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Date: 04-09-2019

Case Style:

STATE OF OHIO v. TONY L. BEVERLY

Case Number: 8-18-53

Judge: C. Kathryn Preston

Court: COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

Plaintiff's Attorney: Eric C. Stewart

Defendant's Attorney: Samantha L. Berkhofer

Description:





On May 22, 2018, Beverly and a juvenile acquaintance stole two packs
of cigarettes and a package of candy from a tractor in West Mansfield, Ohio. (Doc.
No. 25). That same day, Beverly and the juvenile associate broke into a camper in
West Mansfield and stole two 24-pack cases of beer and two large bottles of vodka.
(Id.); (Aug. 17, 2018 Tr. at 12). Then, on May 23, 2018, Beverly and two juvenile
confederates entered a home in West Mansfield and stole a soft drink, four cell
phones, a cell phone charger, and a wallet. (Doc. No. 25); (Aug. 17, 2018 Tr. at
12).
{¶3} On June 12, 2018, the Logan County Grand Jury indicted Beverly on
five counts: Count One of burglary in violation of R.C. 2911.12(A)(2), (D), a
second-degree felony; Counts Two and Four of petty theft in violation of R.C.
2913.02(A)(1), (B)(2), first-degree misdemeanors; Count Three of breaking and
entering in violation of R.C. 2911.13(A), (C), a fifth-degree felony; and Count Five
of contributing to unruliness or delinquency of a child in violation of R.C.
2919.24(B)(1), (C), a first-degree misdemeanor. (Doc. No. 4). On June 15, 2018,



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Beverly appeared for arraignment and entered pleas of not guilty to the counts of
the indictment. (Doc. No. 13).
{¶4} A change of plea hearing was held on August 17, 2018. (Doc. Nos. 50,
53); (Aug. 17, 2018 Tr. at 1-3). At the hearing, the State moved to amend Count
One of the indictment from second-degree felony burglary to third-degree felony
burglary, and the trial court subsequently granted the State’s motion. (See Doc. No.
53). Thereafter, Beverly, pursuant to a negotiated plea agreement, withdrew his
pleas of not guilty and pleaded guilty to amended Count One and Counts Two,
Three, and Four of the indictment. (Aug. 17, 2018 Tr. at 18-19); (Doc. No. 53). In
exchange, the State agreed to recommend dismissal of Count Five of the indictment.
(Aug. 17, 2018 Tr. at 4, 19); (Doc. No. 53). The trial court then accepted Beverly’s
guilty pleas, found him guilty, and ordered a presentence investigation. (Doc. No.
53). The trial court also dismissed Count Five of the indictment. (Id.). The trial
court filed its judgment entry of conviction on August 28, 2018. (Id.).
{¶5} On September 18, 2018, the trial court sentenced Beverly to 30 months
in prison on amended Count One and 12 months in prison on Count Three. (Doc.
No. 55). The trial court ordered that the sentences for Counts One and Three be




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served consecutively for an aggregate term of 42 months’ imprisonment.1 (Id.). The
trial court did not sentence Beverly to jail terms for Counts Two and Four. (Id.).
The trial court filed its judgment entry of sentence on September 19, 2018. (Id.).
{¶6} Beverly filed his notice of appeal on October 10, 2018. (Doc. No. 63).
He raises one assignment of error.
Assignment of Error

Whether the trial court abused its discretion by sentencing Defendant, who was a first time offender, to a maximum sentence?

{¶7} In his assignment of error, Beverly argues that the trial court erred by
sentencing him to an aggregate term of 42 months’ imprisonment for Counts One
and Three. Specifically, Beverly argues that “the maximum consecutive sentences
given to him is [sic] not proportional to the charges as a first time adult felon.”
(Appellant’s Brief at 4). In addition, Beverly argues that the “Court looked over the
need for rehabilitation that even the State was willing to risk on [him].” (Id.). He
contends that a “maximum sentence” is inappropriate because his crimes do not
constitute the “worst forms” of the offenses. (Id. at 3).
1 At the time of sentencing, Beverly had also been indicted for a single count of breaking and entering in violation of R.C. 2911.13(A), a fifth-degree felony, in Logan County case number CR 18-04-0131. (See Doc. No. 55). In that case, Beverly was sentenced to 12 months in prison. (See id.); (Appellee’s Brief, Appx. at 1). The trial court ordered that Beverly’s aggregate 42-month sentence in this case, CR 18-06-0165, be served consecutively to his sentence in case number CR 18-04-0131, resulting in a total term of 54 months’ imprisonment. (Doc. No. 55). However, Beverly’s notice of appeal was filed only in case number CR 1806-0165 and he did not attach a copy of the judgment entry of sentence from case number CR 18-04-0131. (See Doc. No. 63). Thus, for purposes of this appeal, Beverly is challenging neither his 12-month sentence in case number CR 18-04-0131 nor the fact that his sentence in case number CR 18-04-0131 is to be served consecutively to his 42-month sentence in this case.



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{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶9} “‘Trial courts have full discretion to impose any sentence within the
statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶
9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. As a third
degree felony, burglary carries a sanction of 9 to 36 months’ imprisonment. R.C.
2911.12(A)(3), (D); R.C. 2929.13(C) (Oct. 17, 2017) (current version at R.C.
2929.13(C) (Mar. 22, 2019)); R.C. 2929.14(A)(3)(b) (Oct. 17, 2017) (current
version at R.C. 2929.14(A)(3)(b) (Mar. 22, 2019)). As a fifth-degree felony,
breaking and entering carries a sanction of 6 to 12 months’ imprisonment. R.C.
2911.13(A), (C); R.C. 2929.13(B)(1)(b)(xi) (Oct. 17, 2017) (current version at R.C.
2929.13(B)(1)(b)(xi) (Mar. 22, 2019)); R.C. 2929.14(A)(5) (Oct. 17, 2017) (current
version at R.C. 2929.14(A)(5) (Mar. 22, 2019)).



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{¶10} The trial court sentenced Beverly to 30 months in prison on the
burglary offense and 12 months in prison on the breaking and entering offense.
Thus, Beverly’s sentences fall squarely within their statutory ranges. “‘[A] sentence
imposed within the statutory range is “presumptively valid” if the [trial] court
considered applicable sentencing factors.’” State v. Nienberg, 3d Dist. Putnam Nos.
12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 10, quoting State v. Maggette, 3d Dist.
Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v. Collier, 8th Dist.
Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.
{¶11} “R.C. 2929.11 provides, in pertinent part, that the ‘overriding purposes
of felony sentencing are to protect the public from future crime and to punish the
offender.’” Smith at ¶ 10, quoting R.C. 2929.11(A) (Sept. 30, 2011) (current version
at R.C. 2929.11(A) (Oct. 29, 2018)). “In advancing these purposes, sentencing
courts are instructed to ‘consider the need for incapacitating the offender, deterring
the offender and others from future crime, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or both.’” Id., quoting R.C.
2929.11(A) (Sept. 30, 2011) (current version at R.C. 2929.11(A) (Oct. 29, 2018)).
“Meanwhile, R.C. 2929.11(B) states that felony sentences must be ‘commensurate
with and not demeaning to the seriousness of the offender’s conduct and its impact
upon the victim’ and also be consistent with sentences imposed in similar cases.”
Id., quoting R.C. 2929.11(B) (Sept. 30, 2011) (current version at R.C. 2929.11(B)



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(Oct. 29, 2018)). “In accordance with these principles, the trial court must consider
the factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the
offender’s conduct and the likelihood of the offender’s recidivism.” Id., citing R.C.
2929.12(A).
{¶12} Here, it is clear from the record that the trial court sentenced Beverly
after considering the purposes of felony sentencing set forth in R.C. 2929.11(A) and
the R.C. 2929.12(B)-(F) factors relevant to the seriousness of Beverly’s offenses,
the likelihood that he would recidivate, and his service in the armed forces, if any.
At the sentencing hearing, the trial court advised Beverly that the “criminal justice
system” is designed to “punish [him] for [his] behavior,” “rehabilitate [him],” “deter
* * * [him] [from] engaging in these practices in the future, and * * * deter others
who may be similarly situated,” and “protect the public if the Court deems [that]
protection of the public is appropriate.” (Sept. 18, 2018 Tr. at 10-11). (See Sept.
18, 2018 Tr. at 14). Hence, the trial court considered the purposes and principles of
felony sentencing as expressed in R.C. 2929.11(A). (See Doc. No. 55). In addition,
the trial court reviewed the presentence investigation report (“PSI”) and noted that
Beverly has an extensive juvenile record, that efforts to rehabilitate Beverly while
he was a still a minor proved fruitless, and that Beverly had already engaged in
serious criminal conduct as an adult. (Sept. 18, 2018 Tr. at 11-14). See R.C.
2929.12(D)(2), (3). The trial court also noted that Beverly committed the offenses



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while released on bond in another criminal matter. (Sept. 18, 2018 Tr. at 5, 15-16).
See R.C. 2929.12(D)(1). Finally, the trial court considered whether Beverly had
previously served in the armed forces, which he did not. (Sept. 18, 2018 Tr. at 16).
See R.C. 2929.12(F). Thus, the record reflects that the trial court appropriately
considered the principles and purposes of felony sentencing and the applicable R.C.
2929.12 factors in determining Beverly’s sentence.
{¶13} Nevertheless, Beverly contends that his “maximum” sentence is
unsupported by the record or contrary to law because his offenses are not the “worst
forms” of burglary and breaking and entering. In addition, he argues that his
sentence is unduly harsh because he is a first-time adult felony offender and because
the trial court failed to properly consider his need for and receptiveness to
rehabilitation.
{¶14} At the outset, we note that Beverly incorrectly describes his sentence
as a “maximum” sentence. As indicated above, the maximum sentence for a first
offense of third-degree felony burglary is 36 months’ imprisonment. See R.C.
2929.14(A)(3)(b). For third-degree burglary, Beverly was sentenced to 30 months’
imprisonment. Although Beverly was sentenced to the 12-month maximum for his
breaking-and-entering offense, because he was given a 30-month sentence for
burglary, his aggregate sentence of 42 months’ imprisonment is 6 months less than



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the statutory maximum consecutive sentence. Consequently, Beverly is not serving
a “maximum” sentence.
{¶15} Furthermore, even if Beverly’s sentence was a maximum sentence, his
argument that his sentence is unsupported by the record or contrary to law because
his burglary and breaking-and-entering offenses are not the “worst forms” of those
offenses is misplaced. Beverly “is relying on a version of [R.C. 2929.14(C)] that
was declared unconstitutional and was severed from the Ohio Revised Code in State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.” State v. Roberts, 2d Dist. Clark No.
2017-CA-98, 2018-Ohio-4885, ¶ 16, citing State v. Latham, 2d Dist. Champaign
No. 08-CA-17, 2009-Ohio-3517, ¶ 4 (discussing former R.C. 2929.14(C) and its
severance). “[T]rial courts do not need to make findings or provide reasons for
imposing maximum sentences. Instead, they need only consider applicable
statutory criteria, including those set out in R.C. 2929.11 and R.C. 2929.12.” Id.,
citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14-15.
Therefore, even if the trial court had imposed a maximum sentence, it would not
have been required to find that Beverly committed the “worst forms” of burglary
and breaking and entering in order to do so.
{¶16} Finally, Beverly argues that his sentence is excessive because “[a]t the
time these charges were filed[,] *** [he] had no adult felony court convictions.”
(Appellant’s Brief at 3). Beverly’s argument is without merit. First, although



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Beverly may not have had any adult felony convictions when he was indicted for
burglary and breaking and entering in this case, by the time of the sentencing
hearing, Beverly had been convicted of one felony count in a companion Logan
County case and of one felony and one first-degree misdemeanor in Union County.
(See PSI at 7); (See Doc. No. 55). In addition, although not a felony, Beverly had
been convicted in Logan County of unlawful sexual conduct with a minor, a first
degree misdemeanor, and sentenced just three days after the indictment was filed in
this case. (PSI at 7). Furthermore, the record establishes that Beverly had an
extensive history of involvement with the juvenile court system. The PSI reflects
that, since age 11, Beverly had been adjudicated delinquent numerous times,
including for offenses such as aggravated trespass, burglary, escape, unauthorized
use of a motor vehicle, making false alarms, and falsification. (PSI at 5-6). Thus,
although Beverly’s adult felony history was relatively limited, his sentence is not
disproportionate to the seriousness of his offenses given his lengthy juvenile history.
{¶17} Moreover, the PSI reveals that, despite numerous attempts at
intervention, Beverly was not amenable to rehabilitation as a juvenile. For example,
after being adjudicated delinquent in 2012 following an admission to burglary,
Beverly was placed on probation. (PSI at 5). However, he committed a probation
violation in 2015 and he was ultimately unsuccessfully released from probation in
2018. (Id.). Despite being offered multiple alternatives to commitment, including



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community service and counseling, Beverly continued to reoffend. (Id.). Therefore,
the record supports that Beverly repeatedly failed to take advantage of opportunities
for rehabilitation.
{¶18} In conclusion, the trial court properly considered the purposes and
principles of felony sentencing and applied the relevant R.C. 2929.12 factors.
Furthermore, Beverly’s sentences are within the statutory ranges. Therefore, there
is not clear and convincing evidence that Beverly’s sentences are unsupported by
the record or that his sentences are otherwise contrary to law. See Nienberg, 2017
Ohio-2920, at ¶ 23.
{¶19} Beverly’s assignment of error is overruled.

Outcome: } Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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