State v. FinnState v. Finn
DECISION AND JUDGMENT
Decided: May 7, 2010
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Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Neil S. McElroy, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas which convicted appellant of one count of aggravated burglary and one count of
{¶ 2} Appellant, Eric D. Finn Jr., sets forth the following two assignments of error:
{¶ 3} “1. The trial court erred as a matter of law when it based its sentence on facts that served as the bases for a dismissed charge.
{¶ 4} “2. The trial court erred when it ordered sentences to be served consecutively without making the findings required by State v. Comer which are required again in light of the recent United States Supreme Court ruling in Oregon v. Ice.”
{¶ 5} The following undisputed facts are relevant to the issues raised on appeal. This case stems from two separate indictments against appellant. In case number CR-09-1108, appellant was indicted on two counts of aggravated burglary, in violation of
{¶ 6} On April 6, 2009, in the course of a universal plea agreement, appellant pled no contest to one amended, lesser count of aggravated burglary and the sole count of receiving stolen property. The trial court found appellant guilty. In exchange for these pleas, the remaining burglary charges and an associated firearm specification were dismissed. Appellant was sentenced to five-year and one-year terms of incarceration, to be served consecutively. Timely notice of appeal was filed.
{¶ 7} In his first assignment of error, appellant argues he was improperly sentenced by the trial court, “when it based its sentence on facts that served as the bases for a dismissed charge.” Notably, appellant simultaneously concedes that a trial court acts within its
{¶ 8} We note, as acknowledged by appellant, the trial court acts within its statutory purview in considering and referencing the facts and circumstances of a dismissed charge when sentencing a defendant on a remaining, non-dismissed charge. The record of appellant‘s sentencing in this matter clearly reflects the trial court did not breach the statutory sentencing parameters in considering and referencing compelling
{¶ 9} In appellant‘s second assignment of error, he contends the trial court erred in sentencing him to consecutive sentences without making the former requisite findings of State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165. While appellant concedes these required findings were negated by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, he asserts they have been resurrected by the United States Supreme Court decision of Oregon v. Ice (2009), 129 S.Ct. 711.
{¶ 10} Pertinent, subsequent caselaw does not comport with appellant‘s position. In a recent Third District case, State v. Sabo, 3d Dist. No. 14-09-33, 2010-Ohio-1261, this precise contention was similarly argued. In rejecting the argument, the Third District emphasized that Foster remains binding precedent in Ohio as the Ice decision pertained to Oregon sentencing statutes. More significantly, the court underscored that in the post-Ice Ohio Supreme Court decision of State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, the court unambiguously held, ”Foster did not prevent the trial court from imposing consecutive sentences; it merely took away a judge‘s duty to make findings before doing so.” Accordingly, the Ohio Supreme Court has clearly stated that Foster
{¶ 11} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. ____________________________
JUDGE
Thomas J. Osowik, P.J. ____________________________
Keila D. Cosme, J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.