State v. MontgomeryState v. Montgomery
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third Street, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
BRESSLER, P.J.
{¶1} Defendant-appellant, Eric W. Montgomery, appeals his sentence imposed by the Clermont County Court of Common Pleas following his convictions for breaking and entering, vandalism, and theft.
{¶2} On September 17, 2008, in Case No. 08CR00774, a grand jury indicted appellant on 47 counts as follows: Counts 1 through 6, breaking and entering in violation of
{¶3} Before trial, the state dismissed Case No. 08CR00774 Count 47 and Case No. 08CR00815 Counts 7 through 10 and 17 through 20. At the conclusion of the state‘s case, the trial court dismissed the following counts pursuant to appellant‘s
{¶4} On December 31, 2008, appellаnt was convicted of and sentenced on the following: Case No. 08CR00774 Counts 1 through 4, 7 through 24, and 27 through 44; and Case No. 08CR00815 Count 4, and 12 through 15. In Casе No. 08CR00774, the trial court imposed 12-month sentences on Counts 1 through 4 and ordered these sentences to be served cоnsecutively to each other; 12 months each as to Counts 7 through 14, and 27 through 34, to be served concurrently with each othеr and consecutively to Counts 1 and 2; and 12 months each as to Counts 15 through 24, and 35 through 44, to be served concurrently with each other and consecutively to Counts 1 through 4. In Case No. 08CR00815, the trial court imposed 12 months as to Counts 4, and 12 through 15, to be served cоncurrently with each other and consecutively to the aggregate sentence in Case No. 08CR00774. In total, appеllant‘s prison term is 60 months. Appellant appeals his sentences, raising the following assignment of error.
{¶5} “THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE PRISON TERMS AS THE RECORD DOES NOT SUPPORT SUCH A
{¶6} In his assignment of errоr, appellant argues that the trial court abused its discretion imposing consecutive sentences. Appellant maintains the trial court‘s decision imposing consecutive sentences is unsupported by the record and must be revеrsed.
{¶7} In Foster, 2006-Ohio-856, the Ohio Supreme Court held that
{¶8} “In applying Foster * * *, appellate courts must apply a two-step approach. First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision shall be reviewed undеr an abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4.
{¶9} Recently, in Oregon v. Ice (2009), ___ U.S. ___, 129 S.Ct. 711, the United States Supreme Court upheld an Oregon statute permitting judicial fact finding in the imрosition of consecutive sentences. The Court held that the Sixth Amendment to the United States Constitution is not violated when states permit judges, rather than juries, to make the findings of facts necessary for the imposition of consecutive, rathеr than concurrent, sentences for multiple offenses. Id. at 716-720. However, The United States Supreme Court did not expressly ovеrrule Foster in the Ice decision, and unless or until Foster is reversed or overruled, we are required to follow the law and decisions of the Ohio Supreme Court. State v. Lewis, Warren App. Nos. CA2009-02-012, -016, 2009-Ohio-4684, ¶10. While the Ohio Supreme Court has acknowledged Ice, it has not yet addressed the application of Ice to Foster. See State v. Elmore, Slip Opinion No. 2009-Ohio-3478, ¶35; State v. Hunter, Slip Opinion No. 2009-Ohio-4147, ¶35.
{¶10} Accоrding to the record, appellant did not object to the imposition of consecutive sentences on the basis of Blakely. A defendant‘s failure to object at a sentencing hearing forfeits a Blakely error on appeal. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, paragraph one of the syllаbus. “[I]f a party forfeits an objection in the trial court, reviewing courts may notice only ‘[p]lain errors or defects аffecting substantial rights.‘” Id. at ¶15, citing
{¶11} Plain error exists where there is an obvious deviation from a legal rule that affected the defendаnt‘s substantial rights, or influenced the outcome of the proceeding. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. An error does not rise to the level of a plаin error unless, but for the error, the outcome of the trial would have been different. State v. Krull, 154 Ohio App.3d 219, 2003-Ohio-4611, ¶38. Notice of plain error must be taken with utmost caution, under exceptional circumstances, and only to
{¶12} In this case, the record demonstrates that appellant‘s sentence is not contrary to law, as the trial court expressly stated that it considered the purposes and principles of sentencing under
{¶13} Additionally, after review of the record, we find no abuse of discretion in the trial court‘s sentencing decision. The trial court gave careful and substantial dеliberation to the relevant statutory considerations. Id. at ¶19-20. Specifically, the trial court considered the serious nаture of the offense, the significant impact appellant‘s conduct had on the victims, appellant‘s lack of remorse for the offense, and appellant‘s lengthy criminal history. Id.
{¶14} Accordingly, appellant‘s assignment of error is overruled.
{¶15} Judgment affirmed.
POWELL and HENDRICKSON, JJ., concur.