State v. Wilson

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[Cite as State v. Wilson, 2010-Ohio-5585.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION Nos. 93859 and 93860 STATE OF OHIO PLAINTIFF-APPELLEE vs. JOMO WILSON DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeals from the Cuyahoga County Court of Common Pleas Case Nos. CR-518793 and CR-521422-B BEFORE: Sweeney, J., Gallagher, A.J., and McMonagle, J. RELEASED AND JOURNALIZED: November 18, 2010 ATTORNEY FOR APPELLANT Stephen P. Hardwick Assistant State Public Defender Ohio Public Defender s Office 250 E. Broad Street, Suite 1400 Columbus, Ohio 43215 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: Lisa Reitz Williamson Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.: {¶ 1} In this appeal, defendant-appellant Jomo Wilson ( defendant ) seeks to have his consecutive sentences vacated and the matter remanded for resentencing. For the reasons that follow, we affirm. Because the assignments of error are interrelated, we address them together for ease of discussion. {¶ 2} Assignment of Error No. I: The trial court erred by imposing consecutive sentences without making the findings required under R.C. 2929.14(E)(4), R.C. 2929.19(B)(2)(c), Crim.R. 32(A)(4), and the Fourteenth Amendment to the United States Constitution. {¶ 3} Assignment of Error No. II: Trial counsel and appellate counsel were ineffective for failing to raise winning issues. {¶ 4} Defendant seeks reversal on two basis: (1) for the imposition of consecutive sentences in the absence of the trial court making the statutory findings of R.C. 2929.14(E)(4); or (2) due to alleged ineffective assistance of counsel for failure to object to the imposition of consecutive sentences in the absence of the statutory findings. {¶ 5} As a result of the Ohio Supreme Court s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, Ohio courts have not been required to make the statutory findings of R.C. 2929.14(E)(4) prior to imposing consecutive sentences. Defendant contends that the United States Supreme Court decision, Oregon v. Ice (2009), 555 U.S. , 129 S.Ct. 711, 172 L.Ed.2d 517, effectively overruled Foster. {¶ 6} This court has addressed and consistently overruled these arguments; most recently in State v. Banna, Cuyahoga App. No. 93871, 2010-Ohio-4887.1 Based on this precedent we overrule appellant s assignments of error, deferring the determination of Ice's application to Ohio sentencing law for 1 Accord State v. Hundley, 1st Dist. Nos. C-090760 and C-090761, 2010-Ohio-4640; State v. Sabo, 3d Dist. No. 14-09-33, 2010-Ohio-1261, at ¶34-42; State v. Starett, 4th Dist. No. 07CA30, 2009-Ohio-744, at ¶35; State v. Lenoir, 5th Dist. No. 10CAA010011 2010-Ohio-4910, ¶59; State v. Lewis, 6th Dist. Nos. L-09-1224 and L-09-1225, 2010-Ohio-4202; State v. Nieves, 9th Dist. No. 08CA009500, 2009-Ohio-6374, at ¶52; State v. Nuh, 10th Dist. No. 10AP-31, 2010-Ohio-4740, State v. Moncoveish, 11th Dist. No. 2008-P-0075, 2009-Ohio-6227, at ¶21; and State v. Woodrey, 12th Dist. No. CA2010-01-008, 2010-Ohio-4079. the Ohio Supreme Court. See, e.g., State v. Robinson, Cuyahoga App. No. 92050, 2009-Ohio-3379, at ¶29 (concluding that, in regard to Ice, we decline to depart from the pronouncements in Foster, until the Ohio Supreme Court orders otherwise ); see, also, State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶35 ( Foster did not prevent the trial court from imposing consecutive sentences; it merely took away a judge s duty to make findings before doing so. The trial court thus had authority to impose consecutive sentences on Elmore. ) Judgment affirmed. It is ordered that appellee recover from appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES J. SWEENEY, JUDGE SEAN C. GALLAGHER, A.J., and CHRISTINE T. McMONAGLE, J., CONCUR

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