State v. LeeState v. Lee
For Plaintiff-Appellee: D. MICHAEL HADDOX 0004913 Muskingum County Prosecutor, 27 N. Fourth St., Zanesville, Ohio 43701. ROBERT L. SMITH 0039297 Assistant Prosecuting Attorney (Counsel of Record)
For Defendant-Appellant: EMILY STRANG TARBERT 0083153, 825 Adair Ave., Zanesville, Ohio 43701
{¶1} Defendant-Appellant, G. Michael Lee, appeals from his convictions of one count of robbery, a felony of the third degree, one count оf theft, a felony of the fourth degree, and his subsequent jointly recommended sentence. The State of Ohio is Plaintiff-Appellee.
{¶2} On August 20, 2008, Appellant was indicted on one count of robbery, a felony of the second degree, in violation of
{¶3} Subsequent to his indictment, Appellant engaged in plea negotiations with the State, wherein he agreed to рlead guilty to the indictment in exchange for the State‘s recommendation that he serve an aggregate term of five years in prison on those charges.
{¶4} On October 14, 2008, Appellant appeared at а plea hearing in the trial court and entered a guilty plea to the indictment. After a
{¶5} On November 24, 2009, Appellant appeared before the court for a sentencing hearing. Prior to imposing sentence, the trial court sua sponte amended the robbery charge from a felony of thе second degree to a felony of the third degree and explained that the court wanted to make sure that Appellant received the same accommodation that was afforded to his co-defendant, who pled guilty to robbery, a felony of the third degree. Neither the State or Appellant and his counsel objected to this amendment.
{¶7} Appellant raises two Assignments of Error:
{¶8} “I. THE DEFENDANT-APPELLANT‘S SENTENCE IS CONTRARY TO LAW.
{¶9} “II. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS.”
I.
{¶10} In his first assignment of error, Appellant argues that the trial court erred in imposing what amounted to a maximum sentence for his conviction of robbery, a felony of the third degree. We disagree.
{¶11} The sentence imposed by the trial court was a jointly recommended sentence by the parties.
{¶12}
{¶13} “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 thе case, and is imposed by a sentencing judge.”
{¶14} This Court has previously addressed challenges to jointly recommended sentences. In State v. Rockwell, 5th Dist. No. 2004CA00193, 2005-Ohio-5213, the defendant pled guilty to his indictment and agreed that the prosecution would recommend an aggregate sentence of twenty years. The trial court in Rockwell adopted the recommendation and sentenced him to twenty years in prison. The defendant challenged his sentence and contended that the trial court erred because it did not
{¶15} This Court, in rejecting Rockwell‘s arguments, stated as follows:
{¶16} “Upon review, we find that the trial court imposed the agreed upon sentence and that the sentence did not exceed the maximum sentence. Furthermore, in such cases, there is no need to make the findings required under
{¶17} “In short, we find that appellant was sentenced in accordance with a jointly recommended sentence that was authorized by law. Apрellant‘s sentence, therefore, is not subject to review.” Rockwell, supra at ¶¶ 20-21.
{¶18} Where the record indicates that a defendant freely and knowingly entered into a plea agreement and a jointly recommended sentenсe, and the trial court imposes that sentence which is authorized by law, the sentence is not subject to appellate
{¶19} In the present case, it is clear that Appellant agreed to the jointly recommended sentence in exchange for his plea. The following colloquy occurred:
{¶20} “Mr. Smith: Thank you, Your Honor. This is the case of State of Ohio versus G. Michael Lee, Case No. CR2008-0207. This matter comes on before the Court on a change of plea. It‘s my understanding that the defendant is here in court with his attorney, Mr. Rankin, and after speaking with him, he‘s agreed to withdraw his former pleas of not guilty and enter pleas of guilty to this indictment which сharges him with one count of robbery, a felony of the second degree, and one count of theft, a felony of the fourth degree.
{¶21} “It‘s my understanding that in exchange for these change of pleas, the defendant is willing to plead guilty, and the State would recommend as follows: That he receive a five-year prison sentence on Count 1, and an 18-month prison sentence on Count 2, these sentences to run concurrent with one another.
{¶22} “The defendant is currently under post-release control in connection with Case No. CR2007-0224. The State‘s agreed to recommend that he receive an additional one-year prison sentence on that case, and he has agreed to accept the State‘s recommendation in that case.
{¶23} “As part of this agreement, he‘s agreed to cooperate in the prosecutiоn of Troy Murphy regarding two robberies that occurred in Muskingum County at Century National Bank branches on July 9th and July 14th of this year. And he‘s also agreed to accept the Court‘s order to pay restitution to his victims in this case.
{¶25} “The Court: Thank you. Mr. Rankin.
{¶26} “Mr. Rankin: Thank you, Your Honor. If it please the Court, Mr. Smith‘s statements are entirely correct. That is my understanding of the plea agreement, and I have explained that to my client as well as reviewed the plea of guilty form which explains to him his constitutional rights in this matter, and I‘m satisfied that he understands his rights and charges against him and is willing to change his plea here today.
{¶27} “The Court: Thank you. Mr. Lee, did you hear the statements made by Mr. Smith and by your attorney?
{¶28} “The Defendant: Yes.
{¶29} “The Court: Is that your understanding of what you‘re here to do today?
{¶30} “Yes.
{¶31} * * *
{¶32} “The Court: The State of Ohio is recommending that you receive a five-year sentence in this case, a one-year sentence to be served consecutive to that on your PRC, for a total of six year; is that your understanding?
{¶33} “The Defendant: Yes.
{¶34} * * *
{¶35} “The Court: You understand that the prosecutor‘s recommendation is not binding on the Court, I do not have to follow it?
{¶36} “The Defendant: Yes.”
II.
{¶38} In his second assignment of error, Appellant claims that his due process rights were violated because the charge, but not the sentence, was reduced at sentencing. We disagree.
{¶39} Appellant appears to be complaining about a benefit that he received, to wit: that the trial court, without а legal reason, reduced his already entered guilty plea from that of a felony two to that of a felony three robbery. The trial court, however, continued to abide by the joint recommendation, which wаs a sentence of five years in prison on the new charges. Appellant asserts that he would not have pled guilty if he had known he would have been sentenced to the “maximum” sentence. We would note that fivе years is not the maximum sentence that Appellant could have received, as he was also convicted of a fourth degree felony theft, which he was ordered to serve concurrently with the five yeаr robbery sentence. A maximum sentence on these charges would have been six and a half years.
{¶40} Moreover, there is no objection by trial counsel in the record to this downward amendment of the charge. As such, we find that Appellant waived any argument that he could have made regarding this beneficial reduction in charge.
{¶42} Had Appellant not accepted the joint recоmmendation and the terms of the plea, it is very likely that he would have proceeded to trial on second and fourth degree felony charges, and had he been convicted, he would have been facing a maximum of nine years in prison plus whatever the court wished to impose on his post-release control violation. We do not see how Appellant‘s due process rights were violated where he аgreed to a particular plea and sentence.
{¶43} Moreover, Appellant has cited no case law demonstrating that he has been subjected to a due process violation. As such, we find no suрport for his argument and therefore his second assignment of error is overruled.
By: Delaney, J.
Gwin, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS