STATE OF OHIO v. STACY Y. LEE
Case No. 13CA42
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
Released: 10/27/2014
[Cite as State v. Lee, 2014-Ohio-4898.]
Hoover, J.
DECISION AND JUDGMENT ENTRY
Stephen H. Eckstein, Washington Court House, Ohio for Appellant.
James Schneider, Washington County Prosecuting Attorney and Alison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio for Appellee.
Hoover, J.:
{¶ 1} Appellant-defendant Stacy Y. Lee appeals her conviction and sentence from the Washington County Court of Common Pleas. Lee pled guilty to one count of Tampеring With Drugs, a third degree felony, in violation of
{¶ 2} On August 3, 2012, the Washington County Sherriff’s department executed a search warrant on the residence of Russell Burkhammer. Appellant Lee was present at the residence at the time of the police search. As a result of the search, Burkhammеr and Lee were
{¶ 3} Lee filed a motion to suppress the statements collectеd during the police search as well as the property seized. During the hearing on the motion to suppress, a digital recording of the conversation between Burkhammer, Lee аnd Lieutenant Joshua Staats was played. The conversation went as follows:
***
JS [Lt. Staats]: And spoon.
KH: And a spoon in a bag.
RB[Burkhammer]: I don’t know nothing about that, sir. I just got my house back --
JS: She ain’t been Mirandized yet, either, Brian.
RB: You can check all my arms and my legs. I don’t -- I don’t like neеdles.
SL[Lee]: Anything like that belongs to me.
JS: What, needles?
SL: You know --yes, he knows nothing about --
JS: I’m going to read you your rights first, before you start blabbing here, even though you’ve been through it 25 fucking times.
SL: (Inaudible).
JS: You have the right to remain silent. Anything you say --
(Unintelligible by voice in background.)
Do you understand your rights?
(Pause.)
JS: You. Yes or no?
SL: I’m sorry. I thought you were speaking to him.
JS: You understand your rights?
SL: Yes, I do.
{¶ 4} The trial court denied the motion to suppress. On June 5, 2013, Lee entered a plea of guilty to one count of Tampering with Drugs, a third degree felony, in violation of
Making it less -- recidivism less likely, none of the statutory factors are present.
Seriousness factors, the non-serious, I don’t really see any of those.
And violence factors, I think she was under supervision at the time this offense was committed. That’s also listed as a violence factor.
And nonviolent, did not have a firearm.
***
So she has prior felonies, and she’s not followed the rules of supervision. Honestly, this Court does not believe thаt Ms. Lee is presently amenable to community control and prison is consistent with the purposes of
2929.11 . You are sentenced to imprisonment at the Ohio Reformatory for Woman at Marysville, Ohio, for a definite sentence of 24 months. You are to receive a credit for six daysjail you’ve already served and any time you remain in the county jail, pending transportation to the institution.
The trial court sentenced Lee to 24 months in prison. Lee now presents this timely appeal.
Appellant’s First Assignment of Error:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-APPELLANT’S MOTION TO SUPPRESS STATEMENTS
{¶ 5} In her first assignment of error, Lee argues that Lt. Staats should have read the Miranda rights to her again after it was clear she had not been paying attention during the time Lt. Staats read them. Lee contends that the state failed to carry its burden of ensuring she fully undеrstood her Miranda rights before her waiver was accepted.
{¶ 6} However, because Lee entered a guilty plea, she has forfeited her right to appeal the trial сourt’s decision on the motion to suppress. State v. Jacobson, 4th Dist. Adams No. 01CA730, 2003-Ohio-1201, ¶ 10; see also Huber Hts. v. Duty, 27 Ohio App.3d 244, 500 N.E.2d 339 (2nd Dist.1985); State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus (stating that a guilty plea “waives all appealable errors which may have occurred * * * unless such errors are shown to have precluded the defendant from voluntarily entering into his or her plea.”). In exchange for Lee entering a guilty plea, the State agreed to recommend a prison sentence of 24 months. The State also agreed not to oppose judicial release after 12 months in exchange for Lee’s guilty plea. Lee makes no argument that her plea was not voluntarily entered. Therefore, we must overrule Lee’s first assignment of error.
Appellant’s Second Assignment of Error:
THE TRIAL COURT ERRED IN IMPOSING A TWENTY-FOUR MONTH SENTENCE
{¶ 8} “Generally, when reviewing felony sentences, we apply the standard of review set forth in
{¶ 9} Although Kalish may not provide the standard of review framework for reviewing felony sentences, it does provide guidance for determining whether a sentence is clearly and convincingly contrary to law. See State v. Lee, 12th Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 10. According to Kalish, a sentence is not clearly and convincingly contrary to law when the triаl court considered the purposes and principles set forth in
(C)The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduct is less serious than conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong provocation.
(3) In committing the offense, the offendеr did not cause or expect to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender‘s conduct, although the grounds аre not enough to constitute a defense.
Lee asserts that the factors in
{¶ 10} Here, it is clear that the trial court considered the factors listed in
{¶ 12} Having оverruled both of Lee’s assignments of error, the judgment of the Washington County Court of Common Pleas is affirmed.
JUDGMENT AFFIRMED.
STATE OF OHIO v. STACY Y. LEE
Case No. 13CA42
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds therе were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of thе expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal рeriod pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration оf sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.