State v. GrahamState v. Graham
OPINION
{¶ 1} Defendant-appellant, Robert J. Graham, appeals the June 2, 2004 sentence of the Court of Common Pleas, Union County, Ohio. On April 19, 2004 Graham pled guilty to one count of assault in violation of R.C.
{¶ 2} On July 19, 2003 officers from the Marysville Police Department placed Graham under arrest for operating a vehicle while under the influence of alcohol. Graham resisted arrest by pulling his arms away and striking out at the police officers. He kicked Patrolman Craig Nicol in the left leg, and was then taken to the ground by Patrolman David Nist. Graham landed on Patrolman Nicol‘s right leg and knee, and Nicol verbally indicated that he was in pain. Graham acknowledged that he looked Nicol directly in the eye, and then rolled over his leg and deliberately put pressure on the knee.
{¶ 3} Patrolman Nicol was seriously injured as a result of the incident, and required major knee surgery and extensive rehabilitation. He missed almost four months of work, and incurred medical bills in excess of $43,000.00.
{¶ 4} A bill of information was filed charging Graham with assault in violation of R.C.
{¶ 5} At the change of plea hearing, and again at the sentencing hearing, the prosecutor did recommend the twelve-month prison term. The trial court, however, ignored this recommendation and sentenced Graham to the maximum penalty of eighteen months pursuant to R.C.
The trial court erred when it sentenced the defendant to a maximum sentence for assault.
{¶ 6} An appellate court reviews a trial court‘s imposition of a maximum sentence for a felony conviction based on a “clear and convincing” degree of proof. R.C.
{¶ 7} Graham presents two arguments that the trial court erred in giving him a maximum sentence: (1) the trial court did not inform him before the plea that he was not going to accept the recommendation of the prosecutor, and (2) the trial court did not specifically state its reasons for imposing the maximum sentence.
{¶ 8} Before accepting a guilty plea, Ohio Crim.R. 11(C)(2) requires the trial court to conduct a colloquy with the defendant to determine that he understands the plea he is entering and the constitutional rights he is voluntarily waiving by doing so.
{¶ 9} However, when non-constitutional rights are involved, the Ohio Supreme Court has applied a liberal “substantial compliance” test to determine if the court complied with
{¶ 10} The question before this Court is whether the trial court substantially complied with
(2) In felony cases the court . . . shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with the understanding of the nature of the charges and the maximum penalty involved. . . .
{¶ 11} First, Graham argues that the trial judge has a “duty to inform” the defendant that he will not follow the prosecutor‘s recommendation before accepting a guilty plea. However, Graham cites no legal authority for this proposition. Moreover, “[i]t is well-established that a trial court is not bound to accept a sentence recommendation proffered by the prosecution.” State v. Kitzler, Wyandot App. No. 16-02-06, 2002-Ohio-5253, at ¶ 9 (citing Akron v. Ragsdale (1978), 61 Ohio App.2d 107, 109). Additionally, when a defendant pleads guilty pursuant to an agreement that the prosecutor will recommend a specific term, “that the sentence imposed is not what the defendant hoped or believed it would be affords no basis for the defendant to repudiate his own acts and agreements.” Kitzler, supra at ¶ 9 (citing State v. Cox (Oct. 23, 1990), Ross App. No. 1626, unreported). Thus, the trial court is under no obligation to inform the defendant that it will not follow the sentencing recommendation.
{¶ 12} Accordingly, the trial court substantially complied with the requirements of
{¶ 13} Second, Graham argues that his sentence was invalid because the trial court did not inform him at the sentencing hearing of its reasons for imposing the maximum sentence. Ohio law provides that “a trial court is obligated to make certain findings prior to sentencing a defendant to a maximum sentence.” State v. Martin (1999) 136 Ohio App.3d 355, 358. “[T]he trial court‘s findings under R.C.
{¶ 14} R.C.
Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, [and] upon offenders who pose the greatest likelihood of committing future crimes. . . .
When making a determination under R.C.
{¶ 15} In regards to R.C.
{¶ 16} The court was then required to make a finding under R.C.
{¶ 17} Based on the foregoing, the trial court made the necessary findings required under R.C.
Judgment Affirmed.
Cupp, P.J. and Bryant, J