State v. McRae

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[Cite as State v. McRae , 2011-Ohio-1639.] 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. CT10-0037 JAMES MCCRAE Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2009-0089 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: March 31, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant RON WELCH Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street, P.O.Box 189 Zanesville, Ohio 43702-0189 ROBERT D. ESSEX 1654 East Broad Street Suite 302 Columbus, Ohio 43203 Muskingum County, Case No. CT10-0037 2 Hoffman, J. {¶1} Defendant-appellant James McCrae appeals his sentence entered by the the Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE1 {¶2} On April 26, 2010, Appellant entered pleas of guilty to one count of involuntary manslaughter, in violation of R.C. 2903.04(A), with a firearm specification; and one count of having a weapon under disability, in violation of R.C. 2923.13(A). The parties jointly recommended a fifteen year prison sentence. {¶3} Following a hearing, the trial court imposed the maximum, consecutive prison sentence totaling eighteen years. {¶4} Appellant now appeals, assigning as error: {¶5} I. IN LIGHT OF OREGON V. ICE, THE TRIAL COURT ERRED IN FAILING TO MAKE THE REQUIRED FINDINGS UNDER O.R.C. 2929.14(E)(4) TO JUSTIFY CONSECUTIVE SENTENCES. {¶6} Appellant asserts in the wake of the United States Supreme Court decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, the Ohio Supreme Court decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006Ohio-856, has been overruled and the fact finding provisions of R.C. 2929.14(E)(4) have been resurrected. We disagree. {¶7} The Ohio Supreme Court recently addressed this issue in State v. Hodge (2010), 128 Ohio St.3d 1, holding: 1 A rendition of the facts pertaining to the appeal is unnecessary for our disposition. Muskingum County, Case No. CT10-0037 {¶8} 3 The United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio's former consecutivesentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. {¶9} The Ohio Supreme Court concluded trial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new legislation requiring findings be made. {¶10} Accordingly, Appellant s sole assignment of error is overruled, and the judgment of the Muskingum County Court of Common Pleas is affirmed. By: Hoffman, J. Gwin, J. and Wise, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN s/ John W. Wise _____________________ HON. JOHN W. WISE Muskingum County, Case No. CT10-0037 4 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsJAMES MCCRAE Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. CT10-0037 For the reason stated in our accompanying Opinion, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs to Appellant. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN s/ John W. Wise _____________________ HON. JOHN W. WISE

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