State v. DavisState v. Davis
BEFORE: Boyle, P.J., Jones, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: March 24, 2011
ATTORNEY FOR APPELLANT
12200 Fairhill Road
B 211
Cleveland, Ohio 44120
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: W. Mona Scott
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} This case came to be heard upon the accelеrated calendar pursuant to
{¶ 2} Defendant-appellant, Ronald Davis, appeals his sentence. He claims that the trial court erred when it sentenced him withоut a presentence investigation report and when it imposed a maximum sentence. Finding no merit to his appeal, we affirm. But as set forth in this opinion, we remand for сorrection of a clerical error in the sentencing entry.
{¶ 3} In May 2010, the grand jury indicted Davis on three counts: one count of robbery, in violation of
{¶ 4} Davis originally pleaded not guilty to the charges, but later withdrew his original plea and pleaded guilty to an amended count of second-degree robbery in violation of
Standard of Review
{¶ 5} Appellate courts must apply a two-step approach when reviewing a defendant‘s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “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 shall be reviewed under an abuse-of-discretion standard.” Id.
Presentence Investigation Report
{¶ 7} At Davis‘s plea hearing, the state indicated that Davis‘s plea was conditioned on his testimony against his codefendant, and furthеr that his testimony must “be consistent with the oral and written statements previously given to the police.”
{¶ 8} After the court accepted Davis‘s plea, it set sentencing for September 14, 2010, and ordered that a presentence investigation report be completed prior to sentencing. But on August 31, 2010, the trial court decided “the presentence investigation report [was] unnecessary” and therefore, it would go forward with sentencing without it.
{¶ 9}
{¶ 10} The trial court here sentenced Davis to the maximum sentence of eight years for his robbery conviction. Therefore, the trial court did not have to wait for the presentence investigation to be completed before sentencing him.
{¶ 11} Davis‘s first assignment of error is overruled.
{¶ 12} Davis argues in his second assignment of error that the trial court erred when it sentenced him to the maximum prison term. Davis contends that “[t]he record does not appear to show clear and convincing proof that an enhanced sentence was necessary.” We disagree.
{¶ 13} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio Supreme Court held that trial 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. at ¶100.
{¶ 14} The Supreme Court explained in Kalish, supra, that “[a]lthough Foster eliminated mandatory judicial fact-finding for upward departures from the minimum, it left intact
{¶ 15}
{¶ 16}
{¶ 17} In Kalish, the Supreme Court also made clear that even after Foster, “where the trial court does not put on the record its consideration of
{¶ 18} After reviewing the record in this case, we find that it supports the inference that the trial court properly сonsidered the factors in
{¶ 20} “THE COURT: Mr. Davis, I just heard you testify. I just heard you mention something about white powdery substance in the victim‘s purse. Where did that little bit оf information come from?
{¶ 21} “DEFENDANT: That‘s what it looked like.
{¶ 22} “THE COURT: And you just threw that out there on your own in the middle of the state‘s case about the victim, huh?
{¶ 23} “DEFENDANT: It wasn‘t the only one — it looked like it might have been talcum рowder, but it looked like powder.
{¶ 24} “THE COURT: Well, you would know powder. Well, Mr. Davis, I have considered the seriousness and recidivism factors and the purposes and principlеs of Senate Bill 2.”
{¶ 25} The trial court then began a review of Davis‘s extensive criminal history, going back to 1985, including an aggravated robbery conviction, several robbery convictions, and drug convictions.
{¶ 26} The trial court then stated:
{¶ 27} “I have considered all of the factors I am required to. You have a very high risk of recidivism. It‘s clear that you will commit another robbery if given the chance.
{¶ 29} The trial сourt then sentenced Davis to the maximum term of eight years and imposed a period of three years of mandatory postrelease control. We find no errоr or abuse of discretion in this sentence.
{¶ 30} We note, however, that although the trial court correctly informed Davis at his sentencing hearing that he would be subject to thrеe years of mandatory postrelease control, it incorrectly stated in the sentencing entry that postrelease control was part of Davis‘s sentence for a period of “up to three years.” We find this to be a clerical error and remand for correction of the sentencing entry.
Judgment affirmed. Sentencе affirmed but case remanded for correction of clerical error in sentencing entry.
It is ordered that appellee recover of appellаnt costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J., CONCUR