State v. Lynn
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[Cite as State v. Lynn, 2010-Ohio-3042.] COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. W. Scott Gwin, P. J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vsCase No. CT2009-0041 MICHAEL D. LYNN Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2009-0116 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 30, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant D. MICHAEL HADDOX PROSECUTING ATTORNEY RON WELCH ASSISTANT PROSECUTOR 27 North Fifth Street Zanesville, Ohio 43701 VINCENT C. RUSSO MAGAZINER & MCGLADE LLC 44 6th Street Post Office Box 970 Zanesville, Ohio 43702-0970 Muskingum County, Case No. CT2009-0041 2 Wise, J. {¶1} Appellant Michael D. Lynn appeals his conviction and sentence, in the Court of Common Pleas, Muskingum County, for rape and pandering sexually oriented material involving a minor. The relevant facts leading to this appeal are as follows. {¶2} On June 10, 2009, the Muskingum County Grand Jury handed down a twenty-seven count indictment against appellant. On June 17, 2009, appellant appeared for his arraignment and entered pleas of not guilty to all counts. {¶3} On July 30, 2009, pursuant to a plea deal, appellant entered pleas of guilty to Count 1, rape (R.C. 2907.02(A)(2)) and Count 25, pandering sexually oriented material involving a minor (R.C. 2907.322(A)(1)). The State of Ohio agreed to drop the other twenty-five counts. However, no agreement was reached as to a sentencing recommendation. The court thereupon accepted appellant s pleas. {¶4} On September 21, 2009, appellant appeared before the court for sentencing. Following a hearing, the court sentenced appellant to a maximum sentence of ten years in prison for rape (felony of the first degree) and a maximum sentence of eight years in prison for pandering sexually oriented material involving a minor (felony of the second degree). The two terms were ordered to be served consecutively. Appellant was also classified as a Tier III sex offender. A sentencing entry was issued on September 29, 2009. {¶5} Appellant timely filed a notice of appeal and herein raises the following two Assignments of Error: {¶6} I. THE TRIAL COURT ERRED BY FAILING TO MAKE THE REQUISITE FINDINGS OF FACT TO SUPPORT THE IMPOSITION OF A CONSECUTIVE Muskingum County, Case No. CT2009-0041 3 SENTENCE, PURSUANT TO ORC 2929.14(E)(4), AND FAILING TO STATE ITS REASONING SUPPORTING SUCH STATUTORILY ENUMERATED FINDINGS ON THE RECORD AT THE SENTENCING HEARING, PURSUANT TO ORC 2929.19(B)(2)(c). {¶7} II. SENTENCING THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN MICHAEL D. LYNN TO MAXIMUM AND CONSECUTIVE SENTENCES. I. {¶8} In his First Assignment of Error, appellant contends the trial court erred in failing to state its reasoning for imposing the two sentences consecutively. We disagree. {¶9} Appellant essentially argues that in light of the decision of the United States Supreme Court in Oregon v. Ice (2009), --- U.S. ----, 129 S.Ct. 711, 172 L.Ed.2d 517, the trial court was required to literally comply with the requirements of R.C. 2929.14(E)(4) and 2929.19(B)(2)(c) in imposing consecutive sentences in this matter. In other words, appellant urges that Ice has effectively warranted that Ohio trial courts return to the felony sentencing scheme in place prior to the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. {¶10} In State v. Elmore, 122 Ohio St.3d 472, 912 N.E.2d 582, 2009-Ohio-3478, the Ohio Supreme Court cogently summarized Oregon v. Ice as a case that held that a jury determination of facts to impose consecutive rather than concurrent sentences was not necessary if the defendant was convicted of multiple offenses, each involving discrete sentencing prescriptions. Elmore at ¶ 34. Muskingum County, Case No. CT2009-0041 {¶11} In State v. Williams, Muskingum 4 App. No. CT2009-0006, 2009-Ohio- 5296, we cited State v. Mickens, Franklin App.No. 08AP-743, 2009-Ohio-2554, ¶ 25, for the proposition that an alteration of the Foster holding under Ice must await further review, if any, by the Ohio Supreme Court, as we are bound to follow the law and decisions of the Ohio Supreme Court, unless or until they are reversed or overruled. We thus elected to continue to adhere to the Ohio Supreme Court's decision in Foster, which holds that judicial fact finding is not required before a court imposes nonminimum, maximum or consecutive prison terms. Williams at ¶ 19, citing State v. Hanning, Licking App.No. 2007CA00004, 2007-Ohio-5547, ¶ 9. {¶12} Since the time of filing of appellant s brief in this matter, this Court has issued additional decisions addressing Ice. Two of these cases, State v. Smith, Licking App.No. 09-CA-31, 2009-Ohio-6449, and State v. Vandriest, Ashland App.No. 09COA032, 2010-Ohio-997, have apparently determined that the General Assembly s amendments to R.C. 2929.14, effective April 7, 2009, have effectively revived the requirement that a trial court make findings when imposing consecutive sentences. However, our research does not indicate that the General Assembly has expressed an intention to reassert R.C. 2929.14(E)(4) in light of Ice; furthermore, Smith, supra, has recently been accepted for review by the Ohio Supreme Court. We are thus not inclined to rely on Smith and Vandriest as precedent in this matter. Until the Ohio Supreme Court revisits the Foster issue, we will consider it binding on Ohio appellate courts. See State v. Mickens, supra. Muskingum County, Case No. CT2009-0041 5 {¶13} Accordingly, we herein reject appellant s claim that the trial court was required to make pre-Foster findings in sentencing appellant. Appellant s First Assignment of Error is overruled. II. {¶14} In his Second Assignment of Error, appellant argues the imposition of maximum and consecutive prison sentences in this case constituted an abuse of the trial court s discretion. We disagree. {¶15} Under Ohio s present felony sentencing scheme, trial courts have full discretion to impose a prison sentence within the statutory ranges, although postFoster trial courts must to consider the general guidance factors contained in R.C. 2929.11 and R.C. 2929.12. See State v. Duff, Licking App. No. 06-CA-81, 2007-Ohio1294. See also, State v. Diaz, Lorain App. No. 05CA008795, 2006-Ohio-3282. {¶16} Here, appellant was found guilty of rape and pandering sexually oriented material involving a minor. The trial court sentenced appellant within the permissible statutory range for the offenses (see R.C. 2929.14(A)), albeit the maximum on each count, to run consecutively. We initially find that such sentences were not contrary to law. {¶17} Appellant concedes that he had a relationship with the minor victim prior to the offenses being committed, and that this relationship may have facilitated the crimes. See R.C. 2929.12(B). Appellant nonetheless maintains that no violence was involved in the offenses and that there was no indication appellant used drugs or alcohol to inhibit the victim. We are directed to State v. Perales, Delaware App.No. 06CA-A-12-0093, 2008-Ohio-58, and State v. Bannister, Licking App.No. 07CA33, 2008- Muskingum County, Case No. CT2009-0041 6 Ohio-3901, which involved, respectively, lesser sentences of five years and four years against rape defendants who used coercion or physical force in their offenses. Appellant also maintains, in light of the factors under R.C. 2929.12(E) that he has no prior felonies or sex offenses on his record, and that he is a parent and has been gainfully employed. {¶18} In the sentencing entry in this case, the trial court stated that it had considered the record and the principles and purposes of sentencing, as well as the seriousness and recidivism factors, under R.C. 2929.11 and R.C. 2929.12. Based on our review of the record, we do not find the trial court abused its discretion in rendering its sentence. {¶19} Appellant s Second Assignment of Error is overruled. {¶20} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Muskingum County, Ohio, is affirmed. By: Wise, J. Gwin, P. J., concurs. Hoffman, J., concurs separately. /S/ JOHN W. WISE___________________ /S/ W. SCOTT GWIN__________________ ___________________________________ JUDGES JWW/d 616 Muskingum County, Case No. CT2009-0041 7 Hoffman, J., concurring {¶21} I agree with the majority s analysis and disposition of Appellant s second assignment of error. {¶22} I further concur in the majority s disposition of Appellant s first assignment of error but do so for the reasons set forth in this Court s opinion in State v. Arnold (June 25, 2010) Muskingum County No. CT2009-0021. _____________________________________ HON. WILLIAM B. HOFFMAN Muskingum County, Case No. CT2009-0041 8 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsMICHAEL D. LYNN Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. CT2009-0041 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed. Costs assessed to appellant. /S/ JOHN W. WISE___________________ /S/ W. SCOTT GWIN__________________ /S/ WILLIAM B. HOFFMAN_____________ JUDGES
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