[Cite as State v. Maxey,
2016-Ohio-1264.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26854
:
v. : T.C. NO. 15CR1480
:
GREGORY L. MAXEY : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ____25th___ day of _____March_____, 2016.
...........
CARLEY J. INGRAM, Atty, Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
PATRICK A. FLANAGAN, Atty. Reg. No. 0017658, 15 W. Fourth Street, Suite 100,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Gregory L. Maxey,
filed October 5, 2015. Maxey appeals from his September 30, 2015 Judgment Entry of
Conviction, issued following his pleas of guilty to two counts of theft (by deception), both
misdemeanors of the first degree. Maxey was sentenced to community control
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sanctions, and he was ordered to serve 180 days local jail time to commence within 10
days of disposition. The court further ordered Maxey to pay restitution in the following
amounts: $1,000.00 each to Savanah Cox and Diona Tolbert, and $2,701.75 to Latanya
Clark and Katrina Leak. On October 9, 2015, this Court stayed the imposition of the
requirement that Maxey serve 180 days local jail time pending this appeal. We hereby
affirm the judgment of the trial court.
{¶ 2} Maxey was indicted on June 30, 2015 on two counts of theft (by deception)
($1,000.00 or more but less than $7,500.00), in violation of R.C. 2913.02(A)(3), felonies
of the fifth degree. At his September 1, 2015 plea hearing, the prosecutor indicated to the
court that defense counsel provided a receipt from the Montgomery County Adult
Probation Department indicating that restitution had been paid in full by Maxey as
indicated above, and that in exchange the State was willing to accept Maxey’s offer to
plead guilty to two counts of first degree misdemeanor theft, the lesser included offenses
of the indicted charges. The following exchange occurred:
THE COURT: … Sir, in this case you are pleading guilty to two
lesser included counts of misdemeanor theft, both misdemeanors of the 1st
degree. Do you understand that as a result of each of those pleas, the
Court could sentence you to financial sanctions including a fine up to $1,000
on each count and court costs and other financial sanctions? However,
the State has indicated the restitution is paid in full. The Court could also
sentence you to a jail term of up to six months on each count for a total jail
term of 12 months if appropriate. The Court could also sentence you to
community control sanctions for a period of up to five years, which may
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include community residential sanctions including up to six months of local
jail time and other non-residential sanctions. For violations of community
control sanctions, you could be required to serve a jail term of up to 12
months on each count. Do you understand those potential penalties?
THE DEFENDANT: Yes, ma’am.
THE COURT: Sir, you understand there’s no agreement as to your
sentence. I’m going to review a presentence investigation and determine
your sentence when you come back in four weeks on September 29th. …
…
MR. FLANAGAN: The Prosecutor has agreed to probation.
THE COURT: Mr. Marshall?
MR. MARSHALL: That’s correct, Your Honor.
…
MR. MARSHALL: Although just for the record, probation can
encompass local jail time.
THE COURT: That’s true. Do you understand, sir, that the Court
will determine that sentence when you come back on September 29th?
THE DEFENDANT: Yes, ma’am.
…
{¶ 3} At Maxey’s September 29, 2015 sentencing hearing, the following exchange
occurred in part:
THE COURT: Sir, you pled guilty to two counts of theft, those
misdemeanors of the first degree. Is there anything you want to tell me
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before sentencing?
MR. FLANAGAN: The only thing I would like to say is, Judge, these
were two contract disputes. He sold cars to people. The people turned
on him. They got the police to get the prosecutor to file these charges.
We took the easiest way out. He’s made restitution on these.
Plus, I want to point out, the prosecutor asked us to pay another $240
or something to an old case in Miamisburg. And we did pay that.
THE COURT: Anything you want to add, sir?
THE DEFENDANT: No, Your Honor.
THE COURT: I understand there was an agreed community
control. Is there any agreement about local jail time?
MR. MARSHALL: No, Your Honor. We just simply discussed that
the Defendant would receive community control as a result of his guilty
pleas to the two lesser included offenses.
MR. FLANAGAN: My understanding, Your Honor, is we’re pleading
guilty, making restitution and he was going to get probation.
THE COURT: He is, but he can get community control. I’m really
concerned about the suggestion that these are not criminal matters that
they’re just contract disputes.
Let’s just go through your felony record maybe for a second. The
13 other felonies that you have, most of which are theft related. I’ll just
highlight the ones that are theft related. Passing bad checks in ’82; arson
for hire in ’84; theft in ’85; grand theft in ’87; defrauding a livery in ’93; theft
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in ’93; defrauding a livery in ’93; unauthorized use or access of devices and
aiding and abetting in ’93 - - you got 30 months in the Federal Bureau of
Prisons then - - ’03, a bunch of bad checks, grand theft, theft; ’05, failure to
deliver title of a motor vehicle; ’05, theft by deception, theft of an elderly
person; ’05, theft. Those are just your felonies.
Then we’ve got all the theft-related misdemeanors.
This is not a civil dispute. This is an absolute effort to defraud
individuals and they went to the police because you weren’t responding.
This is not a civil dispute, sir.
After considering the purposes and principles of sentencing and the
seriousness and recidivism factors, I’m going to sentence you to community
control for a period not to exceed five years with the following sanctions.
…
I’m going to sentence you to six months in the Montgomery County
Jail. You’ll have ten days to start serving that sentence.
I don’t think that any other term of supervision would be meaningful
in any respect.
…
MR. FLANAGAN: Did you say ten days in jail?
THE COURT: No. Six months in jail starting within ten days.
And the reason is, sir, is that you clearly don’t accept any
responsibility for your behavior.
…
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I’m just appalled by your suggestion this morning that these aren’t
criminal in nature.
…
Sir, your suggestion is just appalling. That six months is a total of 180
days as a sanction on community control. You have two counts. Once
that’s completed, your community control is going to be terminated.
There would be no reason to have you on community control. I don’t
see any possibility that you would ever comply with any additional term of
community control other than your local jail time.
{¶ 4} As the State asserts, Maxey’s brief does not comply with the Appellate rules
in that it does not assign a specific error for our review, present a statement of issues for
our review, or cite to any legal authority1. App.R.16. We construe Maxey’s brief to
argue that the trial court erred in sentencing him to local jail time.
{¶ 5} R.C. 2929.25 governs misdemeanor community control sanctions and
provides:
(A)(1) Except as provided in sections 2929.22 and 2929.23 of the
Revised Code or when a jail term is required by law, in sentencing an
offender for a misdemeanor, … the sentencing court may do either of the
following:
(a) Directly impose a sentence that consists of one or more
community control sanctions authorized by section 2929.26, 2929.27, or
1
Maxey’s Table of Contents provides: “Because the appellants (sic) argument is based on the actual
record and the comments of the Assistant Prosecutor on the record, there is no table of authorities.”
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2929.28 of the Revised Code. The court may impose any other conditions
of release under a community control sanction that the court considers
appropriate. If the court imposes a jail term upon the offender, the court
may impose any community control sanction or combination of community
control sanctions in addition to the jail term.
(b) Impose a jail term under section 2929.24 of the Revised Code
from the range of jail terms authorized under that section for the offense,
suspend all or a portion of the jail term imposed, and place the offender
under a community control sanction or a combination of community control
sanctions authorized under section 2929.26, 2929.27, or 2929.28 of the
Revised Code.
R.C. 2929.24 (A)(1) provides that a trial court may impose a jail term of not more than
one hundred eighty days for a misdemeanor of the first degree.
{¶ 6} As this Court has previously noted:
When sentencing for a misdemeanor offense, a trial court is guided
by the “overriding purposes of misdemeanor sentencing,” which are to
protect the public from future crime by the offender and others and to punish
the offender. R.C. 2929.21(A); State v. Collins, 2d Dist. Greene No. 2012–
CA–2, 2012-Ohio-4969, ¶ 9. “To achieve those purposes, the sentencing
court [must] consider the impact of the offense upon the victim and the need
for changing the offender's behavior, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or the victim and the
public.” R.C. 2929.21(A). The sentence imposed must be “reasonably
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calculated to achieve the two overriding purposes of misdemeanor
sentencing …, commensurate with and not demeaning to the seriousness
of the offender's conduct and its impact upon the victim, and consistent with
sentences imposed for similar offenses committed by similar offenders.”
R.C. 2929.21(B); Collins at ¶ 9.
“A trial court is also required to consider the nature and
circumstances of the offense, whether there was a history of persistent
criminal activity or character that reveals a substantial risk of the offender
committing another offense, and numerous other factors related to the
offender and the offense. R.C. 2929.22(B). However, in misdemeanor
sentencing, there is no requirement that a trial court specifically state the
reasons for its sentence on the record.” (Citations omitted) Id. at ¶ 10. “If
the sentence imposed is within permissible statutory limits, a reviewing
court will presume that the trial court considered the sentencing factors in
R.C. 2929.22(B), absent a showing to the contrary.” State v. Johnson, [164
Ohio App.3d 792,]
2005-Ohio-6826, [
844 N.E.2d 372,] ¶ 9 [(2d Dist.)]. We
review misdemeanor sentences for an abuse of discretion. State v. Peagler,
2d Dist. Montgomery No. 24426, 2012-Ohio-737, ¶ 3.
State v. Fankle,
2015-Ohio-1581,
31 N.E.3d 1290, ¶ 17-18 (2d Dist.). “The term ‘abuse
of discretion’ has been defined as an attitude that is unreasonable, arbitrary or
unconscionable. Hufman v. Hair Surgeon, Inc.,
19 Ohio St.3d 83, 87,
482 N.E.2d 1248
(1985).” State v. Lee, 2d Dist. Champaign No. 2012-CA-16,
2013-Ohio-2233, ¶ 10.
{¶ 7} Maxey’s sentence is within the statutory range for a misdemeanor of the
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first degree. The record reflects that the trial court advised Maxey that it could impose
local jail time of up to six months on each count at his plea hearing, and Maxey indicated
his understanding of the court’s options in imposing sentence. Maxey’s lengthy criminal
history involving multiple theft related felony offenses was significant to the court.
Although Maxey made complete restitution, the agreement by the State to a disposition
of community control did not prevent the court from imposing local jail time, and Maxey
was informed of such. We conclude that an abuse of discretion is not demonstrated.
Accordingly, the judgment of the trial court is affirmed.
..........
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Carley J. Ingram
Patrick A. Flanagan
Hon. Mary Katherine Huffman
