State v. Fodal
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[Cite as State v. Fodal, 2004-Ohio-164.] IN THE COURT OF APPEALS SECOND APPELLATE DISTRICT OF OHIO GREENE COUNTY STATE OF OHIO, Plaintiff-Appellee, : : CASE NO. 2003-CA-024 : O P I N I O N -vs: JOE FODAL, : Defendant-Appellant. : CRIMINAL APPEAL FROM THE GREENE COUNTY COURT OF COMMON PLEAS Case No. 2001-CR-203 Keith Anderson, Special Prosecutor for Greene County, 500 Justice Drive, Lebanon, OH 45036, for plaintiff-appellee Skelton, McQuiston, Gounaris & Henry, Richard S. Skelton, 130 W. Second Street, Suite 1818, Dayton, OH 45402, for defendantappellant POWELL, J. {¶1} Defendant-appellant, Joe Fodal, appeals from the Greene County Common Pleas Court's decision to sentence him to a Greene CA2003-CA-024 five-month jail term for petty theft following his guilty plea to that charge. {¶2} theft In April pursuant to 2001, R.C. Fodal was indicted 2913.02(A)(2), a on one count fifth-degree of felony. The charge stemmed from allegations that Fodal took $2,262 from one of his clients and converted it to his personal use. Fodal agreed to plead guilty to one count of petty theft pursuant to R.C. 2913.02(A)(2), a first-degree misdemeanor. The trial court sentenced Fodal to a five-month jail term and placed him on probation for a period of one year, with the period of probation to commence on his sentencing date. {¶3} Fodal appealed his sentence to this court, raising two assignments of error. In his first assignment of error, he argued that the trial court abused its discretion by imposing a five-month jail term which, he claimed, was unduly harsh. In his second assignment of error, he argued that the trial court actually meant only to place him on probation, with no jail time, because it was inconsistent to impose a jail sentence on a defendant and, at the same time, to place him on probation. {¶4} This court rejected Fodal's first assignment of error, but sustained in part his second assignment of error. This court reversed Fodal's sentence, and remanded the matter to the - 2 - Greene CA2003-CA-024 trial court for re-sentencing. On remand, sentenced Fodal to a five-month jail term. the trial court Fodal now appeals, raising one assignment of error as follows: {¶5} "THE JUDGE'S SENTENCE IN THIS CASE WAS AN ABUSE OF DISCRETION AND UNDULY HARSH." {¶6} Fodal argues that the trial court discretion by imposing a five-month jail sentence. abused its In support of this argument, he generally makes the same arguments he did during his initial appeal. We reject these arguments for the same reasons we did in his initial appeal. See State v. Fodal, Greene App. No. 2001-CA-115, 2003-Ohio-204. The trial court's sentencing well decision in this case was considerable discretion it has in such matters. Id. within the Fodal also attempts to challenge certain comments the trial court made at the original sentencing hearing, but, obviously, he cannot raise any such argument now, at this late date. {¶7} Fodal's assignment of error is overruled. {¶8} The trial court's judgment is affirmed. VALEN, P.J., and WALSH, J., concur. Valen, P.J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution. - 3 - Greene CA2003-CA-024 Walsh, J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution. Powell, J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution. Copies provided by the court to: Keith Anderson 500 Justice Drive Lebanon, OH 45036 Robert K. Assistant 61 Greene Xenia, OH Hendrix Prosecutor Street 45385 Richard S. Skelton 130 W. Second Street Suite 450 Dayton, OH 45402 Greene County Common Pleas Court Visiting Judge 45 N. Detroit Street Xenia, OH 45385-2998 - 4 -
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