State v. BanksState v. Banks
Rendered on August 25, 2011
Ron O‘Brien, Prosecuting Attorney, and Susan M. Suriano, for appellee.
Saia & Piatt, Inc., and Jessica G. Fallon, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Defendant-appellant, Guy L. Banks, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. For the following reasons, we affirm that judgment.
Factual and Procedural Background
{¶2} On July 2, 2009, a Franklin County Grand Jury indicted appellant with one count of felonious assault in violation of
{¶3} Appellant withdrew his not guilty plea and entered a guilty plea to one count of felonious assault and the three attendant specifications. The trial court accepted appellant‘s guilty plea and found him guilty. The trial court sentenсed appellant to a four-year prison term for the felonious assault conviction and also imposed a five-year prison term for the drive-by spеcification, a three-year prison term for the firearm specification, and a two-year prison term for the body armor specification. The triаl court ordered all of the prison terms to be served consecutively for a total sentence of 14 years.
{¶4} Appellant appeals and assigns the following error:
THE TRIAL COURT ERRED IN FINDING THAT A PLEA OF GUILTY TO THE BODY ARMOR SPECIFICATION SET FORTH IN THE INDICTMENT REQUIRES A MANDATORY AND CONSECUTIVE TWO-YEAR SENTENCE AT THE OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS.
Assignment of Error — Body Armor Specification Sentencing
{¶5}
{¶6} Appellant now argues that the trial court had discretion whether or not to imposе the two-year prison term for the body armor specification.1 We disagree.
{¶7} We first address our standard of review in this case. The Supreme Court of Ohio has set forth a two-step process for review of a felony sentence: the appellate court first looks to whether the sentence is clearly and convincingly сontrary to law, i.e., whether the sentencing court has complied with all applicable sentencing statutes; if so, the appellate court considers whether the sentencing court abused its discretion in the sentence it imposed. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. However, because Kalish was a plurality opinion, it is of limited precedential effect. State v. Franklin, 182 Ohio App.3d 410, 2009-Ohio-2664, ¶8; State v. DeJoy, 10th Dist. No. 10AP-919, 2011-Ohio-2745, ¶36. In fact, since Kalish, we have аpplied this court‘s prior precedent in which we have limited our review to whether the sentence was clearly and convincingly contrary to law. Id. (citing State v. Allen, 10th Dist. No. 10AP-487, 2011-Ohio-1757).
{¶8} However, appellant did not argue below that the two-year prison term was discretionary. Therefore, appellant has waived all but plain error in this regаrd. Under
{¶9} With thesе standards in mind, we consider appellant‘s assignment of error.
{¶10} Sentencing for an offender found guilty of the body armor specification described in
If an offendеr who is convicted of or pleads guilty to an offense of violence that is a felony also is convicted of or pleads guilty to a specificatiоn of the type described in section 2941.1411 of the Revised Code that charges the offender with wearing or carrying body armor while committing the felony offense of violence, the court shall impose on the offender a prison term of two years. The prison term so imposed shall not be reduced pursuant to sectiоn 2929.20, section 2967.193, or any other provision of Chapter 2967. or Chapter 5120. of the Revised Code. A court shall not impose more than one prison term on an offender under division (D)(1)(d) of this section for felonies committed as part of the same act or transaction. If a court imposes an additional prison term under divisiоn (D)(1)(a) or (c) of this section, the court is not precluded from imposing an additional prison term under division (D)(1)(d) of this section.
{¶11} Appellant pled guilty to a felony offense of violence and a body armor specification. In that situation, pursuant to
{¶12} However, appellant points to a later sentence in
{¶13} Our resolution of this issue cеnters around the interpretation of
{¶14} By its clear language,
{¶15} Appellant argues that the rule of lenity requires that we interpret this provision in his favor. We disagree. Bеcause we conclude that
{¶16} Because the trial court was required to sentence appellant to a two-year prison term for his body armor sрecification conviction, his sentence was not contrary to law and, therefore, not plain error. Accordingly, we overrule appellant‘s аssignment of error.
{¶17} Having overruled appellant‘s assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT, P.J., and TYACK, J., concur.