[Cite as State v. Miler, 2011-Ohio-1304.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE,
CASE NO. 11-10-10
v.
PORT E. MILER,
OPINION
DEFENDANT-APPELLANT.
Appeal from Paulding County Common Pleas Court
Trial Court No. CR-10-528
Judgment Affirmed
Date of Decision: March 21, 2011
APPEARANCES:
John S. Shaffer for Appellant
Joseph R Burkard for Appellee
Case No. 11-10-10
WILLAMOWSKI, J.
{¶1} Defendant-appellant Port E. Miler (“Miler”) appeals from the
judgment of the Court of Common Pleas of Paulding County finding him guilty of
aggravated murder and sentencing him to life imprisonment without parole. For
the reasons set forth below, the judgment is affirmed.
{¶2} On May 9, 2010, Miler and his victim were in the victim’s apartment
engaging in heroin use. The victim had a large amount of cash from a prior sale of
heroin to a third party. Miler then proceeded to rob the victim by slitting his throat
with multiple knives and taking the cash. Miler then returned to his home and
went into the bathroom. His ex-wife, who resided with him, entered the bathroom
and saw the blood and the knives. She asked Miler what happened and he told her
that he had killed his victim.
{¶3} On June 10, 2010, the Paulding County Grand Jury indicted Miler on
one count of aggravated murder, in violation of R.C. 2903.01(B). Miler entered a
plea of not guilty. On July 14, 2010, Miler changed his plea to guilty. The
sentencing hearing was held on September 2, 2010. The trial court sentenced
Miler to life imprisonment without the possibility of parole. Miler appeals from
this judgment and raises the following assignment of error.
The trial court abused its discretion in sentencing [Miler] to the
maximum sentence provided by law.
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Case No. 11-10-10
{¶4} In his sole assignment of error, Miler argues 1) that the trial court
should not have imposed the maximum sentence and 2) that imposition of the
maximum sentence is cruel and unusual punishment. Trial courts have discretion
to impose a prison sentence within the statutory range for the offense from which
the conviction stems. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470. “As a general rule, a sentence that falls within the terms of a valid
statute cannot amount to a cruel and unusual punishment.” State v. Hairston, 118
Ohio St.3d 289, 2008-Ohio-2338, ¶21, 888 N.E.2d 1073 (quoting McDougle v.
Maxwell (1964), 1 Ohio St.2d 68, 70, 203 N.E.2d 334). An assignment of error
challenging imposition of a maximum sentence pursuant to R.C. 2929.14 will only
be sustained if appellant shows that the judgment was clearly and convincingly
contrary to law. State v. Hubbard, 2d Dist. No. 23363, 2010-Ohio-3910, ¶26.
However, a review of the application of the factors in R.C. 2929.12(B) is
conducted under an abuse of discretion review.1
As stated by Justice Kennedy in his opinion concurring in part,
“The Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme
sentences that are ‘grossly disproportionate’ to the crime.”
1
In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E. 2d 124, Justices O’Connor, Moyer,
O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this position, although the first
three would use both standards of review in all cases. However, there was no majority opinion requiring a
two part review.
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Case No. 11-10-10
State v. Weitbrecht (1999), 86 Ohio St.3d 368, 371-72, 715 N.E.2d 167 (quoting
the concurring opinion in Harmelin v. Michigan (1991), 501 U.S. 957, 1001, 111
S.Ct. 2680, 115 L.Ed.2d 836). “Cases in which cruel and unusual punishments
have been found are limited to those involving sanctions which under the
circumstances would be considered shocking to any reasonable person.”
McDougle, supra at 70.
{¶5} In this case, Miler entered a guilty plea to one count of aggravated
murder.
The trial court had the options of sentencing Miler to 1) life
imprisonment with parole eligibility after twenty years of imprisonment; 2) life
imprisonment with parole eligibility after twenty-five years of imprisonment; 3)
life imprisonment with parole eligibility after thirty years of imprisonment; or 4)
life imprisonment without parole. Miler was aware that these were the only
sentencing options available when he entered his guilty plea. A review of the
record indicates that Miler had a long record of criminal offenses involving
assaults and various drug offenses. Miler was even on community control at the
time of the instant offense. In killing his victim, Miler attempted to cut his
victim’s throat in order to steal his money. When the first knife was unable to
complete the task, Miler went to the kitchen and retrieved a second, sharper knife,
went back to the bedroom and finished killing his victim.
The trial court
specifically found that this was the most brutal case it had ever seen. Sept. 2,
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Case No. 11-10-10
2010, Tr. 9. A review of the evidence before the trial court does not indicate that
the trial court abused its discretion in its application of the factors set forth in R.C.
2929.12(B). In addition, the sentence imposed was within the statutory limits set
forth and does not shock the sense of justice. Thus, it is neither clearly and
convincingly contrary to law2 nor a cruel and unusual punishment and does not
violate R.C. 2929.14. The assignment of error is overruled.
{¶6} The judgment of the Court of Common Pleas of Paulding County is
affirmed.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/jlr
2
Although Miler argues that the sentence is an abuse of discretion, the correct standard of review is clearly
and convincingly contrary to law.
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