[Cite as State v. Freeman, 2019-Ohio-669.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 14-18-16

        v.

RICHARD B. FREEMAN,                                    OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Union County Common Pleas Court
                            Trial Court No. 17CR0184

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                          Date of Decision: February 25, 2019




APPEARANCES:

        Perry R. Parsons for Appellant

        Raymond Kelly Hamilton for Appellee
Case No. 14-18-16


SHAW, J.

       {¶1} Defendant-appellant, Richard B. Freeman (“Freeman”), brings this

appeal from the August 21, 2018, judgment of the Union County Common Pleas

Court sentencing Freeman to eighteen months in prison after he was convicted in a

jury trial of Receiving Stolen Property in violation of R.C. 2913.51(A)/(C), a felony

of the fourth degree. On appeal, Freeman argues that the trial court erred by

imposing a maximum prison term on him, and that the trial court erred by failing to

give him jail-time credit in this matter.

                       Relevant Facts and Procedural History

       {¶2} On September 6, 2017, Freeman was indicted for Receiving Stolen

Property in violation of R.C. 2913.51(A)/(C), a felony of the fourth degree. It was

alleged that he received, retained or disposed of a 2013 Honda Civic, the property

of Germain Honda of Dublin (“Germain”), knowing or having reasonable cause to

believe that the property had been obtained through commission of a theft offense.

Freeman pled not guilty to the charge and his case proceeded to a jury trial on

August 20-21, 2018.

       {¶3} At trial, the State presented evidence that James Ferguson turned in his

leased 2013 Honda Civic to Germain in Dublin, Ohio, on July 14, 2017. The vehicle

was received and was placed in one of Germain’s lots, which spanned multiple

properties and over ten acres. There were hundreds of preowned vehicles in


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Germain’s lots. Germain officially purchased the 2013 Honda Civic at issue on July

17, 2017.

       {¶4} On July 18, 2017, Deputy Phipps of the Union County Sheriff’s

Department conducted a traffic stop involving Freeman, who was driving the same

2013 Honda Civic that had been turned into Germain days prior. The traffic stop

occurred between 1 and 2 a.m.

       {¶5} During the traffic stop, Freeman made a number of false statements

regarding whether he had a license and his social security number, making it

difficult for Deputy Phipps to initially identify him. Once Deputy Phipps finally

identified Freeman, he learned that Freeman did not have a license. The 2013 Honda

Civic was also not registered to Freeman. Freeman told Deputy Phipps that he was

borrowing it from a friend with the name “Miller,” though he could not provide

“Miller’s” contact information or a location that Deputy Phipps could contact

“Miller.”

       {¶6} Later that same day, Tim Gould, a pre-owned sales manager at Germain

was contacted by an officer who indicated that one of Germain’s vehicles, the 2013

Honda Civic, had been found being driven by Freeman. Gould testified that he then

checked and found that the 2013 Honda Civic was not on the lot as it was supposed

to be, and then he reported that it had been stolen. He indicated that at no time was

Freeman given permission to take the vehicle.


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        {¶7} Freeman spoke with the police on two subsequent occasions and still

could not provide the contact information of any individual who had purportedly

loaned him the vehicle.

        {¶8} The jury found Freeman guilty of Receiving Stolen Property as

indicted. His case then proceeded to sentencing, wherein the trial court noted that

Freeman had a criminal history dating back to 1969, with as many as fifteen felonies.

The convictions included a number of prior Receiving Stolen Property charges.

Based on his criminal history, the trial court sentenced Freeman to a maximum

eighteen month prison term.

        {¶9} A judgment entry memorializing Freeman’s sentence was filed August

21, 2018.1 It is from this judgment that Freeman appeals, asserting the following

assignments of error for our review.

                            Assignment of Error No. 1
        The trial court erred when it imposed a maximum sentence upon
        the Appellant for a felony of the fourth degree.

                           Assignment of Error No. 2
        The trial court erred when it failed to give the Appellant credit
        for jail time.

                                   First Assignment of Error

        {¶10} In Freeman’s first assignment of error, he argues that the trial court

erred by imposing a maximum sentence on him. Specifically, he argues that the


1
  This judgment entry was subsequently modified by an entry the following day, notifying Freeman of his
right to appeal.

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trial court only found one of the factors under R.C. 2929.12(B) indicating that

Freeman’s conduct was more serious than conduct normally constituting the

offense, and that was not sufficient to support a maximum prison term. Freeman

argues that community control was a more appropriate sanction than a maximum

prison term.

                                 Standard of Review

       {¶11} Revised Code 2953.08(G)(2) provides that when reviewing felony

sentences, a reviewing court may increase, reduce, or modify a sentence, or it may

vacate and remand the matter for resentencing, only if it clearly and convincingly

finds that either the record does not support the sentencing court’s statutory findings

or the sentence is contrary to law. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-

Ohio-3838, ¶ 10, citing State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-

99, ¶ 7.

                                       Analysis

       {¶12} “ ‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give

its reasons for imposing maximum or more than [a] minimum sentence[].’ ” State

v. Castle, 2nd Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v.

King, 2nd Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45. Nevertheless, when

exercising its sentencing discretion, a trial court must consider the statutory policies


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that apply to every felony offense, including those set out in R.C. 2929.11 and R.C.

2929.12. State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.

       {¶13} Revised Code 2929.11 provides that sentences for a felony shall be

guided by the overriding purposes of felony sentencing: “to protect the public from

future crime by the offender and others, to punish the offender and to promote the

effective rehabilitation of the offenders[.]” R.C. 2929.11(A). In order to comply

with those purposes and principles, R.C. 2929.12 instructs a trial court to consider

various factors set forth in the statute relating to the seriousness of the offender’s

conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(F).

       {¶14} In the case sub judice, Freeman was convicted of Receiving Stolen

Property in violation of R.C. 2913.51(A)/(C), a felony of the fourth degree. Revised

Code 2929.14(A)(4) provides, “[f]or a felony of the fourth degree, the prison term

shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,

sixteen, seventeen, or eighteen months[.]” Thus, the trial court’s sentence of

eighteen months was within the statutory range for a felony of the fourth degree.

However, Freeman argues that the record does not support a maximum sentence in

this matter.

       {¶15} More specifically, Freeman argues that the trial court’s sentencing

entry had a checklist for all of the sentencing factors in R.C. 2929.12 regarding


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seriousness of the offense, and only one subsection was checked indicating that the

offense was more serious than conduct normally constituting the offense. While a

review of the trial court’s entry indicates this is true for that section, Freeman

ignores that the trial court “checked” several factors under R.C. 2929.12(D)

indicating that Freeman was likely to commit future crimes, and the trial court found

that there were no factors under R.C. 2929.12(E) indicating that Freeman was not

likely to commit future crimes. Moreover, the trial court expressed clear concern

with Freeman’s significant criminal history.

       {¶16} Since 1969, Freeman had been convicted of at least fifteen felonies,

eleven of them since 1985. His prior convictions included similar offenses to the

one before us, such as an Auto Theft in 2007, a Burglary, and multiple Receiving

Stolen Property convictions. After reviewing Freeman’s criminal history, the trial

court stated that “Given your prior record, * * * a maximum sentence is warranted

in this case.” (Tr. at 17).

       {¶17} On appeal, we cannot find that the trial court’s sentence was clearly

and convincingly contrary to law. The trial court carefully analyzed all of the

appropriate sentencing statutes and conducted a thorough examination of Freeman’s

lengthy criminal history. After reviewing all of these things, the trial court elected

to impose a maximum eighteen month prison term on Freeman. The trial court’s




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sentence was thus supported by the record. Therefore, Freeman’s first assignment

of error is overruled.

                             Second Assignment of Error

       {¶18} In Freeman’s second assignment of error, he argues that the trial court

erred by neglecting to give him jail-time credit in this matter. The State actually

concedes in its brief that the trial court failed to properly give Freeman jail-time

credit, and urges this Court to remand this matter so that Freeman may receive

proper credit.

       {¶19} From the record before us, it does appear that Freeman would be

entitled to jail-time credit. While denying a pretrial motion to dismiss on speedy

trial grounds that Freeman had filed, the trial court noted in its entry that the parties

were in agreement that Freeman was incarcerated for 64 days awaiting trial on the

charges in this case. Freeman argues on appeal that the trial court failed to give him

credit for these days at sentencing, and the State agrees.

       {¶20} On the basis of the record before us we are compelled to reverse this

matter so that Freeman may receive appropriate jail-time credit.             Therefore,

Freeman’s second assignment of error is sustained.




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                                     Conclusion

       {¶21} For the foregoing reasons the judgment of the Union County Common

Pleas Court is affirmed in part, and reversed in part, and this cause is remanded to

the trial court for further proceedings.

                                                     Judgment Affirmed in Part,
                                                          Reversed in Part and
                                                              Cause Remanded

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




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