Opinion
WD-20-079
10-29-2021
State of Ohio Appellee v. Timothy J. Perz Appellant
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Autumn D. Adams, for appellant.
Trial Court No. 2018CR0398
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
DECISION AND JUDGMENT
DUHART, J.
{¶ 1} Appellant, Timothy John Perz, appeals the judgment entered by the Wood County Court of Common Pleas on October 6, 2020, sentencing him to serve 18 months in prison on each of four counts of grand theft, with the sentences ordered to be served consecutively. For the reasons that follow, we affirm the judgment of the trial court.
Procedural History and Facts
{¶ 2} On November 16, 2017, appellant was indicted in case No. 2017-CR-0551, on a single count of grand theft, as a felony of the fourth degree. Appellant, a contractor who was hired to install five overhead garage doors for the city of Perrysburg, was accused of failing to complete the contracted work after having accepted payment from the city in the amount of $9,557.00. He was arraigned on that charge on December 20, 2017. He then requested and was ordered to be evaluated for intervention in lieu of conviction on February 13, 2018.
{¶ 3} On February 22, 2018, appellant was indicted in case No. 2018-CR-0093, on a single count of grand theft, as a felony of the fourth degree. Appellant, who had been hired to make residential home repairs, was accused of failing to complete the agreed-upon work after he accepted payments from his victims totaling $8,457.00. He was arraigned in that case on March 7, 2018. On April 30, 2018, the trial court allowed appellant to continue his pursuit of intervention in lieu of conviction and ordered an evaluation in both case Nos. 2017-CR-0551 and 2018-CR-0093. Appellant entered guilty pleas in both cases and was granted intervention in lieu of conviction, on June 8, 2018. Relevant terms of his intervention included: assessment for chemical and substance abuse treatment and successful completion of that program; mental health assessment and successful completion of any recommendation; abstention from the use of alcoholic beverages or illegal drugs; attendance at meetings for a twelve-step support program, such as Alcoholics Anonymous; acquisition of a sponsor; acquisition of employment; and repayment of restitution totaling $19,004.00, to be repaid at regular intervals.
{¶ 4} On August 16, 2018, appellant was indicted in a third case, case No. 2018-CR-0398, on two counts of grand theft, which were both felonies of the fourth degree. Appellant, who had been hired to tear out and replace a deck, was accused of failing to perform that job after he accepted payments from his victim totaling $8,830. (This conduct was alleged to have occurred in 2017, prior to the conduct alleged in case Nos. 2017-CR-0551 and 2018-CR-0093.) He was arraigned on the charges and, once again, intervention in lieu of conviction was considered by the trial court. Intervention in lieu of conviction was granted and appellant entered a guilty plea to the most recent charges. The terms of his intervention were the same as before, except that the restitution amount was increased to include the amount due pursuant to the most recent indictment. In addition, all three of appellant's cases were consolidated.
{¶ 5} On June 24, 2019, an intervention in lieu of conviction violation was issued, alleging that appellant had only made one restitution payment on January 30, in the amount of $350.00. A balance of $25,994.90 was said to remain. And on July 10, 2019, appellant tested positive for alcohol. At that point, appellant fled, and a warrant was issued. On September 18, 2019, appellant again tested positive for alcohol and, further, was said to have admitted to drinking alcohol on September 12, 2019, and on September 16, 2019.
{¶ 6} On September 27, 2019, appellant appeared for an intervention violation hearing, where he admitted to the aforementioned alcohol violations. Intervention in lieu of conviction was terminated, and appellant was found guilty of a total of four counts of grand theft. Appellant again fled and was subsequently found.
{¶ 7} At his sentencing proceeding, held on November 15, 2019, appellant was placed on community control for a period of five years. At that time, he was warned that if he violated the terms of his community control, he could be sentenced to prison for 18 months on each of his four counts and that those counts could be ordered to be served consecutively. The terms of his community control were essentially the same as those imposed for his intervention in lieu of conviction, with the added conditions that he complete the SEARCH program and the Intensive Supervision Program.
{¶ 8} On May 11, 2020, a community control violation was issued, alleging that on May 6, 2020, appellant admitted to consuming alcohol.
{¶ 9} On June 12, 2020, a community control violation hearing was held and appellant stipulated to the violation as outlined in the petition that was filed with the court. The court accepted his admission and found, on the record, that appellant had violated the terms of his community control. New conditions were set, including the condition that appellant was to start making restitution payments in the amount of $300 per month.
{¶ 10} Appellant continued to violate the terms of his community control and, once again, he admitted to his violations. On October 2, 2020, the trial court -- noting appellant's earlier violations, together with the fact that appellant had just days before pleaded guilty in Bowling Green Municipal Court to having recently passed a bad check -- imposed consecutive 18-month prison terms.
Assignment of Error
{¶ 11} On appeal, appellant asserts the following assignments of error:
I. The Trial Court abused its discretion in imposing consecutive sentences because it incorrectly found Appellant's property offenses made him a danger to society, his alcohol consumption was out of control and his pending charge in Fulton County was treated as a conviction.
II. The Trial Court failed to follow the principles and purposes of sentencing.
Analysis
{¶ 12} Appellant argues in his first assignment of error that the court abused its discretion in imposing consecutive sentences. Appellate review of felony sentences is governed by R.C. 2953.08(G)(2). State v. Mockensturm, 6th Dist. Wood Nos. WD-20-007, WD-20-008, 2021-Ohio-881, ¶12. "Pursuant to that statute, an appellate court does not review the sentencing court's decision for an abuse of discretion." State v. Motz, 12th Dist. No. CA2019-10-109, 2020-Ohio-4356, 158 N.E.3d 641, ¶ 37. Instead, an appellate court may modify or vacate a disputed sentence on appeal only if it clearly and convincingly finds that: (1) the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, as set forth in R.C. 2953.08(G)(2)(a); or (2) "the sentence is otherwise contrary to law," as set forth in R.C. 2953.08(G)(2)(b). See State v. Gonzalez, 6th Dist. Wood Nos. WD-19-068, WD-19-069, 2020-Ohio-4495, ¶ 42; R.C. 2953.08(G)(2). It is the appellant's burden to identify clear and convincing evidence on the record that the sentence was erroneously imposed. Mockensturm, at ¶ 13.
{¶ 13} R.C. 2929.14(C)(4) provides that in order to impose a consecutive sentence, a trial court must engage in the following three-part analysis:
First, the trial court must find the sentence is necessary to protect the public from future crime or to punish the offender. Second, the trial court must find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Third, the trial court must find that at least one of the following applies: (a) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a prior offense; (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 offenses 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; or (c)
the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Id. at R.C. 2929.14(C)(4)(a)-(c).State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-1000, ¶ 11. In imposing consecutive sentences, a trial court need not recite any "magic" or "talismanic" words, "provided it is 'clear from the record that the trial court engaged in the appropriate analysis.'" Id. at ¶ 12, citing State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12.
{¶ 14} In the instant case, the trial court engaged in the appropriate analysis and made the requisite findings in support of consecutive sentences both at the dispositional hearing and in its sentencing entry. At the dispositional hearing, the court, after recounting the myriad of opportunities that appellant had systematically squandered, stated the following:
There is no other thing that I can do with you than impose eighteen months on Count One, eighteen months on Count Two, eighteen months on Count Three, and eighteen months on Count Four, and that you serve them consecutively because there are multiple offenses, four offenses, to protect the public from future crime because all you do is pass bad checks and take money from people without doing the work, and to punish you because you've never tried to pay restitution and because you absconded while you were on community control.
This is not disproportionate. They are not disproportionate because of the seriousness of your offense. You took over $28,000 with no desire to ever pay it back. You continue to consume alcohol. And you are a danger to the public because of the manner and form in which you act.
Finally, this harm is so great that at least two of the multiple offenses were committed as part of one or more courses of conduct and the impact of this is so great that no single prison term for these offenses adequately reflect the seriousness of your conduct. And your criminal history seems to indicate that consecutive sentences are definitely necessary.
Similar, but abbreviated, sentiments are expressed in the trial court's judgment entry sending appellant to prison. Upon our reading of the dispositional hearing transcript, we disagree with appellant's statement that the trial court "seemed to take great issue with" a criminal charge that had been recently filed against appellant in Fulton County. In fact, the trial court mentioned the pending charge only briefly, in connection with the court's description of appellant's ongoing and unchanging course of conduct.
{¶ 15} Upon review of the foregoing, we find the trial courts findings to be both sufficient under R.C. 2929.14(C)(4) and fully supported by the record. Because the trial court's imposition of consecutive sentences was proper and in accordance with the applicable law, appellant's first assignment of error is found not well-taken.
{¶ 16} Appellant argues in his second assignment of error that his sentence should be vacated on the grounds that the trial court failed to comply with the principles and purposes of sentencing under R.C. 2929.11 and improperly weighed various factors that it was required to consider under R.C. 2929.12.
{¶ 17} In considering this assignment of error, we note at the outset the Ohio Supreme Court's holding in State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16, that "[b]ecause R.C. 2953.08(G)(2)(a) specifically mentions a sentencing judge's findings made under R.C. 1919.14(C)(4) as falling within a court of appeals' review, the General Assembly plainly intended R.C. 2953.08(G)(2)(a) to be the exclusive means of appellate review of consecutive sentences." (Emphasis added.) R.C. 2929.11 and 2929.12, on the other hand, "apply only to individual sentences." Id. at ¶ 17 (emphasis sic). Thus, "an appellate court's review of consecutive sentences is limited to challenges of a trial court's findings under R.C. 2929.14(C)(4)." State v. Adams, 6th Dist. Wood Nos. WD-21-017, WD-21-018, 2021-Ohio-2862, ¶ 8.
{¶ 18} We additionally note that in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42, the Ohio Supreme Court held that R.C. 2953, 08(G)(2) does not allow an "appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12." Applying Jones, this court has held that "assigning error to the trial court's imposition of sentence as contrary to law based solely on its consideration of R.C. 2929.11 and 2929.12 is no longer grounds for this court to find reversible error." State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13 (emphasis added).
{¶ 19} Here, appellant argues that the trial court erred when it imposed consecutive and maximum terms for each count, because those terms did not satisfy the purposes of felony sentencing under R.C. 2929.11 and because the trial court improperly weighed mitigating factors set forth in R.C. 2929.12. As indicated above, appellant's consecutive sentences were found to be proper under R.C. 2929.14(C)(4), the exclusive procedural mechanism under which offenders can appeal consecutive sentences. See Gwynne at ¶ 16. To the extent that appellant challenges the individual sentences, we are precluded from reviewing the trial court's consideration of R.C. 2929.11 and R.C. 2929.12 factors when determining the appropriateness of a sentence. See Orzechowski at ¶ 13. Accordingly, appellant's second assignment of error is found not well-taken.
{¶ 20} For all of the foregoing reasons, we affirm the judgment of the Wood County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.LocApp.R. 4.
Christine E. Mayle, J. Gene A. Zmuda, P.J. Myron C. Duhart, J. CONCUR.