[Cite as State v. Murphy,

.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010 CA 81

v. : T.C. NO. 10CR290

ROBERT MURPHY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 21st day of October , 2011.

..........

ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Robert Murphy appeals from his conviction and

sentence for one count of breaking and entering, in violation of R.C. 2911.13(A), a felony of

the fifth degree, and one count of burglary, in violation of R.C. 2911.12(A)(3), a felony of 2

the third degree. Murphy filed a timely notice of appeal with this Court on August 12,

2010.

I

{¶ 2} The instant appeals stems from two incidents which occurred during April of

2010. On April 13, 2010, deputies were dispatched to Advantage Car Credit located in

Clark County, Ohio, in order to investigate a break-in. The break-in was reported by an

employee who was opening the business that day after she observed a broken window at the

back of the building. Upon entering, the witness discovered that a television was missing,

and the interior had been ransacked. The employee ran to a nearby bank and called 911.

During their subsequent investigation, the deputies obtained information implicating Murphy

as the perpetrator of the break-in, and he was arrested and taken to jail.

{¶ 3} The second incident occurred on April 29, 2010, when deputies were

dispatched to the 1200 block of Wendell Avenue in New Carlisle, Ohio, after a witness

reported a suspicious white male carrying a blue bag and a large TV wrapped in plastic

walking down Wendell Avenue. The witness further reported that the suspicious male

walked to a residence located at 1223 Wendell Avenue and went inside. Upon arriving and

approaching the residence, the deputy observed a white van backing out of the driveway.

The deputy initiated a traffic stop of the vehicle in which Murphy was a passenger. The

reporting witness identified Murphy as the suspicious male earlier seen walking down

Wendell Avenue. The driver of the van, Kelly Tapia, informed the deputies that she had

reluctantly given Murphy a ride in order to get him away from her children who were present

at 1223 Wendell Avenue. Tapia gave the deputies permission to search her van. The 3

deputies located a large flat screen television and a blue bag containing a computer monitor

and other electrical devices inside the van.

{¶ 4} Murphy admitted that he had placed the television and the blue bag in Tapia’s

van. Murphy stated that the television previously belonged to his brother, Frankie.

Murphy stated that he had taken the television in payment for a car. Murphy did not

provide an explanation for the items contained in the blue bag. Murphy insisted that the

deputies travel to Frankie’s residence located at 1029 Wendell Avenue in order to verify his

story.

{¶ 5} Upon their arrival at 1029 Wendell Avenue, the deputies spoke with the

resident of the house, Brendian Morris, who explained that Frankie had moved away

approximately two weeks earlier and left nothing behind. The deputies discovered a Dell

tower computer and an HP printer in the grass on the side of the house. Morris stated that

he did not recognize the items taken from Tapia’s van nor the computer and printer found on

the side of the house. Upon inspection, a detective noticed that the computer tower had a

repair tag on the side ostensibly bearing the name and address of the owner. The detective

sent the deputies to the address on the computer, 1030 Grissom Avenue. The deputies

discovered that the Grissom Avenue residence had been broken into and that items had been

removed. Many of the items recovered from Murphy were found to have been stolen from

the residence. Additionally, Murphy’s shoes matched footprints left at the scene, and the

backyard of the Grissom Avenue residence connected to the backyard of the home where

Murphy initially claimed that his brother lived.

{¶ 6} On May 10, 2010, Murphy was indicted for two counts of burglary, in 4

violation of R.C. 2911.12(A)(1) and (4), and one count of breaking and entering, in violation

of R.C. 2911.13(A). At his arraignment on May 17, 2010, Murphy pled not guilty to all

counts in the indictment. Murphy filed a motion to suppress regarding the statements he

made to the deputies. Murphy later withdrew the motion after the parties negotiated a plea

agreement wherein Murphy agreed to plead guilty to one count of breaking and entering, in

violation of R.C. 2911.13(A), a felony of the fifth degree, and one count of burglary, in

violation of R.C. 2911.12(A)(3), a felony of the third degree. In return, the State agreed to

recommend that Murphy be sentenced to community control and in-patient drug treatment at

West Central. The plea hearing occurred on June 15, 2010.

{¶ 7} At the sentencing hearing held on July 12, 2010, however, the trial court did

not follow the State’s recommendation regarding in-patient treatment at West Central.

Murphy was sentenced to one year for breaking and entering, and four years for burglary, the

sentences to run consecutively for an aggregate sentence of five years in prison.

{¶ 8} It is from this judgment that Murphy now appeals.

II

{¶ 9} Murphy’s first assignment of error is as follows:

{¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING

APPELLANT’S SENTENCE.”

{¶ 11} In his first assignment, Murphy contends that his sentence was improper

because the trial court failed to consider R.C. 2929.11 and R.C. 2929.12. Specifically,

Murphy argues that the trial court failed to affirmatively address the relevant sentencing

statutes during the dispositional hearing. While noting that the trial court did, in fact, 5

discuss his criminal history and prior drug treatment, Murphy asserts that the trial court

“should be, at minimum, required to mention its consideration of these statutes on the

record.” In the alternative, Murphy argues that the trial court abused its discretion when it

considered improper factors in determining his sentence.

{¶ 12} “The overriding purposes of felony sentencing are to protect the public from

future

{¶ 13} crime by the offender and others and to punish the offender. To achieve

those purposes, the sentencing court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender, and making

restitution to the victim of the offense.” R.C. 2929.11(A). A court that imposes a sentence

for a felony has discretion to determine the most effective way to comply with the purposes

and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12(A). “Although

[State v.] Foster [

,

] eliminated judicial fact-finding, courts

have not been relieved of the obligation to consider the overriding purposes of felony

sentencing, the seriousness and recidivism factors, or the other relevant considerations set

forth in R.C. 2929.11, 2929.12, and 2929.13.” State v. Hairston,

,

, ¶ 25.

{¶ 14} We review a felony sentence using a two-step procedure. State v. Kalish,

,

, ¶ 4. “The first step is to ‘examine the sentencing court’s

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.’” State v. Stevens,

,

, quoting Kalish at ¶ 4. “If this step is satisfied, the 6

second step requires that the trial court’s decision be ‘reviewed under an abuse-of-discretion

standard.’” Id. Generally, abuse of discretion is an “appellate court’s standard for

reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or

unsupported by the evidence.” State v. Money, Clark App. No. 2009CA119,

, ¶13 (internal citations omitted).

{¶ 15} As we recently explained in State v. Watkins,

,

:

{¶ 16} “Sentencing errors assigned regarding the trial court’s application of

R.C. 2929.11 and 2929.12 are reversible or modifiable only upon a finding by clear

and convincing evidence that the sentence is contrary to law. State v. Hawkins,

Greene App. No. 06CA79, ¶8. See, also, State v. Bowshier, Clark App No.

08-CA-58,

, ¶6, citing State v. Kalish,

,

; State v. Mathis,

,

. ‘Contrary to

law means’ that a sentencing decision manifestly ignores an issue or factor which a

statute requires a court to consider. Hawkins, supra, at ¶8, citing State v. Lofton,

Montgomery App. No. 19852,

.

{¶ 17} “When a trial court imposes a sentence that falls within the applicable

statutory range, the court is required to consider the purposes and principles set

forth in R.C. 2929.11, as well as the recidivism factors enumerated in R.C. 2929.12.

Hawkins, supra, at ¶8, citing

However, the court need not make

any specific findings in order to demonstrate its consideration of those factors.

citing State v. Arnett,

,

; State v. Foster,

,

, ¶42.” 7

{¶ 18} In the instant case, it is undisputed that the trial court did not

specifically mention either R.C. 2929.11 or R.C. 2929.12 at the sentencing hearing.

The court, however, did reference both statutes in its judgment entry. A trial court

speaks through its journal entries. State v. Brooke,

,

, ¶47, citation omitted. In its judgment entry, the trial court stated

as follows:

{¶ 19} “The Court considered the record, oral statements of counsel, the

defendant’s statement, the pre-sentence investigation report, the principles and

purposes of sentencing under Ohio Revised Code Section 2929.11, and has

balanced the seriousness and recidivism factors [set forth in] Ohio Revised Code

Section 2929.12.”

{¶ 20} Because the trial court affirmatively stated in its judgment entry that it

considered the factors set out in both R.C. 2929.11 and R.C. 2929.12 in imposing

Murphy’s sentence, that sentence is not contrary to law. Watkins,

.

{¶ 21} Having concluded that Murphy’s sentence is not contrary to law, we

must now review his sentence under an abuse of discretion standard.

.

Murphy asserts that certain statements made by the trial court establish that the

court considered improper factors when it ignored the recommendation of the State

and sentenced him to five years in prison. The trial court abuses its discretion

when it considers an improper factor in its sentencing analysis. State v. Davis,

Washington App. No. 09CA28,

.

{¶ 22} R.C. 2929.12(A) mandates that, in exercising its “discretion, the court 8

shall consider the factors set forth in divisions (B) and (C) of this section relating to

the seriousness of the conduct and the factors provided in divisions (D) and (E) of

this section relating to the likelihood of the offender’s recidivism and, in addition,

may consider any other factors that are relevant to addressing those purposes and

principles of sentencing.” Accordingly, the trial court had discretion to consider

additional factors, but only if those factors are relevant to the proceedings.

{¶ 23} Murphy asserts that the following statements made by the trial court at

his disposition clearly establish that the trial court considered improper factors when

it sentenced him:

{¶ 24} “The Court: All right. Well, when I took your plea on June15th, and I

knew that the State would be recommending community control with West Central,

I did have some reservations, seeing that one of the offenses was a burglary, a

felony of the third degree.

{¶ 25} “But I was committed to keeping an open mind and waiting until the

pre-sentence report came back. I have to tell you that the pre-sentence report has

not helped you.

{¶ 26} “I’m not even getting to the offenses yet here, but just looking at your

life situation here, you quit high school in the ninth grade. You have two kids. It

doesn’t appear that you’re paying any child support?

{¶ 27} “Murphy: Not very much, sir.

{¶ 28} “The Court: You don’t support them so I bet the mom of your kids gets

some kind of assistance, which means that all of us here in the courtroom are

paying to support your children. ***. 9

{¶ 29} “***

{¶ 30} “So, in summary, you have two kids you are not supporting so the

community is supporting them.

{¶ 31} “And then instead of saying ‘Thank you,’ to the community for

supporting your kids, you’re going out and burglarizing homes and breaking into

businesses.

{¶ 32} “And then when you get caught, you’re coming into the courtroom

asking for help. Well, it’s not my job to help you. It’s my job to punish you.”

(Emphasis added).

{¶ 33} It is vital to avoid both the reality and “perception that no clear

standards are being applied, and that the rule of law is imperiled by sentences

imposed for no discernible reason other than the subjective reactions of the

sentencing judge.” State v. Nichols, Clark App. No. 2010 CA 60,

,

quoting Harmelin v. Michigan (1991),

,

,

. This record establishes that the trial court improperly considered

Murphy’s limited ability to pay child support, as well as assumed and irrelevant facts

regarding his children’s receipt of “assistance” in weighing the appropriate

sentence. The trial court’s reliance on these factors was clearly improper. The

trial court’s apparent indignation over its assumption that Murphy’s children

received “some kind of assistance” and its resultant impact upon the community

was an improper factor upon which to rely when fashioning the appropriate

sentence. “Even though it has discretion in choosing an appropriate sentence,

when a court considers an improper sentencing factor, it has committed an abuse 10

of discretion.” State v. Davis, Washington App. No. 09CA28,

.

Indeed, the trial court had the discretion to reject the sentencing recommendation

of the State; however, the court abused its discretion when it emphasized Murphy’s

limited financial ability to support his children and the impact upon the community of

paying some kind of assistance when deciding the proper term of imprisonment.

{¶ 34} Additionally, although R.C. 2929.11(A) states that the overriding

purposes of felony sentencing is to protect the public from future crime by the

offender and others and to punish the offender, the trial court seems to have

ignored the fact that, in order to achieve those purposes, it was required to

consider, among other things, rehabilitating the offender. State v. Nichols, Clark

App. No. 2010 CA 60,

. “[T]he sentencing judge [should] consider

every convicted person as an individual and every case as a unique study in the

human failings that sometimes mitigate, sometimes magnify, the crime and the

punishment to ensue.” Pepper v. United States (2011), U.S. ,

,

, citing Koon v. United States (1996),

,

,

. Upon review, we conclude that the trial

court abused its discretion when it sentenced Murphy by relying on improper factors

which had no bearing upon the offenses to which he pled guilty.

{¶ 35} We also note that the trial court made the following statement before

announcing Murphy’s sentence:

{¶ 36} “The Court: While the State is recommending community control

pursuant to their agreement with you, I’m assuming that the State wasn’t aware of 11

your criminal record.” (Emphasis added).

{¶ 37} This declaration by the trial court only serves to further highlight the

inherently presumptive and speculative nature of its reasoning process when it

decided to reject the State’s recommendation and sentence Murphy to five years in

prison.1 There is no evidence in the record which even remotely suggests that the

State was unaware of Murphy’s criminal record, thus it was improper for the trial

court to assume such. Rather than simply assuming that the State was ignorant of

Murphy’s prior record, the trial court could have simply questioned the prosecutor in

that regard.

{¶ 38} Murphy’s first assignment of error is sustained.

III

{¶ 39} Murphy’s second assignment of error is as follows:

{¶ 40} “THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEA

AS THE PLEA COLLOQUY DID NOT COMPORT WITH CRIM.R.11 BECAUSE

APPELLANT NEVER ORALLY TENDERED A GUILTY PLEA.”

{¶ 41} In his second assignment, Murphy argues that the trial court erred

when it accepted his guilty pleas because he did not orally tender the pleas during

the hearing. The tendering of a plea of guilty has substantial consequences to a

criminal defendant. State v. Singleton,

,

. In

order to effectuate the tendering of a guilty plea, a criminal defendant must do so

1 We note that the pre-sentence investigation report does not reveal that Murphy’s children received assistance of any kind. However, even if such a fact had been established, it is wholly immaterial and irrelevant to disposition on these offenses. 12

by either signing a writing reflecting an express plea, or orally, either by saying

affirmatively that he is pleading “guilty” or by responding affirmatively to the trial

court’s question “are you pleading guilty,” phrased in the present tense, indicative

mood. See

{¶ 42} We note that the record of the plea hearing contains the following

exchange between Murphy and the trial court:

{¶ 43} “The Court: By pleading guilty[,] you would be giving up all of these

rights that we’ve gone over. Are you telling the Court that you want to give those

rights up and plead guilty to breaking and entering and burglary as a third degree

felony?

{¶ 44} “Murphy: Yes, sir.” (Emphasis added).

{¶ 45} In our view, this exchange affirmatively establishes that Murphy orally

tendered guilty pleas to the charges against him. Thus, we conclude that the trial

court complied with Crim .R. 11 and did not err when it accepted Murphy’s guilty

pleas.

{¶ 46} Murphy’s second assignment of error is overruled.

IV

{¶ 47} Murphy’s first assignment of error having been sustained, his

sentence is vacated, and this matter is remanded for re-sentencing in accordance

with this opinion.

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GRADY, P.J. and HALL, J., concur.

Copies mailed to: 13

Andrew R. Picek John Paul Rion Hon. Douglas M. Rastatter