State v. JohnsonState v. Johnson
{¶ 1} Appellant, Timothy T. Johnson, appeals the sentence imposed by the Ottawa County Court of Common Pleas following a remand from this court for resentencing pursuant to the Ohio Supreme Court‘s ruling in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. For the reasons that follow, we affirm the judgment of the triаl court.
{¶ 2} On August 25, 2005, appellant entered guilty pleas to five drug related fifth degree felony offenses and one count of sexual imposition, а third degree misdemeanor. At sentencing, the lower court reviewed the sentencing factors set forth in R.C.
{¶ 3} Appellant filed a direct appeal to this court. On December 29, 2006, this court remanded the сase for resentencing based on the fact that the trial court had relied on statutory law found to be unconstitutional in Foster. On remand, appеllant was sentenced to 12 months on each drug charge. The court ordered four of the terms to be served consecutively. Appellant was again sentenced to 60 days incarceration for the misdemeanor charge. The remaining drug sentence and the misdemeanor sеntence were ordered to be served concurrently with the four drug sentences. Appellant now appeals setting forth the following аssignments of error:
{¶ 4} “I. A review of the trial court‘s decision to impose maximum and consecutive sentences as to the five felony counts оf the indictment shows by clear and convincing evidence that the Court of Appeals should reduce or otherwise modify the sentence, as the record does not support the sentencing court‘s findings under applicable sections of the Ohio Revised Code, and the sentenсe is otherwise contrary to law.
{¶ 5} “II. The trial court‘s imposition of sentence violates the appellant‘s due process rights and rights pursuant to the ex post facto clause, under the 6th and 14th amendments to the U.S. Constitution.”
{¶ 6} Citing R.C.
{¶ 7} “The appellate court may increase, reduce, or otherwise modify a sentencе that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resеntencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶ 8} “(a) That the record does not support thе sentencing court‘s findings under division (B) or (D) of section
{¶ 9} “(b) That the sentence is otherwise contrary to law.”
{¶ 10} Prior to appellant‘s resentencing, the Ohio Supreme Court decided State v. Foster, supra, which declared certain portions of Ohio‘s sentencing laws unconstitutional as violative of a defendant‘s
{¶ 11} With regard to the standard of our review, even after Foster, an appellate court may not disturb an imposed sentence unless it finds by clear and cоnvincing evidence that the sentence is not supported by the record, or is “otherwise contrary to law.” R.C.
{¶ 12} R.C.
{¶ 13} “(A) Unless otherwise required by section
{¶ 14} “(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any othеr relevant factors, as indicating that the offender‘s conduct is more serious than conduct normally constituting the offense:
{¶ 15} “* * *
{¶ 16} “(7) The offender сommitted the offense for hire or as a part of an organized criminal activity.”
{¶ 17} In sentencing appellant, the court found that apрellant‘s offenses were part of an organized crime activity. Appellant contends that the record does not support this finding. We disagree.
{¶ 18} The record shows that appellant was observed by the Ottawa County Drug Task Force selling drugs in various locations such as in front of businessеs, in parking lots, from a hotel room and out of an automobile. When he was arrested in the hotel room, he was found with $1,275 and 14 grams of cocaine. The charge of sexual imposition arose from the fact that a woman told police that appellant had raped hеr and forced her to help him in his drug transactions by renting a hotel room. We find this to be
{¶ 19} In his second assignment of errоr, appellant claims that the Supreme Court of Ohio‘s remedy to the unconstitutional nature of certain sentencing statutes provided in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, itself violates the federal constitution. This court has repeatedly held that the Foster remedy does not violate the Due Process Clause, the Ex Pоst Facto Clause, or the rule of lenity. See State v. Coleman, 6th Dist. No. S-06-023, 2007-Ohio-448; State v. Barber, 6th Dist. No. WD-06-036, 2007-Ohio-2821; State v. Johnson, 6th Dist. No. L-06-1364, 2007-Ohio-3470; State v. Robinson, 6th Dist. No. L-06-1205, 2007-Ohio-3577; State v. Valenti, 6th Dist. No. WD-07-004, 2007-Ohio-4911. Therefore, appellant‘s second assignment of error is found not well-taken.
{¶ 20} On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Ottawa County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk‘s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Ottawa County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, P.J., Arlene Singer, J., William J. Skow, J. Concur.