[Cite as State v. Daniel,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11-COA-047 : : DUSTIN A. DANIEL : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Ashland County Court of Common Pleas Case No. 11-CRI-050

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 27, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAMONA FRANCESCONI ROGERS TIMOTHY E. POTTS Ashland County Prosecutor 10 E. Main Street Ashland, Ohio 44805 Ashland, Ohio 44805

BY: PAUL T. LANGE Assistant Prosecuting Attorney 110 Cottage Street, Third Floor Ashland, Ohio 44805 [Cite as State v. Daniel,

.]

Edwards, J.

{¶1} Appellant, Dustin A. Daniel, appeals a judgment of the Ashland County

Common Pleas Court convicting him of one count of having weapons while under

disability (R.C. 2923.13(A)(3)) and two counts of possession of cocaine (R.C.

2925.11(A)) and sentencing him to an aggregate term of incarceration of fifty-four

months. Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On May 20, 2011, Ashland police officers stopped appellant’s car. There

was an active warrant for appellant’s arrest. Appellant got out of the car and ran away

from the police. Appellant threw his hat while fleeing, and officers found cocaine inside

the hat.

{¶3} Appellant was later located outside a residence. Appellant again

attempted to flee. Officers used a taser to stop appellant. After appellant was taken to

the ground, appellant broke his cell phone. Near appellant, officers found a five-dollar

bill which also contained cocaine.

{¶4} During the course of the investigation, officers discovered that appellant

had recently been in possession of a firearm, and after interviewing several witnesses

officers retrieved the firearm.

{¶5} Appellant was charged by bill of information with one count of having a

weapon under disability and two counts of possession of cocaine. He pleaded guilty to

all three charges. The trial court sentenced him to thirty-six months incarceration for

having a weapon under disability and nine months incarceration for each count of Ashland County App. Case No. 11-COA-047 3

possession of cocaine, with all sentences to run consecutively. Appellant assigns three

errors on appeal:

{¶6} “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT/APPELLANT

PURSUANT TO OHIO REVISED CODE SECTION 2929.14(C)(4); SAID

CONSECUTIVE SENTENCES EXCEEDED THE MAXIMUM PRISON TERM

ALLOWED BY OHIO REVISED CODE SECTION 2929.14(A)(3)(b), AND WERE

CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF SAID

COURT’S DISCRETION.

{¶7} “II. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED THE MAXIMUM PRISON TERM UPON DEFENDANT/APPELLANT

PURSUANT TO OHIO REVISED CODE 2929.14(A)(3)(b); THE IMPOSITION OF SAID

MAXIMUM PRISON TERM WAS CLEARLY AND CONVINCINGLY CONTRARY TO

LAW AND/OR AN ABUSE OF SAID COURT’S DISCRETION.

{¶8} “III. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, IMPOSED AN UNNECESSARY BURDEN ON STATE

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED

CODE SECTION 2929.13(A).”

I

{¶9} In his first assignment of error, appellant argues that the court erred in

imposing consecutive sentences exceeding the maximum prison term allowed for the

most serious offense of which he was convicted. Ashland County App. Case No. 11-COA-047 4

{¶10} R.C. 2953.08(C)(1) provides:

{¶11} “(C)(1) In addition to the right to appeal a sentence granted under division

(A) or (B) of this section, a defendant who is convicted of or pleads guilty to a felony

may seek leave to appeal a sentence imposed upon the defendant on the basis that the

sentencing judge has imposed consecutive sentences under division (C)(3) of section

2929.14 of the Revised Code and that the consecutive sentences exceed the maximum

prison term allowed by division (A) of that section for the most serious offense of which

the defendant was convicted. Upon the filing of a motion under this division, the court of

appeals may grant leave to appeal the sentence if the court determines that the

allegation included as the basis of the motion is true.”

{¶12} Appellant failed to seek leave to appeal his sentence on the basis that the

consecutive sentences exceed the maximum term allowed for the most serious offense

of which he was convicted.

{¶13} However, pursuant to App. R. 5(D)(2), where a criminal defendant has

filed a notice of appeal pursuant to App. R. 4, the defendant may elect to incorporate in

his brief an assignment of error pursuant to R.C. 2953.08(C), and this assignment shall

be deemed a timely motion for leave to appeal. We, therefore, grant leave to appeal on

this issue.

{¶14} Appellant argues that consecutive sentences were contrary to law and an

abuse of discretion because he expressed remorse for his actions.

{¶15} R.C. 2929.14(C)(4) provides:

{¶16} “(4) 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 Ashland County App. Case No. 11-COA-047 5

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, and if the court also finds any of the following:

{¶17} “(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

{¶18} “(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.

{¶19} “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

{¶20} The trial court found that consecutive sentences were necessary to protect

the public from future crime due to appellant’s history of criminal conduct. The record

reflects that appellant had an extensive criminal history as both a juvenile and an adult.

He had previously served a prison term. At the time he was evaluated for the

presentence investigation, appellant showed no remorse for his crimes and had failed to

follow through on substance abuse treatment. The circumstances of the offense

demonstrated that he fled from police and there was an active warrant out for his arrest Ashland County App. Case No. 11-COA-047 6

at the time of the offenses. Further, he was on postrelease control for an earlier

offense at the time of the instant offense.

{¶21} The trial court did not err in sentencing appellant to consecutive sentences

based on his past history of criminal conduct.

{¶22} The first assignment of error is overruled.

II

{¶23} Appellant argues that the trial court erred in imposing the statutory

maximum of 36 months incarceration for having a weapon under disability, a third

degree felony.

{¶24} R.C. 2953.08(A) provides an appeal as of right on this basis:

{¶25} “(A) In addition to any other right to appeal and except as provided in

division (D) of this section, a defendant who is convicted of or pleads guilty to a felony

may appeal as a matter of right the sentence imposed upon the defendant on one of the

following grounds:

{¶26} “(1) The sentence consisted of or included the maximum prison term

allowed for the offense by division (A) of section 2929.14 or section 2929.142 of the

Revised Code, the maximum prison term was not required for the offense pursuant to

Chapter 2925. or any other provision of the Revised Code, and the court imposed the

sentence under one of the following circumstances:

{¶27} “(a) The sentence was imposed for only one offense.

{¶28} “(b) The sentence was imposed for two or more offenses arising out of a

single incident, and the court imposed the maximum prison term for the offense of the

highest degree.” Ashland County App. Case No. 11-COA-047 7

{¶29} Appellant argues that the sentence was contrary to law and that the trial

court abused its discretion in the sentence because he demonstrated remorse for his

actions. Appellant argues that he is not likely to commit future crimes.

{¶30} R.C. 2929.12 sets forth specific factors to be considered by the court in

determining the likelihood of recidivism:

{¶31} “(D) 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:

{¶32} “(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 2929.16, 2929.17, or 2929.18 of the Revised Code, or under post-release

control pursuant to section 2967.28 or any other provision of the Revised Code for an

earlier offense or had been unfavorably terminated from post-release control for a prior

offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised

Code.

{¶33} “(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.

{¶34} “(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. Ashland County App. Case No. 11-COA-047 8

{¶35} “(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.

{¶36} “(5) The offender shows no genuine remorse for the offense.

{¶37} “(E) 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:

{¶38} “(1) Prior to committing the offense, the offender had not been adjudicated

a delinquent child.

{¶39} “(2) Prior to committing the offense, the offender had not been convicted

of or pleaded guilty to a criminal offense.

{¶40} “(3) Prior to committing the offense, the offender had led a law-abiding life

for a significant number of years.

{¶41} “(4) The offense was committed under circumstances not likely to recur.

{¶42} “(5) The offender shows genuine remorse for the offense.”

{¶43} Appellant has not demonstrated that the court erred in sentencing

appellant to the maximum sentence. The court stated in its judgment that it fully

considered the provisions of O.R.C. Chapter 2929. The court found that appellant was

not amenable to community control sanctions. The court found that appellant previously

served a prison term and the shortest prison term would demean the seriousness of

appellant’s conduct and not adequately protect the public from future crimes committed

by appellant. Ashland County App. Case No. 11-COA-047 9

{¶44} While appellant expressed to the court during the sentencing hearing that

he was sorry for his actions, the presentence investigation report filed in the instant

case reflects that appellant has an extensive criminal history, both as a juvenile and an

adult. He had previously served a prison term. At the time he was evaluated for the

presentence investigation, appellant showed no remorse for his crimes and had failed to

follow through on substance abuse treatment. The circumstances of the offense

demonstrated that he fled from police and there was an active warrant out for his arrest

at the time of the offenses. The record reflects that appellant demonstrated limited

success while on supervision and historically has failed to report to meetings with his

probation officer. Further, he was on postrelease control for an earlier offense at the

time of the instant offense.

{¶45} The second assignment of error is overruled.

III

{¶46} Appellant argues that a term of incarceration in this case is an

unnecessary burden on state and local resources pursuant to R.C. 2929.11(A), which

provides:

{¶47} “(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources. To achieve those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime, Ashland County App. Case No. 11-COA-047 10

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.”

{¶48} As we noted in State v. Ferenbaugh, 5th Dist. No.

, 2004–Ohio–

977 at paragraph 7, “[t]he very language of the cited statute grants trial courts discretion

to impose sentences. Nowhere within the statute is there any guideline for what an

‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. No. 2008–COA–036,

2009–Ohio–3105, this Court reviewed a similar claim. We found that, although burdens

on State resources may be a relevant sentencing criteria, state law does not require trial

courts to elevate resource conservation above seriousness and recidivism factors,

Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No. 97CA0019,

(October 10, 1997).

{¶49} Appellant has not demonstrated that a term of incarceration in the instant

case is an unnecessary burden on state and local resources. While appellant

expressed to the court during the sentencing hearing that he was sorry for his actions,

the presentence investigation report filed in the instant case reflects that appellant has

an extensive criminal history, both as a juvenile and an adult. He had previously served

a prison term. At the time he was evaluated for the presentence investigation, appellant

showed no remorse for his crimes and had failed to follow through on substance abuse

treatment. The circumstances of the offense demonstrated that he fled from police and

there was an active warrant out for his arrest at the time of the offenses. The record

reflects that appellant demonstrated limited success while on supervision and

historically has failed to report to meetings with his probation officer. Further, he was on

postrelease control for an earlier offense at the time of the instant offense. Ashland County App. Case No. 11-COA-047 11

{¶50} The third assignment of error is overruled.

{¶51} The judgment of the Ashland County Common Pleas Court is affirmed.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/d0327 [Cite as State v. Daniel,

.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : DUSTIN A. DANIEL : : Defendant-Appellant : CASE NO. 11-COA-047

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed

to appellant.

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JUDGES