State v. ArnoldState v. Arnold
For Plaintiff-Appellee
RON WELCH Assistant Prosecuting Attorney 27 North Fifth Street Zanesville, Ohio 43701
For Defendant-Appellant
VINCENT C. RUSSO 44 South 6th Street P.O. Box 970 Zanesville, Ohio 43702-0970
Edwards, P.J.
{¶1} Appellant, Jason Arnold, appeals a judgment of the Muskingum County Common Pleas Court convicting him of possession of drugs (
STATEMENT OF FACTS AND CASE
{¶2} On March 16, 2009, several police officers went to 725 Bates Street in Zanesville, Ohio, to locate appellant pursuant to an outstanding warrant for his arrest. The officers found appellant in a trailer at the address on the warrant. Appellant attempted to avoid detection and move past the officers through the trailer. When appellant was told he was under arrest, he failed to comply and ultimately he was “tased.” During a search incident to the arrest, officers found appellant to be in possession of 3.8 grams of cocaine, 11.8 grams of crack cocaine and a loaded .25 caliber semiautomatic handgun.
{¶3} Appellant was charged by bill of information with possession of drugs (
{¶4} “I. THE TRIAL COURT ERRED BY FAILING TO MAKE THE REQUISITE FINDINGS OF FACT TO SUPPORT THE IMPOSITION OF A CONSECUTIVE SENTENCE, PURSUANT TO
{¶5} “II. THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN SENTENCING JASON M. ARNOLD TO MAXIMUM AND CONSECUTIVE SENTENCES.”
I
{¶6} Appellant 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, it is necessary that Ohio trial courts return to the statutory 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. In Foster, the Ohio Supreme Court declared portions of
{¶7} In State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, the Ohio Supreme Court 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 on its decision in Foster, as neither party in Elmore had briefed the issue prior to oral argument.
{¶8} 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.
{¶9} This Court has previously held that Ice represents a refusal to extend the impact of the Apprendi and Blakely line of cases, rather than an overruling of these cases as suggested by appellant. State v. Argyle, Delaware App. 09 CAA 09 0076;
{¶10} In State v. Smith, Licking App. No. 09-CA-31, 2009-Ohio-6449, this Court recognized that the Ohio General Assembly amended
{¶11}
{¶13} Where an act is amended, the part that remains unchanged is to be considered as having continued in force as the law from the time of its original enactment, and new portions are to be considered as having become the law only at the time of the amendment. Id. at 194.
{¶14} The Stevens court concluded that for the General Assembly to have successfully reenacted
{¶15} The court noted that the editor’s comment in Baldwin’s Ohio Revised Code Annotated to Section 15, Article II of the Ohio Constitution states that while that section of the Constitution requires that an act repeal an amended section,
{¶16} H.B. No. 130 amended
{¶17} Therefore, the amendment of
{¶18} The first assignment of error is overruled.
II
{¶19} In his second assignment of error, appellant argues that the court abused its discretion in sentencing him to maximum and consecutive sentences. We note at the outset that the only conviction for which appellant received the maximum sentence was Count 2, possession of drugs as a fifth degree felony, for which he received a sentence of one year.
{¶20} The Ohio Supreme Court’s Foster decision explicitly vests power with the trial court to impose consecutive sentences. “[T]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than minimum sentences.” State v. Foster, 109 Ohio St.3d at 30, 845 N.E.2d 470.
{¶21} 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 Foster, as it relates to the remaining sentencing statutes and appellate review of felony sentencing. In Kalish, the court discussed the effect of the Foster decision on felony sentencing. The Kalish court stated that, in Foster, the court severed the judicial fact-finding portions of
{¶22} “Thus, despite the fact that
{¶23} 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; Foster, supra.
{¶24} 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
{¶25}
{¶26} “A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶27} “(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶28}
{¶30} “(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender’s conduct is more serious than conduct normally constituting the offense:
{¶31} “(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
{¶32} “(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
{¶33} “(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.
{¶34} “(4) The offender’s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
{¶36} “(6) The offender’s relationship with the victim facilitated the offense.
{¶37} “(7) The offender committed the offense for hire or as a part of an organized criminal activity.
{¶38} “(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
{¶39} “(9) If the offense is a violation of section
{¶40} “(C) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender’s conduct is less serious than conduct normally constituting the offense:
{¶41} “(1) The victim induced or facilitated the offense.
{¶42} “(2) In committing the offense, the offender acted under strong provocation.
{¶43} “(3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property.
{¶45} “(D) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes:
{¶46} “(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section
{¶47} “(2) The offender previously was adjudicated a delinquent child pursuant to Chapter
{¶48} “(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter
{¶49} “(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has
{¶50} “(5) The offender shows no genuine remorse for the offense.
{¶51} “(E) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes:
{¶52} “(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child.
{¶53} “(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense.
{¶54} “(3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years.
{¶55} “(4) The offense was committed under circumstances not likely to recur.
{¶56} “(5) The offender shows genuine remorse for the offense.”
{¶57} Appellant argues that the court abused its discretion in applying the statutory factors because he was found in the possession of the drugs while in a private residence and not in public, and there is no indication in the record that the drugs were intended for anything other than personal use. Similarly, he argues that the weapons were in his possession in a private residence and not in public. He argues that he did not cause any harm to person or property in committing the offenses, had demonstrated remorse before the court, and had recently found out he was the father of a child.
{¶58} Appellant has not demonstrated that the court abused its discretion in the sentences, which were within a lawful range. The record of the sentencing hearing
{¶60} The judgment of the Muskingum County Common Pleas Court is affirmed.
Hoffman, J., concurring
{¶61} I concur in the majority’s analysis and disposition of both of Appellant’s assignments of error.
{¶62} I write separately only to note my retreat from the decisions I authored for this Court in State v. Vandriest, 2010-Ohio-997, and State v. Smith, 2009-Ohio-6449, based upon the majority’s persuasive analysis concerning the effect of legislative amendments.
By: Edwards, P.J.
Hoffman, J. and
Farmer, J. concur
JUDGES
JAE/r0217
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to appellant.
JUDGES