State v. ArgyleState v. Argyle
For Plaintiff-Appellee
DAVID A. YOST
PROSECUTING ATTORNEY
BRENDA LEIKALA
ASSISTANT PROSECUTOR
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
For Defendant-Appellant
WILLIAM T. CRAMER
470 Olde Worthington Road
Suite 200
Westerville, Ohio 43082
Wise, J.
{¶1} Defendant-Appellant Lee A. Argyle appeals his sentence entered in the Delaware County Court of Common Pleas following a plea of guilty to nineteen counts of theft.
{¶2} Plaintiff-Appellee is the State of Ohio.
{¶3} This case comes to us on the accelerated calendar.
{¶4} “(E) Determination and judgment on appeal. The appeal will be determined as provided by
{¶5} This appeal shall be considered in accordance with the aforementioned rule.
STATEMENT OF THE FACTS AND CASE
{¶6} The relevant facts are as follows:
{¶7} Defendant-Appellant Lee Argyle and two co-defendants were indicted following a string of nineteen residential burglaries which occurred between October, 2008, and December, 2008.
{¶8} The indictment charged Appellant and co-defendants with 52 counts including burglary, theft and receiving stolen property.
{¶9} Appellant entered a plea of guilty to nineteen (19) counts of theft ranging from first degree misdemeanors to third degree felonies. In exchange for his guilty plea,
{¶10} Following a pre-sentence investigation, the trial court sentenced Appellant to minimum terms of one year on each of the third degree felonies and the minimum terms of six (6) months on each of the fourth and fifth degree felonies. The trial court sentenced Appellant to maximum six (6) month terms of the remaining misdemeanor counts. The trial court ordered that each of the sentences were to run concurrent, with the exception of the misdemeanor counts and one of the fourth degree felonies, for a total sentence of ten (10) years.
{¶11} Appellant now raises the following assignments of error on appeal:
ASSIGNMENTS OF ERROR
{¶12} “I. THE TRIAL COURT VIOLATED DUE PROCESS AND
{¶13} “II. THE TRIAL COURT VIOLATED DUE PROCESS AND ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES.”
I., II.
{¶14} We shall address Appellant’s assignments of error simultaneously as each assigns error to the trial court’s imposition of consecutive sentences.
{¶15} Appellant argues that it was error for the trial court to order his sentences to be served consecutive to one another.
{¶16} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio, in striking down parts of Ohio‘s sentencing scheme, held “[t]rial courts have full discretion to impose a prison
{¶17} Recently in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, as it relates to the remaining sentencing statutes and appellate review of felony sentencing.
{¶18} In Kalish, the Court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the judicial fact-finding portions of
{¶19} “Thus, despite the fact that
{¶20} Therefore, Kalish holds that, in reviewing felony sentences and applying Foster to the remaining sentencing statutes, the appellate courts must use a two-step approach. “First, they must 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. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment shall be reviewed under an abuse of discretion standard.” Kalish at paragraph 4; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶21} The Supreme Court held, in Kalish, that the trial court‘s sentencing decision was not contrary to law. “The trial court expressly stated that it considered the purposes and principles of
{¶23} In State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, the Ohio Supreme Court recently 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. However, the Ohio Supreme Court did not therein discuss all of the ramifications of Ice, as neither party in Elmore had briefed the issue prior to oral argument.
{¶24} In State v. Mickens, Franklin App.No. 08AP-743, 2009-Ohio-2554, the Tenth District Court of Appeals indicated that judicial review of some of Ohio‘s current sentencing statutes might be necessary in light of Ice. Id. at ¶ 25. However, the court was unwilling to tamper with the Foster holding, concluding that “such a look could only be taken 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.” Id. Accord State v. Crosky, Franklin App.No. 09AP-57, ¶ 7, citing State v. Robinson, Cuyahoga App.No. 92050, 2009-Ohio-3379, ¶ 29; State v. Krug, Lake App.No.2008-L-085, 2009-Ohio-3815, f.n.1.
{¶25} At this juncture, we find that Ice represents a refusal to extend the impact of the Apprendi and Blakely line of cases, rather than an overruling of them as
{¶26} Here, Appellant entered a plea of guilty to nineteen counts of theft. The trial court sentenced Appellant within the permissible statutory range for the offenses. See,
{¶27} At the July 31, 2009, sentencing hearing, the trial court stated that it reviewed the pre-sentence report, the victim impact statements and the principles and purposes of the felony sentencing statutes. The trial court also stated that it considered the serious economic harm caused in these cases and the fact that Appellant was in possession of a firearm. Additionally, in support of ordering consecutive sentences, the trial court stated that each one of the burglaries committed was serious in and of itself and that Appellant deserved to be punished on each of those burglaries.
{¶28} In its Judgment Entry of Sentence, the trial court reiterated its consideration of the record, oral statements, victim impact statements, pre-sentence report and the principles and purposes of sentences, as well as the seriousness and recidivism factors under
{¶30} Appellant‘s first and second assignments of error are overruled.
{¶31} For the foregoing reasons, Appellant‘s sentence in the Court of Common Pleas, Delaware County, Ohio, is affirmed
By: Wise, J.
Edwards, P. J., and
Delaney, J., concur.
/S/ JOHN W. WISE___________________
/S/ JULIE A. EDWARDS_______________
/S/ PATRICIA A. DELANEY____________
JUDGES
JWW/d 111
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
Costs assessed to Appellant.
/S/ JOHN W. WISE___________________
/S/ JULIE A. EDWARDS_______________
/S/ PATRICIA A. DELANEY____________
JUDGES