State v. Hill

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[Cite as State v. Hill, 2012-Ohio-2531.] 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. CT2011-0063 ROBERT L. HILL Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2011-0135 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 7, 2012 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant D. MICHAEL HADDOX PROSECUTING ATTORNEY RON WELCH ASSISTANT PROSECUTOR 27 North Fifth Street Zanesville, Ohio 43701 DAVID A. SAMS Box 40 West Jefferson, Ohio 43162 Muskingum County, Case No. CT2011-0063 2 Wise, J. {¶1} Defendant-appellant Robert L. Hill appeals his sentence and conviction on one count of robbery following a guilty plea in the Muskingum County Court of Common Pleas. {¶2} Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE AND FACTS {¶3} On June 1, 2011, Defendant-Appellant Robert Hill was indicted on one count of Robbery, a felony of the second degree; one count of Theft, a felony of the fourth degree; and one count of Possession of Criminal Tools, a felony of the fifth degree. {¶4} On October 5, 2011, pursuant to a negotiated plea agreement, Appellant entered a plea of guilty to an amended charge of Robbery, a felony of the third degree. In exchange, the State agreed to Nolle the remaining two charges. {¶5} At the sentencing hearing on November 7, 2011, the trial court sentenced Appellant to five (5) years in prison. {¶6} Appellant now appeals, assigning the following error for review: ASSIGNMENT OF ERROR {¶7} I. THE DEFENDANT-APPELLANT WAS SENTENCED TO A 60- MONTH PRISON TERM UNDER R.C. 2929.14(A)(3)(a) IN VIOLATION OF OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS. I. {¶8} In his sole Assignment of Error, Appellant argues that the trial court erred in sentencing. We disagree. Muskingum County, Case No. CT2011-0063 {¶9} 3 It is well-established that a sentence that is agreed upon as part of a negotiated plea, and that does not exceed the statutory maximum sentence applicable to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D). State v. Yeager, Carroll App.No. 03CA786, 2004 Ohio 3640, ¶ 21 (additional citations omitted). {¶10} However, in the case sub judice, the record indicates that the plea agreement did not include a recommended sentence; instead, the parties agreed that the case would be referred for a presentence investigation. At the sentencing hearing, the State asked for the full sixty months. (T. at 3-4). Defense counsel asked the court to consider a positional thirty-six month prison sentence. (T. at 5). In these circumstances, we find Appellant has not waived his right to challenge his sentence upon direct appeal. {¶11} We begin our analysis with the premise that the trial court has wide discretion to sentence an offender within the allowable statutory range permitted for a particular degree of offense. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. R.C. §2929.11(B) provides that a felony sentence must be reasonably calculated to achieve the two purposes set forth in R.C.§ 2929.11(A): commensurate with and not demeaning to the seriousness of the crime and its impact on the victim and consistent with sentences imposed on similarly-situated offenders. The court must also consider the seriousness and recidivism factors under R.C. §2929.12. {¶12} However, R.C. §2929.11 and §2929.12 do not mandate judicial factfinding. Rather, [t]he court is merely to consider the statutory factors. Foster at ¶ 42. Thus, in exercising its discretion, a court is merely required to consider the purposes of sentencing in R.C. §2929.11 and the statutory * * * factors set forth in R.C.§2929.12. Muskingum County, Case No. CT2011-0063 4 State v. Sutton, 8th Dist. No. 97132, 2012 Ohio 1054, ¶ 11, citing State v. Lloyd, 11th Dist. No.2006 L 185, 2007 Ohio 3013, ¶ 44. {¶13} Subsequent to Foster, in a plurality opinion, the Ohio Supreme Court established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. The first step is to examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. Kalish at ¶ 4. If this first step is satisfied, the second step requires the trial court's decision be reviewed under an abuse-of-discretion standard. Id. {¶14} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, the Ohio Supreme Court recently held, at paragraph two of the syllabus, that the United States Supreme Court's decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, did not revive Ohio's former consecutive-sentencing statutory provisions, R.C. §2929.14(E)(4) and §2929.41(A), which were held unconstitutional in Foster and imposed no factfinding obligation on Ohio's trial courts. Id. at ¶ 39. {¶15} The General Assembly recently amended R.C. §2929.14(C)(4) and enacted new language requiring fact-finding for consecutive sentences. Am.Sub.H.B. No. 86. This legislation became effective September 30, 2011. {¶16} Subsequent to H.B. 86, R.C. 2929.14(A)(3)(a) provides for a 60 month sentence for F-3 offenders who have 2 or more prior burglary convictions. Without priors, the F-3 maximum sentence is 36 months under R.C. 929.14(A)(3)(b). Muskingum County, Case No. CT2011-0063 5 {¶17} Appellant herein argues that because he was sentenced subsequent to the effective date of H.B. 86, the State was required to specify Appellant s prior burglary convictions in the indictment to enhance the offense. {¶18} Upon review, we find no error in the indictment as such was filed June 1, 2011, prior to the effective date of H.B. 86, and charged Appellant with a violation of second degree felony. It was only pursuant to the negotiated plea agreement that Appellant was offered a reduced charge to third degree felony. {¶19} Furthermore, a review of the transcript from the plea hearing reveals that that Appellant, the State and the trial court were all aware of Appellant s two prior burglary convictions and knew that such priors would be a factor in sentencing. (Plea T. at 4). {¶20} Based on the above facts and the record herein, we find no error in the indictment in this matter and further find that the trial court did not abuse its discretion in sentencing Appellant to 60 months in prison. {¶21} Appellant s sole Assignment of Error is overruled. {¶22} For the foregoing reasons, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed. By: Wise, J. Gwin, P. J., and Hoffman, J., concur. ___________________________________ ___________________________________ ___________________________________ JUDGES JWW/d 0529 Muskingum County, Case No. CT2011-0063 6 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsROBERT L. HILL Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. CT2011-0063 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. ___________________________________ ___________________________________ ___________________________________ JUDGES

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