STATE OF OHIO, Plaintiff-Appellee, vs. NAJEE JONES, Defendant-Appellant.
APPEAL NO. C-110603; TRIAL NO. B-1100702
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 11, 2012
[Cite as State v. Jones, 2012-Ohio-2075.]
J. HOWARD SUNDERMANN, Presiding Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgments Appealed From Are: Affirmed in Part, Sentence Vacated in Part, and Cause Remanded
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
{1} Defendant-appellant Najee Jones appeals his conviction and sentence for three counts of felonious assault, one count of having weapons under disability, and the accompanying firearm specifications. In two assignments of error, Jones challenges the trial court‘s denial of his presentence motions to withdraw his guilty pleas and the length of his prison sentence. Because Jones was sentenced after the effective date of 2011 Am.Sub.H.B. No. 86, which amended
I. Jones‘s Guilty Pleas and Sentences
{2} Jones was indicted for one count of attempted aggravated murder, five counts of felonious assault, one count of carrying a concealed weapon, one count of obstructing official business, one count of having weapons under disability, two counts of trafficking in cocaine, and one count of possession of cocaine. The attempted-aggravated-murder, felonious-assault, trafficking, and possession offenses were accompanied by firearm specifications.
{3} Jones subsequently filed a motion to suppress his post-arrest statements to police, which the trial court denied after a hearing. Jones then withdrew his not guilty pleas and pleaded guilty to three counts of felonious assault and the accompanying firearm specifications, and to one count of having weapons under disability. In exchange for his guilty pleas, the state dismissed the remaining eight charges and firearm specifications.
{4} The trial court ordered a presentence investigation and scheduled Jones‘s sentencing for September 22, 2011. Prior to the sentencing hearing, Jones filed
II. Jones‘s Motions to Withdraw His Guilty Pleas
{5} In his first assignment of error, Jones argues that the trial court abused its discretion in denying his motions to withdraw his guilty pleas.
{6} Whether a motion to withdraw a plea is granted or denied lies within the sound discretion of the trial court. State v. Xie, 62 Ohio St.3d 521, 587 N.E.2d 715 (1992), paragraph two of the syllabus. While the general rule is that a motion to withdraw a guilty plea made prior to sentencing is “to be freely allowed and treated with liberality,” a “defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.” Xie at paragraph one of the syllabus.
{7} In his motions to withdraw his guilty pleas, Jones argued that the trial court had failed to properly inform him of the possible maximum prison term he was facing, and that he was innocent of the offenses. Jones maintained that he had been walking down the street when he saw masked men with guns shoot the three victims.
{8} At the hearing on the motions, the trial court addressed the factors set forth in State v. Fish, 104 Ohio App.3d 236, 239, 661 N.E.2d 788 (1st Dist.1995). The trial court concluded that even though Jones‘s motions were timely and would not prejudice the state, the remaining factors weighed against granting the motions. The trial court stated that Jones had been represented by highly competent counsel; he had been given a full
{9} Because there is no indication in the record that Jones‘s motions to withdraw his guilty pleas were anything other than a “mere change of heart,” which is an insufficient basis upon which a defendant can rely in order to successfully withdraw his guilty pleas, we cannot conclude that the trial court, after a full and impartial hearing, abused its discretion in denying Jones‘s motions to withdraw his guilty pleas. We, therefore, overrule his first assignment of error. See State v. Henderson, 1st Dist. Nos. C-060799 and C-060823, 2007-Ohio-5128, ¶ 6; see also State v. Calloway, 1st Dist. No. C-040066, 2004-Ohio-5613, ¶ 10-17 (holding that the trial court was entitled to conclude that the defendant‘s guilty plea was an admission of his guilt in the absence of facts or inferences to justify his claim of innocence); State v. King, 2nd Dist. No. 19814, 2004-Ohio-262, ¶ 11 (holding that the defendant‘s claims of innocence were not a reasonable or legitimate basis for the withdrawal of his guilty plea in light of his extensive statements to police admitting his guilt).
III. Jones‘s Sentence under Am.Sub.H.B. No. 86
{10} In his second assignment of error, Jones challenges the length of his prison term. He argues that the trial court‘s imposition of a 32 year prison sentence was excessive.
{11} The record reflects that while the trial court held Jones‘s sentencing hearing on September 22, 2011, it did not journalize its judgment entry until October 7, 2011. Although raised by neither Jones‘s counsel nor the state, we note that Am. Sub.H.B. No. 86 was enacted on June 29, 2011, and became effective September 30, 2011. Because a trial court speaks only through its docket and journal entries, Jones
{12} While Am.Sub.H.B. No. 86 made multiple changes to Ohio‘s criminal sentencing scheme, Jones‘s sentence was affected by only two of those changes: (1) the trial court‘s imposition of a five-year prison term for the weapons-under-disability offense and (2) the trial court‘s imposition of consecutive sentences.
A. Reduction in Penalty for Certain F-3 Offenses
{13} Am.Sub.H.B. No. 86 amended
{14} The General Assembly expressly provided in Section 4 of Am.Sub.H.B. No. 86 that the amendments to
{15}
{16} Jones fits within the
B. Consecutive Sentences
{17} In addition to reducing the penalty for the weapons-under-disability offense, Am.Sub.H.B. No. 86 also impacted the trial court‘s imposition of consecutive sentences in this case. Am.Sub.H.B. No. 86 revived the requirement that trial courts make findings before imposing consecutive sentences in
{18} Section 11 of Am.Sub.H.B. No. 86, expressly acknowledges that the Ohio Supreme Court had originally held these findings unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, but that the court later concluded in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, following the United State‘s Supreme Court‘s decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), that its decision in Foster was incorrect.
{19} In Hodge, the Ohio Supreme Court held that “[t]he jury-trial guarantee of the Sixth Amendment to the United States Constitution does not
{20} Am.Sub.H.B. No. 86 did just that by first repealing former
{21}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from the future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by the two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{22} This court has stated that trial courts are not required to use talismanic words as long as the reasons for the sentence are apparent from the record. See State v. Wedge, 1st Dist. No. C-000747, 2001 Ohio App. LEXIS 5949, *18 (Dec. 21, 2001), citing State v. Parsons, 1st Dist. No. C-980900, 1999 Ohio App. LEXIS 5784, *3 (Nov. 26, 1999). Having reviewed the record, including the transcript of the sentencing hearing and the presentence investigation report, we are convinced that the trial court imposed consecutive sentences because it had found that the harm caused by the offenses was so great or unusual that a single prison term would not adequately reflect the seriousness of Jones‘s conduct and that Jones‘s history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime.
{23} The trial court stated during the sentencing hearing that it was imposing the maximum prison term for each offense and ordering them to be served consecutively because Jones, who was only 21 years old, already had an extensive criminal history as an adult, which included three felony and five misdemeanor
IV. Conclusion
{24} We, therefore, sustain Jones‘s second assignment of error only to the extent that the trial court imposed a five-year term for the weapons-under-disability offense, instead of a term within the statutory range. We vacate the sentence for the weapons-under-disability offense and remand this cause to the trial court for resentencing on only that offense. See
Judgment accordingly.
HENDON and CUNNINGHAM, JJ., concur.
Please note: The court has recorded its own entry this date.