[Cite as State v. Ogletree, 2019-Ohio-3999.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2019-L-009
        - vs -                                    :

JAMES J. OGLETREE,                                :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR
000719.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Ruth R. Fischbein-Cohen, 3552 Severn Road, Cleveland Heights, OH 44118 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, James J. Ogletree, appeals the judgment of the Lake County

Court of Common Pleas sentencing him to a total of 16 years and 56 months

imprisonment. For the reasons discussed herein, the judgment is affirmed.

        {¶2}     On the evening of July 16, 2018, Mr. Ogletree and three co-defendants

drove to Silverado’s Arms, a federally licensed firearms dealer, in a stolen Chevy Sonic.

Some of the co-defendants broke the glass front window, entered, and removed 13
firearms from their shelving unit and placed them in a duffle bag. They were interrupted

by the arrival of the Mentor Police Department and fled.

       {¶3}   Mr. Ogletree and one of his co-defendants fled in the stolen Chevy Sonic.

When the vehicle crashed, Mr. Ogletree continued his flight on foot until he encountered

a woman in a nearby medical facility’s parking lot. He forcibly removed her from her

Chevy Equinox, knocking her to the ground and causing her bruising. He tossed her

oxygen canister out of the car before driving off in her vehicle. In his flight, he drove

through three different counties, exceeding 100 miles per hour, committing numerous

traffic infractions and failing to stop for multiple police officers who had their lights and

sirens activated. The chase ended when the vehicle crashed into another vehicle.

       {¶4}   Mr. Ogletree was indicted on seven counts; to wit, Count One, attempted

grand theft when the property stolen is a firearm or dangerous ordnance, a felony of the

second degree, in violation of R.C. 2923.02; Count Two, breaking and entering, a felony

of the fifth degree, in violation of R.C. 2911.13(A); Count Three, failure to comply with

the order or signal of a police officer, a felony of the third degree, in violation of R.C.

2921.331(B); Count Four, failure to comply with the order or signal of a police officer, a

felony of the fourth degree, in violation of R.C. 2921.331(B); Count Five, robbery, a

felony of the second degree, in violation of R.C. 2911.02(A)(2); Count Six, receiving

stolen property (namely, the Chevy Sonic), a felony of the fourth degree, in violation of

R.C. 2913.51(A); and Count Seven, receiving stolen property (namely, the Chevy

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

       {¶5}   Mr. Ogletree pleaded guilty to Counts One, Three, Five, and Six; the

remaining counts were nolled. The court sentenced him to 8 years on Count One; 36




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months on Count 3; 8 years on Count 5; and 18 months on Count Six, all to run

consecutive to each other for a total of 16 years plus 54 months. He was also ordered

to pay restitution and his driver’s license was permanently suspended.

       {¶6}   Mr. Ogletree does not dispute the facts as outlined above insofar as they

relate to the elements of the offenses to which he pleaded guilty.         On appeal, Mr.

Ogletree argues that during sentencing, the court failed to take into consideration his

remorsefulness, a factor for consideration pursuant to R.C. 2929.12(4). Accordingly, his

sole assignment of error for our review states:

       {¶7}   The trial court committed error in neglecting to consider in the
              sentencing an important factor of R.C. 2929.12, which would serve
              to reduce the sentence. Since this code is nonexhaustive, and
              requires a sentencing court to take into account an appeasing
              factor that is supported by the record, the neglect to reflect upon
              the specifics of 2929.12(E) served to appellant’s detriment.

       {¶8}   Appellate courts review challenges to criminal sentences according to

R.C. 2953.08(G)(2), which provides that the standard of review is not whether the

sentencing court abused its discretion but whether the appellate court finds “clearly and

convincingly” that the sentence is not supported by the record or is contrary to law.

R.C. 2953.08(G)(2). See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶22 and State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971.

       {¶9}   “‘Clear and convincing evidence is that measure or degree of proof which

is more than a mere “preponderance of the evidence,” but not to the extent of such

certainty as is required “beyond a reasonable doubt” in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought

to be established.’” Marcum, supra at ¶22 quoting Cross v. Ledford, 161 Ohio St. 469

(1954), paragraph three of the syllabus. “As a practical consideration, this means that



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appellate courts are prohibited from substituting their judgment for that of the trial judge.

* * * ‘This is an extremely deferential standard of review.’” State v. Mullins, 11th Dist.

Portage No. 2012-P-0144, 2013-Ohio-4301, ¶21, quoting State v. Venes, 8th Dist.

Cuyahoga No. 98682, 2013-Ohio-1891, ¶21.

       {¶10} On appeal, Mr. Ogletree asserts that the court failed to consider, as

required by R.C. 2929.12(E)(5), his genuine remorse for the offense. He argues it is

obvious the court did not consider his remorse before sentencing “since he got

maximum and consecutive sentences.” Specifically, he argues that his actions were

“not the worst form of criminal transgressions,” and that maximum and consecutive

sentences are disproportionate to the crimes.

       {¶11} Mr. Ogletree points to the overriding purpose of felony sentencing,

codified in R.C. 2929.11, which states the court should “us[e] the minimum sanctions

that the court determines accomplish those purposes without imposing an unnecessary

burden on state or local government resources,” and argues a reduced sentence would

effectively serve this purpose. We disagree. It is clear from the record that the court

made all the findings necessary to impose maximum, consecutive sentences and

considered all the required factors and purposes of sentencing, including remorse;

indeed, the court expressly determined that Mr. Ogletree was not genuinely remorseful.

       {¶12} “In sentencing an offender for a felony, a trial court is required to consider

the purposes of felony sentencing in R.C. 2929.11(A) and consider the statutory

seriousness and recidivism factors in R.C. 2929.12(A).” State v. Hull, 11th Dist. Lake

No. 2016-L-035, 2017-Ohio-157, ¶18. However, a sentencing court is not required to

“‘use specific language or make specific findings on the record in order to evince the




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requisite consideration of the applicable seriousness and recidivism factors (of R.C.

2929.12).’”   State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-Ohio-4198, ¶10,

quoting State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302. Instead, the defendant

has the burden of affirmatively showing that the court did not consider the applicable

sentencing criteria or that the sentence imposed is “strikingly inconsistent” with the

applicable sentencing factors. State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-

Ohio-4416, ¶79.

       {¶13} As this court has previously held, “‘“a maximum sentence is not contrary to

law when it is within the statutory range and the trial court considered the statutory

principles and purposes of sentencing as well as the statutory seriousness and

recidivism factors.”ʼ” (Citation omitted.) State v. Pritschau, 11th Dist. Lake No. 2015-L-

115, 2016-Ohio-7147, ¶21 quoting State v. Talley, 11th Dist. Trumbull No. 2014-T-0098,

2015-Ohio-2816, ¶15. Here, the sentences are within the statutory range and the court

expressly noted it considered the statutory principles and purposes of sentencing, and

the statutory seriousness and recidivism factors. It also found Mr. Ogletree committed

the worst form of robbery and failure to comply, noting that anything more serious would

have been a higher crime.

       {¶14} Furthermore, in order to impose consecutive sentences, the sentencing

court must find, as this court did, that:

       {¶15} 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:

       {¶16} * * *




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       {¶17} (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.

       {¶18} (c) The offender’s history of criminal conduct demonstrates that
             consecutive sentences are necessary to protect the public from
             future crime by the offender. R.C. 2929.14

       {¶19} At sentencing, the court found that R.C. 2929.14(C)(4)(b) and (c) applied,

stating:

       {¶20} Consecutive sentences are necessary to protect the public and to
             punish this offender. Consecutive sentences would not be
             disproportionate to his conduct and the danger he poses. The harm
             is so great or unusual on these four offenses that a single term
             would not adequately reflect the seriousness of his conduct, and his
             criminal history shows that consecutive terms are needed to protect
             the public from future crime.

       {¶21} Mr. Ogletree’s defense counsel argued numerous mitigating factors and

Mr. Ogletree himself addressed the court, saying:

       {¶22} Your Honor, I just want to say I take full responsibility for the parts I
             was involved in. * * * I don’t want to make an excuse for myself at
             all, cause I did – I did. I just want to ask that you take in
             consideration that, my point of view of the whole situation.

       {¶23} During the sentencing recommendation, the prosecutor noted that the first

time Mr. Ogletree showed remorse was at sentencing, and that in a recorded jail call Mr.

Ogletree said the police were lucky he didn’t have his gun out or he would have shot

back at them. Mr. Ogletree, through counsel, stated he did not remember making this

call. No transcript or recording of the call is in the record, but a jail call recording was

listed in the prosecution’s discovery response.

       {¶24} In support of his argument, Mr. Ogletree notes that he did not use a gun in

his flight, that he was not the driver of the Chevy Sonic, and that aside from some


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bruising, the owner of the Chevy Equinox was not caused serious harm. However, the

owner of the Chevy Equinox testified at sentencing that she suffered severe

psychological harm, including fear of strangers and nightmares, and is undergoing

counseling.   Mr. Ogletree did not acknowledge the victim’s psychological harm.

Moreover, while Mr. Ogletree was not the initial driver of the Chevy Sonic, the record

indicates that when the initial driver was shot in the side of the head, Mr. Ogletree took

control of the vehicle. Finally, in the pre-sentence investigation report Mr. Ogletree

stated he knows what he did was bad but indicated he cannot change it. While Mr.

Ogletree accepted responsibility for his actions, the record does not show he ever

apologized or otherwise expressed regret. Only his defense counsel stated he was

remorseful and would take back his actions if he could.

      {¶25} The court stated that it considered all the statements made by Mr.

Ogletree, his defense counsel, and the prosecutor, as well as the pre-sentence

investigation report and victim impact statement, and nevertheless found that Mr.

Ogletree did not display genuine remorse. Thus, we find the court did consider whether

Mr. Ogletree was remorseful and, accordingly, the sentence was not clearly and

convincingly unsupported by the record or otherwise contrary to law.

      {¶26} Mr. Ogletree’s sole assignment of error is without merit.

      {¶27} The judgment of the Lake County Court of Common Pleas is affirmed.


TIMOTHY P. CANNON, J.,

MATT LYNCH, J.,

concur.




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