[Cite as State v. Redmond, 2019-Ohio-309.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-18-1066

        Appellee                                 Trial Court No. CR0201702987

v.

Charles Edward Redmond                           DECISION AND JUDGMENT

        Appellant                                Decided: February 1, 2019

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

        Sarah Haberland, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a February 22, 2018 judgment of the Lucas County

Court of Common Pleas, sentencing appellant to a three-year term of incarceration

following appellant’s conviction on one count of burglary, in violation of R.C. 2911.12, a

felony of the third degree.
       {¶ 2} This offense occurred while appellant was on community control for prior

felony convictions. For the reasons set forth below, this court affirms the judgment of the

trial court.

       {¶ 3} Appellant, Charles Edward Redmond, sets forth the following two

assignments of error:

               I. The trial court erred by abusing its discretion at sentencing, thus

       defendant is awarded appellate rights under R.C. 2953.08(A)(1)(a).

               II. The trial court abused its discretion at sentencing, by failing to

       consider all of the necessary factors under R.C. 2929.12.

       {¶ 4} The following undisputed facts are relevant to this appeal. On

November 15, 2017, appellant was indicted on one count of burglary, in violation of R.C.

2911.12, a felony of the first degree. This case arises from appellant’s unlawful incursion

into the Toledo area apartment of three female college students.

       {¶ 5} The record reflects that appellant, who possesses an extensive criminal

record, including prior felony convictions and related terms of incarceration, committed

the instant offense while on community control resulting from prior criminal convictions.

       {¶ 6} On February 5, 2018, pursuant to a voluntarily negotiated plea agreement,

appellant pled guilty to a lesser, third-degree felony burglary offense, in violation of R.C.

2911.12.




2.
       {¶ 7} On February 22, 2018, the same trial court judge to whom appellant

remained on community control on the earlier conviction, sentenced appellant in the

present case.

       {¶ 8} The record reflects that the trial court judge thoroughly considered the

evidence and relevant factors in the course of crafting the sentence in this case. The trial

court stated in relevant part, “You committed this crime while you’re on probation to me

* * * You did four years for a conviction on rape. You now have been convicted of

burglary. It just doesn’t seem to me that you understand what it means to be a law-

abiding citizen.”

       {¶ 9} The record further reflects that the trial court went on to convey, “I have

considered your record * * * I have listened to the statements made, I have read victim

impact statements * * * [C]onsidered the principles and purposes of sentencing * * * I’ve

balanced the seriousness and recidivism factors * * * [I’ve] considered all factors.”

       {¶ 10} The trial court ultimately concluded, “I find that you are not amenable to

community control and that prison is consistent with the purposes of [R.C.] 2929.11.”

Appellant was sentenced to a three-year term of incarceration. This appeal ensued.

       {¶ 11} In the first assignment of error, counsel for appellant sets forth that

appellant possesses the ability to pursue this appeal as a matter of right pursuant to R.C.

2953.08(A)(1)(a) given that appellant received the “maximum prison term allowed for

the offense.”




3.
       {¶ 12} In response to the first assignment of error, appellee simply concurs that

under the facts and circumstances of this case appellant is entitled to an appeal as a matter

of statutory right.

       {¶ 13} We find appellant’s first assignment of error to be well-taken, while noting

for clarity that the matter framed by appellant as the first assignment of error constitutes

an uncontested assertion of appellant’s statutory right to an appeal in this case.

       {¶ 14} In appellant’s second assignment of error, appellant maintains that the trial

court improperly, unlawfully sentenced appellant. We do not concur.

       {¶ 15} It is well-established that the proper scope of felony sentence review by

Ohio appellate courts is set forth in R.C. 2953.08(G)(2). As such, an appellate court may

decrease, increase, modify, or vacate and remand a disputed felony sentence if it clearly

and convincingly finds either that the sentence was based upon relevant statutory findings

not supported by the record or it is otherwise contrary to law. State v. Tammerine, 6th

Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.

       {¶ 16} In support of appellant’s second assignment of error, appellant

unconvincingly suggests that the trial court improperly assessed the seriousness of the

crime by viewing it as a more serious offense than appellant believes should have been

the case.

       {¶ 17} Appellant suggests that because the students who live in the apartment

were not at home when appellant unlawfully entered the residence, that should operate to




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render the offense to be considered as not serious enough to justify the sentence imposed.

We are not persuaded.

       {¶ 18} The record reflects that appellant, while on community control for separate

felony convictions, wore a mask, rubber gloves, and entered an apartment with a hammer

where he had no legal right to be present.

       {¶ 19} The record reflects, and the trial judge noted, convincing evidence such as

the extent of appellant’s prior criminal convictions, prior terms of incarceration, and prior

terms of community control. Accordingly, the trial court correctly held that the

prevailing interest in this case of protection of the public and the risk of recidivism

weighed strongly in support of the disputed sentence.

       {¶ 20} The record is devoid of any evidence, and appellant has failed to

demonstrate, that the sentence underlying this case was based upon applicable statutory

findings not supported by the record or was otherwise contrary to law. We find

appellant’s second assignment of error not well-taken.

       {¶ 21} Wherefore, the judgment of the Lucas County Court of Common Pleas is

hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.

24.


                                                                          Judgment affirmed.




5.
                                                                      State v. Redmond
                                                                      C.A. No. L-18-1066




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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