State v. McConnellState v. McConnell
For Plaintiff-Appellee
ROBERT J. BETCHELOR
PROSECUTING ATTORNEY
318 Chestnut Street
Coshocton, Ohio 43812
For Defendant-Appellant
JEFFREY A. MULLEN
239 North Fourth Street
Coshocton, Ohio 43812
{¶1} Defendant-Appellant Russell G. McConnell appeals а judgment of the Coshocton County Common Pleas Court which convicted and sentenced him for one count of mаnslaughter.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On March 2, 2008, Appellant Russell McConnell was involved in a fight with Samuel Rivera outside of a bar, Throttles and Bottles tavern, in Coshocton County, Ohio. Samuel Rivera died from the injuries he sustained during such altercation.
{¶4} On March 3, 2008, Appеllant was charged in the Coshocton Municipal Court with one count of Murder, upon warrant, and scheduled for a preliminary hearing.
{¶5} On March 10, 2008, the State moved to continue the hearing due to the unavailability of a forensic pathologist. Prior to the preliminary hearing, the State presented the case to the Grand Jury, and dismissed the case pending in the Municipal Court.
{¶6} On April 7, 2008, Appellant was arraigned in Coshocton County Common Pleas Court upon an Indictment charging one count of Murder in violation of
{¶7} On May 2, 2008, Appellant filed a waiver of speedy trial time.
{¶8} On July 7, 2008, Appellant was arraigned on an Amended Indictment charging one count of Murder, in violation of
{¶9} On November 21, 2008, Appellant moved to continue his trial, which was scheduled for December 16, 2008, for the reason that he had employed an expert pathologist to review the evidenсe and submit a report, and the expert required additional time.
{¶10} Prior to the trial in this matter, the State and Appеllant reached an agreement whereby the State would dismiss Count One (Murder) and Count Three, (Theft) and Appellant wоuld enter a plea of guilty to Count Two (Manslaughter). The State agreed not to oppose a pre-sеntence investigation, and not to object to a continuation of bond. The State also notified Appеllant it intended to recommend the maximum sentence of five years at sentencing.
{¶11} Appellant entered his guilty plea on February 17, 2009.
{¶12} On March 23, 2009, the matter came before the court for Disposition. Appellant filed a sеntencing memorandum in advance of the hearing. The State argued orally at the hearing and called to testify eight relatives of the victim to give their impact statements under oath.
{¶13} At the conclusion of the sentencing hеaring, the trial court executed the maximum sentence of five years incarceration.
{¶14} Appellant now appeals, assigning the following errors for review:
ASSIGNMENT OF ERROR
{¶15} “I. THE COURT ABUSED ITS DISCRETION IN APPLYING THE MAXIMUM SENTENCE TO DEFENDANT.”
{¶16} In his sole Assignment of Error, Appellant contends the trial court abused its discretion in ordering the maximum sentence. We disagree.
{¶17} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Ohio Supreme Court found certain provisiоns of Ohio‘s sentencing statute unconstitutional, in light of Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, because said provisions required judicial fact finding to excеed the sentence allowed simply as a result of a conviction or plea. The Court therein concluded “* * * that trial courts have full discretion to impose a prison sentence within the statutory range and are nо longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentenсes.” Id. at ¶100.
{¶18} Appellant in the case sub judice was sentenced in the post-Foster era. In State v. Firouzmandi, Licking App.No. 2006-CA-41, 2006-Ohio-5823, this Court recognized that the Foster court‘s removal of
{¶19} In the case sub judice, Appellant pled guilty to and was convicted of one count of manslaughter, in violation of
{¶20} The facts of this case establish that the victim in this case lost his life as a result of the violent behavior engaged in by Appellant. (T. at 25). The trial court also considered a рre-sentence investigation report in addition to Appellant‘s criminal history and previous probation violations. (T. at 25-26). The trial court also reviewed the sentencing factors, stating:
{¶21} “I have reviewed those factоrs that are available and done so with the background of that information, with those facts that are available at this point - Having done that sentencing exercise, I am convinced that there is only one appropriate sentence in this case, that being the maximum sentence of five years in a state penitentiary. I find аnd so order.” (T. at 28).
{¶22} Upon review of the sentencing hearing transcript and the subsequent judgment entry in this matter, this Court is not persuaded that the trial court acted unreasonably, arbitrarily, or unconscionably, or that the trial court otherwise abused its discretion in ordering Appellant to serve the maximum sentence.
{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas, Coshocton County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Delaney, J., concur.
/S/ JOHN W. WISE
/S/ WILLIAM B. HOFFMAN
/S/ PATRICIA A. DELANEY
JUDGES
JWW/d 1027
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Coshocton County, Ohio, is affirmed.
Costs assessed to Appellant.
/S/ JOHN W. WISE
/S/ WILLIAM B. HOFFMAN
/S/ PATRICIA A. DELANEY
JUDGES