State v. DiMicheleState v. DiMichele
For Plaintiff-Appellee Thomas R. Straus, County Prosecuting Attorney, Jane M. Hanlin, Assistant Prosecuting Attorney, 16001 State Route 7, Steubenville, Ohio 43952
For Defendant-Appellant Attorney Peter Horvath, 38294 Industrial Park Road, P.O. Box 501, Lisbon, Ohio 44432
{¶1} Defendant-appellant, Vincent DiMichele, appeals from a Jefferson County Common Pleas Court judgment convicting him of two counts of gross sexual imposition and sentencing him to eight years in prison, following his guilty plea to the charges.
{¶2} On December 5, 2007, a Jefferson County grand jury indicted appellant on three counts of rape, first-degree felonies in violation of
{¶3} On April 14, 2008, appellant entered into a plea agreement with plaintiff-appellee, the State of Ohio. Pursuant to the agreement, the state moved to amend the indictment by entering a nolle prosequi to the three rape counts and to two of the gross sexual imposition counts. In exchange, appellant entered a guilty plea to the remaining two counts of gross sexual imposition.
{¶4} Subsequently, on May 1, 2008, the trial court sentenced appellant to four years in prison on each count to be served consecutively for a total of eight years. It also found appellant to be a tier II sex offender.
{¶5} Appellant filed a notice of appeal and a motion for a delayed appeal on August 17, 2009. This court granted his motion for delayed appeal by judgment entry dated September 16, 2009.
{¶6} Appellant raises three assignments of error. However, his first assignment of error encompasses his second and third assignments of error. Therefore, we will address the three assignments of error together. They state, respectively:
{¶7} “THE TRIAL COURT SENTENCED THE DEFENDANT TO A DISPROPORTIONATE AMOUNT OF TIME, WHEN THERE ARE MITIGATING FACTORS UNDER
{¶9} “WHETHER ANY DEFERENCE WAS GIVEN TO THE APPELLANT‘S MITIGATING FACTORS IN THE SENTENCING.”
{¶10} Appellant makes one very short argument in support of all three assignments of error. He simply quotes various sentencing statutes. He then argues that the trial court erroneously found that his offenses carried a presumption of prison time. And he points out that he has no other criminal history. Appellant also suggests that his sentence is too harsh given his crimes.
{¶11} Our review of felony sentences is a limited, two-fold approach, as outlined by the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26. First, we 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.” Id. (O‘Connor, J., plurality opinion). In examining “all applicable rules and statutes,” the sentencing court must consider
{¶12} Further, a sentencing court has “full discretion” to sentence an offender within the statutory range and is no longer required to make findings or give its reasons for imposing non-minimum, maximum, or consecutive sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus.
{¶13} The trial court‘s judgment entry states in part: “The court finds under
{¶14}
{¶15} “Except as provided in division (D), (E), (F), or (G) of this section, in determining whether to impose a prison term as a sanction for a felony of the third degree or a felony drug offense that is a violation of a provision of Chapter 2925. of the Revised Code and that is specified as being subject to this division for purposes of sentencing, the sentencing court shall comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code.”
{¶16} As referenced in
{¶17} “Except as provided in division (E) or (F) of this section, for a felony of the first or second degree, for a felony drug offense that is a violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, and for a violation of division (A)(4) or (B) of section 2907.05 of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code. Division (D)(2) of this section does not apply to a presumption established under this division for a violation of division (A)(4) of section 2907.05 of the Revised Code.” (Emphasis added.)
{¶18} Appellant was convicted of two counts of gross sexual imposition in violation of
{¶19} But this language was not added to
{¶21} “(2) Gross sexual imposition committed in violation of division (A)(4) or (B) of this section is a felony of the third degree. Except as otherwise provided in this division, for gross sexual imposition committed in violation of division (A)(4) or (B) of this section there is a presumption that a prison term shall be imposed for the offense.” (Emphasis added.)
{¶22} Like the language in
{¶23} Similarly at issue in State v. Kepiro, 10th Dist. No. 06AP-1302, 2007-Ohio-4593, was which version of
{¶24} “[A]ppellant is arguing that the prosecution failed to prove that he committed the alleged acts after the statute at issue was amended on July 1, 1996. We agree. Furthermore, because the old and amended versions of
{¶25} The same rationale applies here. Because the trial court improperly applied the wrong statutory presumption in favor of prison, the sentence is contrary to law and must be reversed. See Kalish, 120 Ohio St.3d at ¶4. This does not mean a
{¶26} This issue is contained in appellant‘s first and second assignments of error. Accordingly, his first and second assignments of error have merit. Based on this analysis, appellant‘s third assignment of error alleging that the trial court failed to consider mitigating factors in sentencing him is moot.
{¶27} For the reasons stated above, appellant‘s sentence is hereby reversed and the matter is remanded for resentencing.
Vukovich, P.J., concurs.
Waite, J., concurs.