State v. MacOnState v. MacOn
OPINION
{¶ 1} Dеfendant-appellant, Sabrina Macon (“appellant“), appeals from the judgment of the Franklin County Court of Common Pleas sentencing her to serve, at the Ohio Department of Rehabilitation and Corrections, sevеn years on count one of the indictment, consecutive with 12 months on count 28, and ten months on counts two, three, four and six, all to be served concurrent with each other and concurrent to counts one and 28.
{¶ 2} On June 27, 2001, appеllant, and her co-defendant, Miss Baker, flew into Franklin County, Ohio from Florida. The pair obtained some stolen credit cards from various places, including offices located at Riverside Hospital and The Ohio State University campus area. These stolen credit cards were used at various stores and shopping malls in Franklin County to purchase a number of items, including notebook computers and video game systems. Appellant and Miss Baker returned tо Florida with the property. On August 15, 2001, they returned to Franklin County, Ohio after obtaining some stolen credit cards from the Cincinnati, Ohio area. Again, the pair purchased several thousands of dollars worth of property from a number of stоres. Security personnel at a Target store recognized the two women and informed the police. The license plate number of the car that the two women were in was traced to a Hertz car rental agency at the airport. Appellant and Miss Baker were apprehended at an airport hotel with the rental van that contained the stolen property and the stolen credit cards.
{¶ 3} On March 3, 2003, appellant was indicted on 28 counts, including one count of engaging in a pattern of corrupt activity, 18 counts of receiving stolen property and nine counts of misuse of credit cards. On October 4, 2004, appellant pled guilty to one count оf engaging in a pattern of corrupt activity, a second-degree felony, two counts of receiving stolen property, fifth-degree felonies, two counts of misuse of a credit card, fifth-degree felonies, and one сount of receiving stolen property, a fourth-degree felony.
{¶ 4} After a sentencing hearing on January 20, 2005, the trial court ordered appellant to serve seven years on count one of the indictment, consecutivе with 12 months on count 28, and ten months on counts two, three, four and six, all to be served concurrent with each other and concurrent to counts one and 28. Appellant timely appealed.
{¶ 5} On appeal, appellаnt raises the following two assignments of error:
Assignment of Error No. 1:
The trial court erred in imposing non-minimum, consecutive sentences on Appellant where the facts necessary to impose such sentences had neither been proven to a jury nor admitted by Appellant, thereby depriving Appellant of her right to a jury trial and due process of law as guaranteed by the
Assignment of Error No. 2:
The triаl court abused its discretion in imposing non-minimum, consecutive sentences on Appellant, as such sentences are contrary to law and are not supported by the record from the sentencing hearing.
{¶ 6} In her first assignment of еrror, appellant argues that the trial court lacked the authority to sentence her to non-minimum consecutive sentences. In support of her position, appellant relies on Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, and their progeny. In Apprendi, the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Otherwise, according to Apprendi, the sentеnce violates a defendant‘s right to a jury trial under the
{¶ 7} Appellant claims that pursuant to Blakely, she was entitled to a jury determination of those factual findings upon which the trial court based its sentence. However, appellant‘s argument fails for two reasons. One, we reject appellant‘s Blakely-based argument, just as we have rejected identical аrguments in a recent line of cases beginning with State v. Abdul-Mumin, Franklin App. No. 04AP-485, 2005-Ohio-522. In said case, we held:
Ohio‘s sentencing scheme does not encroach upon the traditional and constitutionally required role of the jury in finding those facts that fix the upper limit of a defendant‘s punishment for a particular offense. Rather, the upper limit, or in Blakely terms, the “statutory maximum” sentence to which one accused of a felony knows he will be exposed upon walking through the courtrоom door, is established by statute.
R.C. 2929.14(B) does not allow judge-made findings to enhance a defendant‘s punishment beyond the maximum sentence corresponding to the class of offense of which he is convicted or to which he pleads guilty. * * *
{¶ 8} See, also, State v. Newcomb, Franklin App. No. 04AP-1223, 2005-Ohio-4570; State v. Houston, Franklin App. No. 04AP-875, 2005-Ohio-4249; State v. Imler, Franklin App. No. 04AP-1246, 2005-Ohio-4241; State v. Sanchez, Franklin App. No. 04AP-1320, 2005-Ohio-3783; State v. Fout, Franklin App. No. 04AP-1139, 2005-Ohio-3151; State v. Satterwhite, Franklin App. No. 04AP-964, 2005-Ohio-2823; State v. Sieng, Franklin App. No. 04AP-556, 2005-Ohio-1003.
{¶ 9} Secondly, as argued by appellee, appellant had served a prior prison sentence. “Back in 1991 she was sentenced to three years in the Florida Department of Corrections. Then after that, within the sаme year, she picked up a five-year sentence.” (Tr. at 28.) Blakely and Apprendi both recognize that the fact of a prior conviction need not be submitted to a jury. Thus, appellant‘s Blakely arguments are actually a non-issue in this case. See State v. Trubee, Marion App. No. 9-03-65, 2005-Ohio-552. Accordingly, we overrule appellant‘s first assignment of error.
{¶ 10} In her second assignment of error, relying on
{¶ 11} Pursuant to
(4) 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 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 аny 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 undеr 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 two or more of the multiplе 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.
{¶ 12} In addition to making these findings, a trial court must also comply with
{¶ 13} At the sentencing hearing, after reviewing the facts, the court stated:
So, all of this draws me down to a couple of conclusions here. In this particular case the court does feel that consecutive sentences are necessary to protect the public from future crimes and to punish thе defendant, and are not disproportionate to the seriousness of the defendant‘s conduct and to the danger the defendant possesses to the public.
Furthermore, the defendant‘s history of criminal conduct demonstrаtes that consecutive sentences are necessary to protect the public from future crimes by the defendant.
Further, the court finds that the defendant possesses the greatest likelihood to the community of future crimеs. And the defendant was not forthcoming or truthful during her arrest and subsequent to that time.
(Tr. at 31.)
{¶ 14} In the three pages preceding the above-quoted language, the trial court did, in fact, support the rendering of consecutive sentences with fаctual findings. The court noted that appellant “has accumulated 14 known aliases, which is pretty much of a record high for this court.” (Tr. at 28.) The court also noted the multiple prison sentences appellant had previously served, the “allegation of flight in an attempt to escape being a fugitive from Florida‘s Parole Commission, which does not bode well for any type of community control,” the additional charges that appellant piсked up in Ohio and Minnesota, and the denial of “any knowledge of any involvement in the crime” when arrested. (Tr. at 28-30.)
{¶ 15} With respect to the trial court imposing more than a non-minimum sentence, contrary to appellant‘s arguments, the trial court is not required to give reasons for its findings at the sentencing hearing when imposing a non-minimum sentence. Comer, supra. The court in Comer held that while
{¶ 16} The transcript in this case reveals that the court made adequate findings with respect to the non-minimum sentences. Additionally, the court‘s judgment entry filed January 21, 2005, reflects that the court weighed the factors as set forth in the applicable provisions of
{¶ 17} Because the trial court made all the requisite findings and complied with the appropriate sentencing statutes, we cannot clearly and convincingly find that appellant‘s sentenсe was contrary to law or unsupported by the record. State v. Cockrell, Franklin App. No. 04AP-487, 2005-Ohio-2432. Accordingly, appellant‘s second assignment of error is overruled.
{¶ 18} For the foregoing reasons, appellant‘s two assignments of error are over-ruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Brown, P.J., and Fren