State v. HamiltonState v. Hamilton
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2010 CR 0262.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Leonard J. Breiding, II, 4825 Almond Way, Ravenna, OH 44266 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Gregory A. Hamilton, appeals from a judgment of the Portage County Court of Common Pleas, sentencing him for aggravated trafficking in drugs.
{¶2} Appellant was indicted on three counts of aggravated trafficking in drugs, felonies of the third degree, in violation of
{¶3} Thereafter, appellant withdrew his not guilty plea and entered an oral and written guilty plea to three counts of aggravated trafficking in drugs, felonies of the third degree, in violation of
{¶4} The court sentenced appellant to three years on each of the three counts, to be served consecutively. The court suspended appellant‘s driver‘s license for five years, and ordered him to pay a $5,000 mandatory drug fine, $120 in restitution, and court costs. The court also notified appellant of the discretionary three-year postrelease control period. Appellant filed a timely appeal, asserting the following assignment of error:
{¶5} “The trial court erred in sentencing the appellant by imposing more than the minimum sentence and by imposing an improper sentence.”
{¶6} In his sole assignment of error, appellant argues that the trial court erred by imposing an improper, more than the minimum sentence. He also contends that it
{¶7} Regarding more than the minimum sentences for each particular count,
{¶8} The Foster Court further held that
{¶9} Further, in State v. Greitzer, 11th Dist. No. 2006-P-0090, 2007-Ohio-6721, this court held that a silent record raises a presumption that the trial court considered the purposes of felony sentencing. Id. at ¶26, citing State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus. Moreover, in State v. Cyrus,
{¶10} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court established a two-step analysis for an appellate court reviewing a felony sentence. Id. at ¶26. The court held:
{¶11} “First, [appellate courts] 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 in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” Id. An abuse of discretion is the trial court‘s “‘“failure to exercise sound, reasonable, and legal decision-making.“‘” State v. Sawyer, 11th Dist. No. 2011-P-0003, 2011-Ohio-6098, at ¶72, quoting State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, at ¶62, quoting Black‘s Law Dictionary (8 Ed.Rev.2004) 11.
{¶12} The Kalish court affirmed the sentence of the trial court as not being contrary to law, since the trial court considered the
{¶13} Turning to the first step of the Kalish test, appellant pleaded guilty to three counts of aggravated trafficking in drugs, felonies of the third degree, in violation of
{¶14} The record reflects that the court gave due deliberation to the relevant statutory considerations. Before imposing appellant‘s sentence, the court considered the following at the sentencing hearing: appellant‘s record, which included prior convictions for criminal trespass, criminal damaging, petty theft, possession of cocaine, and conspiracy to distribute or possess with intent to distribute cocaine, and that he violated federal postrelease control; appellant‘s struggle with substance abuse throughout his life; the fact that he used his neighbor‘s pain medication and sold drugs to his neighbor; and appellant‘s purchase of drugs, which took place in front of his minor daughter. The trial judge found that appellant was not amenable to community control sanctions and that a prison term was warranted. The judge told appellant that if he used his time in prison wisely, she may consider releasing him early. However, the judge stated to appellant that he has to show that he has learned his lesson, i.e., that he “finally [has] gotten it.” In addition, the judge told appellant that he was a smart man with the ability to make positive changes but just needs to “turn his mindset around.”
{¶15} Furthermore, the trial court stated in its sentencing entry that it had considered the evidence presented, oral statements, any victim impact statement, the presentence investigation report, and/or appellant‘s statement.
{¶16} The trial court‘s consideration of the foregoing points demonstrates its consideration of the factors in
{¶17} Turning to the second step of the Kalish test, we must determine whether the sentence imposed by the trial court was an abuse of discretion. The record reflects the trial court gave due deliberation to the relevant statutory considerations. As noted above, the trial court considered the purposes and factors of felony sentencing in
{¶18} After reviewing the record, we cannot say the court‘s decision to impose more than the minimum sentences on each count was unreasonable, arbitrary, or unconscionable, pursuant to Kalish‘s abuse-of-discretion standard of review.
{¶19} Regarding consecutive sentences, in Foster, the Ohio Supreme Court held that because
{¶20} The United States Supreme Court in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), subsequently held that the right to a jury trial under the Sixth Amendment to the United States Constitution does not preclude states from
{¶21} Thereafter, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme Court addressed “whether, as a consequence of the decision in Ice, Ohio trial courts imposing consecutive sentences must first make the findings specified in
{¶22} The Hodge court further explained that Foster merely took away a trial judge‘s duty to make findings before imposing consecutive sentences and that Ice did not directly overrule Foster. Hodge, supra, at ¶17, 37. The court indicated that “although the Ice decision holds that it is constitutionally permissible for a judge to engage in judicial fact-finding to impose consecutive sentences, there is no
{¶23} Thus, judges have discretion and inherent authority to impose either concurrent or consecutive sentences without the requirement of specific fact finding. In this case, based upon the previous discussion, the trial judge acted within her discretion and inherent authority in running appellant‘s sentences consecutively rather than concurrently. Hodge, supra, at ¶12.
{¶24} Regarding postrelease control, appellant contends that the trial court failed to inform him that it was mandatory. However, “[p]ostrelease control is discretionary for third degree felonies that are not felony sex offenses, unless during the commission of the offense, the defendant caused or threatened to cause physical harm to a person.” State v. Werber, 8th Dist. No. 90888, 2008-Ohio-6482, at ¶13;
{¶25} For the foregoing reasons, appellant‘s sole assignment of error is not well-taken. The judgment of the Portage County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
MARY JANE TRAPP, J.,
concur.