2006 Ohio 1570 | Ohio Ct. App. | 2006
{¶ 2} On April 6, 2003, defendant and a co-defendant beat fifteen-year-old Anderson Lauderdale to death. Both men were originally indicted on one count each of aggravated murder with prior calculation and design (R.C.
{¶ 3} In November 2003, the state and defendant reached a plea agreement in which defendant agreed to enter a guilty plea to an amended two-count indictment: involuntary manslaughter in violation of R.C.
THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM AND CONSECUTIVE SENTENCE UPON A FIRST TIME OFFENDER WITHOUT COMPLYING WITH THE REQUISITES OF R.C.
{¶ 4} Defendant argues that his sentences must be vacated because the trial court failed to make the findings required by R.C.
{¶ 5} R.C.
A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge. A sentence imposed for aggravated murder or murder pursuant to sections
{¶ 6} Under the statute, "[o]nce a defendant stipulates that a particular sentence is justified, the sentencing judge need not independently justify the sentence." State v. Porterfield,
{¶ 7} As this court recently stated:
where a defendant specifically agrees to accept the maximum sentence, he has essentially conceded that the wrongful conduct at issue satisfies the statutory requirements for imposing the longest prison term, which negates the `category finding' requirement of R.C.
State v. Abney, Cuyahoga App. No. 84190,
{¶ 8} During sentencing in the case at bar, the trial court and defendant engaged in the following colloquy:
THE COURT: Now, having alerted you to what the maximum sentences are for these two new crimes we're talking about here today, I need to pull back and say oh, but Mr. Hammond through his lawyers through the state of Ohio have arranged an agreed sentence.
Now, an agreed sentence is recognized in the law books as the ability to decide what the sentence is going to be in years and how it's going to be served.
And it's my understanding that this is not only a 12 year sentence in prison, it's a 12 year mandatory sentence in prison. That's the agreement.
It's also my understanding that Mr. Rukovena doesn't care how the 12 years is divided between the two felonies, and it's my understanding that the defendant through his counsel would prefer that it be divided up the maximum ten year sentence on the involuntary manslaughter and the minimum two years sentence on the robbery.
Do I have that correct?
MR. GILBERT: Yes.
MR. FRIEDMAN: Correct.
THE COURT: So let's talk about if Mr. Hammond pleads guilty to these two new charges, involuntary manslaughter and the robbery, that when the Court sentences him, should I approve the agreed sentence, that the agreed sentence as you folks have developed it with Mr. Rukovena and Mr. Cahill for the State of Ohio, would be that you be sentenced to a ten year mandatory prison sentence on the involuntary manslaughter and a consecutive, meaning to follow after the ten year sentence, a consecutive two year sentence on that robbery charge.
Understood?
THE DEFENDANT: Yes, your Honor.
THE COURT: That would be the total that you've agreed to of 12 years in prison and a mandatory prison sentence.
From that you will still get day for day credit for all the time you spent in county jail since your arrest on or about April 6th of this year when this event happened.
* * *
So an agreed sentence has the advantage that you avoid a worse sentence, right?
THE DEFENDANT: Yes, your Honor.
THE COURT: I mean if all you did you was plead guilty to these crimes, how many years could I sentence you to?
THE DEFENDANT: 18.
THE COURT: 18. So that agreed sentence says you agree to serve 12 years. It's a mandatory sentence; you agreed to serve it, and you're not eligible for any kind of early release.
You're also not eligible to appeal your sentence. Under certain circumstances people who are sentenced by Common Pleas Court on a felony have the power to take their sentence to the Court of Appeals and appeal it to see if the judge sentenced them properly and so forth.
When you agree to a sentence, you don't have a right to appeal; that's what the statute says, because it says you agreed to it.
Understood?
THE DEFENDANT: Yes, your Honor.
* * *
THE COURT: I am going to approve the agreed sentence reached between the State of Ohio and Mr. Hammond and consistent with the parties' intention, I am going to sentence Mr. Hammond to a maximum sentence of ten years on amended count four, the involuntary manslaughter, felony of the first degree.
I'm going to sentence him to a term on amended count three, robbery, second degree felony to two years in the Lorain Correctional Institution. I'll be journalizing that these are mandatory sentences and it is part of an agreed sentence and therefore Mr. Hammond is not eligible for other early release programs.
Tr. 223-226, 236.2
{¶ 9} From this sentencing transcript, there is no question that not only did defendant, a first-time offender, agree to the sentences he received, he also agreed to forego any appeal of those sentences. The transcript further demonstrates that defendant and the state jointly recommended the sentences imposed by the trial court.
{¶ 10} As we noted above, a sentence jointly recommended by both the defendant and the prosecution and imposed by the sentencing court is not subject to review "if the sentence is authorized by law." R.C.
{¶ 11} In this case, involuntary manslaughter is a first degree felony. The sentencing range for a felony of the first degree is three to ten years. R.C.
{¶ 12} Robbery is a second degree felony which warrants a sentence between two and eight years. R.C.
{¶ 13} Defendant argues, however, that even though he agreed to the sentences he received, those sentences are, nonetheless, not authorized by law. Specifically, defendant argues that, because R.C.
{¶ 14} Recently, the Supreme Court of Ohio, in State v.Foster, ___ Ohio St.3d ___,
{¶ 15} For the foregoing reasons, we conclude that defendant's sentences are not subject to review. Defendant's sole assignment of error is overruled.
Judgment accordingly.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Sweeney, P.J., and Blackmon, J., concur.
11/10/2003 11/17/2003 D DEFENDANT IN COURT WITH COUNSEL TERRY GILBERT AND GORDON FRIEDMAN. PROSECUTING ATTORNEYS GEORGE RUKOVENA AND TOM CAHILL PRESENT. DEFENDANT WAS ADVISED OF ALL CONSTITUTIONAL RIGHTS AND PENALTIES. ON RECOMMENDATION OF THE PROSECUTOR COUNT THREE AMENDED TO READ ROBBERY R.C.
