No. WD-03-083,
{¶ 29} As the Ninth Appellate District stated in State v. Quine,
Summit App. No. 20968, 2002-Ohio-6987, ¶ 12-13, "[c]onsistency requires a trial court to weigh the same factors for each defendant, which will ultimately result in an outcome that is rational and predictable. Under this meaning of `consistency,' two defendants convicted of the same offense with a similar history of recidivism could properly be sentenced to different terms of imprisonment. * * * Thus, the only way for Appellant to demonstrate that his sentence was `inconsistent,' that is, contrary to law within the meaning of R.C.
{¶ 30} After reviewing the record, we find that the trial court appropriately considered the overriding purposes of sentencing and imposed a sentence consistent with those imposed for similar crimes committed by similar offenders. Further, there is no requirement that co-defendant's receive equal sentences. State v. Lloyd, Lake App. No. 2002-L-069, 2003-Ohio-6417, ¶ 21. Nothing in the record indicates that the difference in appellant's sentence from that of the codefendant is a result of anything other than the individualized factors the court applied to appellant. See State v. Beasley, Cuyahoga App. No. 82884, 2004-Ohio-988, ¶ 23. Appellant's third assignment of error is overruled.
{¶ 31} Judgment affirmed.
Walsh, P.J., and Young, J., concur.
Reference
- Full Case Name
- State of Ohio v. William Henry Montgomery
- Cited By
- 4 cases
- Status
- Unpublished