State v. KingState v. King
JUDGMENT: AFFIRMED
ATTORNEYS FOR APPELLANT
William L. Summers
Summers & Baker Co., L.P.A.
One Chagrin Highlands
2000 Auburn Drive, Suite 200
Beachwood, Ohio 44122
Aaron T. Baker
Aaron T. Baker Co., L.P.A.
P. O. Box 824
Willoughby, Ohio 44096
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant Prosecuting Attorney
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant David King аppeals the sentence the trial court imposed at his resentencing and assigns the following errors for our review:
“I. The trial court violated
Crim.R. 32 whеn there was an unnecessary delay in sentencing the appellant.”
“II. The trial court abused its discretion in sentencing aрpellant to the maximum penalty without considering the overriding purposes of felony sentencing or the mandatory sentencing factors.”
“III. The trial court abused its discretion in sentencing appellant to the maximum period of incarcerаtion without articulating judicially reviewable reasons for imposition of the sentence.”
{¶ 2} Having reviewed the record аnd pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
{¶ 3} On August 25, 2000, the Cuyahoga County Grand Jury issued a 27-count indictment against King. On March 15, 2001, pursuant to a plea bargain, King pleaded guilty to five counts of gross sexual imposition, two counts of rape, and one count of felonious assault. In addition, pursuant to the plea bargain, King agreed to an aggrеgate prison term of 18 years. The trial court accepted the agreed sentence and imposed sentence accordingly.
{¶ 4} Following his conviction and sentence, King filed a myriad of post-conviction motions, including three pеtitions for writs of mandamus, which were denied. State ex rel. King v. Boyko (Apr. 2, 2001), Cuyahoga App. No. 79394; S/O ex rel. King v. Boyko (June 21, 2001), Cuyahoga App. No. 79177; and People ex rel. King v. Boyko, Cuyahoga App. No. 84927, 2004-Ohio-5743.
{¶ 5} On March 25, 2010, King filed a motion for a new sentencing hearing on the grounds that the trial court had failed to state that the five years of postrelease control was mandatory. On May 18, 2010, the trial court convened a hearing, resentenced King to
Criminal Rule 32
{¶ 6} In the first assigned error, King argues the delay between sentencing and resentencing violated Criminal Rule 32.
{¶ 7}
{¶ 8} The circumstances here do not implicate
{¶ 9} To support his position, King cites to our decision in State v. Mack, Cuyahoga App. No. 92606, 2009-Ohio-6460, appeal not allowed 124 Ohio St.3d 1540, 2010-Ohio-1557, 924 N.E.2d 844, but Mack is not applicable to the instant case. In Mack, we held that thе trial court lost jurisdiction to impose sentence when a two-year delay existed between a finding of guilt and pronouncement of sentence.
{¶ 10} In this case, there was not a long delay between the finding of guilt and the pronouncement of sentence. King pleaded guilty in March 2001 and was sentenced immediately. King filed his motion for resentencing in March 2010 and was resentеnced in May 2010.
{¶ 11} In this matter, the trial court did not delay imposing the original sentence. Rather, in this instance, the trial court was required to resentence King because the trial court‘s original sentence failed to state that the five year period of post- release control was mandatory. The trial court had continuing jurisdiction to correct its error and did not violate
Sentence
{¶ 12} Having a common basis in law and fact, we shall simultaneously address King‘s second and third assigned errors. King argues the trial court abused its discretion by imposing a maximum sentence and by failing to articulate its reasons for imposing said sentence. We find nо merit to King‘s assertions.
{¶ 14} A sentence is authorized by law when it is within the statutory range of available sentences. State v. Baker, 6th Dist. No. WD-05-033, 2006-Ohio-3611, ¶5. As a result,
{¶ 15} In the instant case, the record reflects that King pleaded guilty to five counts of gross sexual imposition, third degree fеlonies, and the trial court imposed five-year maximum concurrent prison sentences. King also pleaded guilty to one count of felonious assault, a first degree felony, and the trial court imposed the minimum term of three years in prison. In additiоn, King pleaded guilty to two counts of rape, first degree felonies, and the trial court imposed ten-year maximum conсurrent prison sentences. Further, the trial court ordered the sentences to be served consecutively for an aggrеgate prison term of 18 years. All these sentences were within the statutory range.
{¶ 16} Finally, King and the state made a joint stipulation during the plea hearing that King would be sentenced to an aggregate of 18 years in prison. Since King agreed to
Judgment affirmed.
It is ordered that appellee recover оf appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is orderеd that a special mandate be sent to said court to carry this judgment into execution. The defendant‘s conviction hаving 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
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MELODY J. STEWART, J., and
LARRY A. JONES, J., CONCUR