2006 Ohio 3567 | Ohio Ct. App. | 2006
{¶ 2} On December 4, 2003, a Mahoning County grand jury indicted appellant on one count of receiving stolen property, R.C.
{¶ 3} On February 2, 2004, appellant entered into a Crim.R. 11 plea agreement and agreed to plead guilty to the five counts of receiving stolen property in violation of R.C.
{¶ 4} Sentencing was scheduled for April 1, 2004. The trial court granted appellant a continuance in order for him to pay restitution to the victim. The sentencing hearing was held on April 8, 2004. Appellant failed to pay restitution of $240 to the victim, and the court denied a further continuance of the hearing. The State agreed to remain silent at the sentencing hearing and presented no recommendations for sentencing. Appellant attempted to explain to the court why he had not yet made restitution, stating that his mother had agreed to lend him the money, but that a medical emergency made it impossible. The court then sentenced appellant to "serve a term of one year on each of the five counts in the amended indictment." (April 8, 2004 Tr., p. 11.) He was also ordered to pay restitution to the victim. No mention was made as to whether the prison terms were to be served concurrently or consecutively. The court's subsequent judgment entry of sentencing was also silent on the issue of concurrent or consecutive sentences.
{¶ 5} Appellant appealed his sentence to this Court arguing that it should be vacated because the trial court failed to consider the statutory factors for imposing maximum sentences and failed to specify whether the prison terms were to be served concurrently or consecutively. State v. Christian, 7th Dist. No. 04 MA 64,
{¶ 6} On May 17, 2005, upon remand for resentencing, the trial court sentenced appellant as follows: six months each on counts one and nine to be served concurrently with one another; six months each on counts five and seven, to be served concurrently with one another and consecutively with the term imposed for counts one and nine; six months for count three to be served consecutively with the terms imposed for counts five and seven and counts one and nine. The resulting aggregate sentence was eighteen months. This second appeal now follows.
{¶ 7} Appellant's first assignment of error states:
{¶ 8} "THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES."
{¶ 9} In this case, appellant pleaded guilty to five counts of receiving stolen property in violation of R.C.
{¶ 10} While this appeal was pending, the Ohio Supreme Court held that the provisions of the Revised Code relating to consecutive sentences, R.C.
{¶ 11} The Court went on to hold that the unconstitutional provision could be severed. Id., paragraph four of the syllabus. Since the provisions could be severed, "[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 the minimum sentences." Id., paragraph seven of the syllabus.
{¶ 12} Here, the trial court's imposition of consecutive sentences was based on findings mandated by R.C.
{¶ 13} After State v. Foster,
{¶ 14} "These cases and those pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion. We do not order resentencing lightly. Although new sentencing hearings will impose significant time and resource demands on the trial courts within the counties, causing disruption while cases are pending on appeal, we must follow the dictates of the United States Supreme Court. Ohio's felony sentencing code must protect
{¶ 15} "Under R.C.
{¶ 16} The same day Foster was decided, the Ohio Supreme Court decided a companion case. State v. Mathis,
{¶ 17} "Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing since R.C.
{¶ 18} Accordingly, appellant's first assignment of error has merit.
{¶ 19} Appellant's second assignment of error states:
{¶ 20} "THE TRIAL COURT ERRED IN ITS DECISION TO IMPOSE A PRISON SENTENCE UPON THE DEFENDANT/APPELLANT FOR HIS CONVICTIONS FOR FELONIES OF THE FIFTH DEGREE."
{¶ 21} R.C.
{¶ 22} "[I]n sentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply:
{¶ 23} "(a) In committing the offense, the offender caused physical harm to a person.
{¶ 24} "(b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.
{¶ 25} "(c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.
{¶ 26} "(d) The offender held a public office or position of trust and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others.
{¶ 27} "(e) The offender committed the offense for hire or as part of an organized criminal activity.
{¶ 28} "(f) The offense is a sex offense that is a fourth or fifth degree felony violation of section
{¶ 29} "(g) The offender at the time of the offense was serving, or the offender previously had served, a prison term.
{¶ 30} "(h) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.
{¶ 31} "(i) The offender committed the offense while in possession of a firearm."
{¶ 32} The Ohio Supreme Court also addressed sentencing for fourth and fifth degree felonies in State v. Foster,
{¶ 33} "Community control is the default sentence for felonies of the fourth and fifth degree, except for those identified as mandatory prison offenses. R.C.
{¶ 34} "At first blush, this portion of the statute appears to violate Blakely, but on closer inspection, it does not. If the appropriate findings are made, the court has no discretion and must impose a prison term; however, the statute does not prevent a court from imposing a prison term without these findings. There is no presumption in favor of community control, in other words. If no findings are made under R.C.
{¶ 35} "R.C.
{¶ 36} In this case, the trial court found that under R.C.
{¶ 37} Accordingly, appellant's second assignment of error is without merit.
{¶ 38} Appellant's third assignment of error states:
{¶ 39} "DEFENDANT/APPELLANT'S CONVICTION SHOULD BE VACATED AS HE WAS DENIED HIS RIGHT TO [sic] SPEEDY TRIAL."
{¶ 40} Appellant's original sentencing hearing was conducted on April 8, 2004. At that hearing, appellant's trial counsel stated that appellant had already served over ninety days in jail on this matter. Also, the record reflects that appellant pleaded guilty on February 2, 2004, and was released on a personal recognizance bond. Therefore, appellant deduces that those ninety days must have been served prior to his guilty plea thus violating his right to a speedy trial.
{¶ 41} Initially, as appellee correctly points out, it should be noted that appellant's argument under this assignment of error is waived for two important reasons. First, appellant's guilty plea resulted in a waiver of his right to raise the statutory right to a speedy trial on appeal. State v. Kelley (1991),
{¶ 42} Assuming arguendo that he had properly preserved the issue for appellate review, his argument is unsupported by law.
{¶ 43} The
{¶ 44} Every person who is charged with an offense for which he may be deprived of his liberty or property is entitled to this fundamental right of a speedy trial. State v. Dunlap, 7th Dist. No. 01-CA-124, 2002-Ohio-3178, at ¶ 10. This is so because the right to a speedy trial "`is premised upon the reality that fundamental unfairness is likely in overlong prosecutions.'"State v. Anderson, 7th Dist. No. 02C-O-30, 2003-Ohio-2557, at ¶ 13, quoting Dickey v. Florida (1970),
{¶ 45} Pursuant to R.C.
{¶ 46} This Court construes Ohio's speedy trial statute strictly against the State. State v. Singer (1977),
{¶ 47} Appellant was arrested on November 4, 2003. Thus, appellant's speedy trial clock began running on November 5, 2003. Appellant pleaded guilty on February 2, 2004, the same day that had been set for his trial. This constituted eight-nine days. This was within the ninety days prescribed by law. Therefore, appellant's speedy trial right was not violated.
{¶ 48} Rather, appellant's argument seems to suggest that he was denied a purported right to a speedy sentencing. However, as a general rule, the right to a speedy trial applies to the trial of pending criminal charges, not sentencing. State v. Keeble,
2d Dist. No. 03CA84,
{¶ 49} Accordingly, appellant's third assignment of error is without merit.
{¶ 50} Appellant's fourth assignment of error states:
{¶ 51} "DEFENDANT/APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL."
{¶ 52} Appellant argues that he was denied effective assistance of trial counsel when his trial counsel failed to raise his alleged denial of his right to a speedy trial.
{¶ 53} Again, as appellee correctly points out, it should be noted that appellant's argument under this assignment of error is waived. Appellant's argument could have been assigned as error in his previous direct appeal. Therefore, res judicata applies and bars him from raising it for the first time in this appeal.State v. Gillard,
{¶ 54} Nonetheless, we will proceed to address the merit of this assignment of error assuming arguendo that he had properly preserved the issue for appellate review.
{¶ 55} To prove an allegation of ineffective assistance of counsel, appellant must satisfy a two-prong test. First, appellant must establish that counsel's performance has fallen below an objective standard of reasonable representation.Strickland v. Washington (1984),
{¶ 56} Appellant bears the burden of proof on the issue of counsel's alleged ineffectiveness. State v. Calhoun (1999),
{¶ 57} In this case, as illustrated under appellant's third assignment of error, appellant did not have a viable speedy trial argument to make since he was brought to trial within ninety days. Therefore, appellant cannot establish that his counsel's performance fell below an objective standard of reasonable representation on that basis. Nor can he demonstrate that he was prejudiced by counsel's performance on that basis.
{¶ 58} Accordingly, appellant's fourth assignment of error is without merit.
{¶ 59} The judgment of the trial court is hereby reversed and vacated in part as it relates to appellant's first assignment of error and imposition of consecutive sentences and this matter remanded for resentencing consistent with State v. Foster,
Vukovich, J., concurs.
DeGenaro, J., concurs.