2008 Ohio 6182 | Ohio Ct. App. | 2008
{¶ 2} We initially note that this is a consolidated appeal of case numbers 3-08-10 and 3-08-11, both heard together at the trial court. Case number 3-08-10 corresponds to common pleas court case number 05-CR-0081, arising from a community control violation. Case number 3-08-11 corresponds to common pleas court case number 08-CR-0007, arising from a drug possession conviction. *3
{¶ 3} In June 2005, Montgomery was indicted by the Crawford County Grand Jury on one count of heroin possession, in an amount less than one gram, in violation of R.C.
{¶ 4} In August 2005, Montgomery entered a plea of guilty to the indictment. Subsequently, the trial court sentenced him to three years of community control and ordered him to complete a drug and alcohol treatment program.
{¶ 5} In January 2008, the State filed a notice of violation of the terms of community control, alleging that Montgomery refused to provide a urine sample to his probation officer and admitted to using heroin. Shortly thereafter, Montgomery was indicted for a separate incident by the Crawford County Grand Jury on one count of possession of heroin in the vicinity of a juvenile in violation of R.C.
{¶ 6} In February 2008, Montgomery withdrew his not guilty plea, entered a plea of guilty to both counts of the indictment, and entered an admission to the community control violation.
{¶ 7} In April 2008, the trial court sentenced Montgomery to an eighteen-month prison term on the drug possession count, a six-month jail term on the child endangerment count, and a twelve-month prison term for the community control violation. The trial court ordered the sentences for drug possession and the community control violation to be served consecutively, with the child endangerment sentence to be served concurrently, for a total prison term of thirty months. In sentencing Montgomery, the trial court stated the following from the bench:
Well there's been a lot of talk here, Mr. Montgomery, about the result of your conduct. You're not charged with what could've happened there. You know, I don't know who put the needle in your wife's arm. I don't know whether it matters because as sure as we're sitting here, you're responsible for the death of your wife. She didn't even know what heroin was, apparently, *5 until she ran into you. Nothing that this Court, or any other Court, Morrow County has done, has changed your behavior. * * * You had opportunity after opportunity and I won't even bore people with your record. As the prosecutor points out, you've been through treatment. It didn't do any good. You did find a wife. It didn't stop you. You had a child. Even that didn't stop you. You not [sic] the decency to do this stuff out of your child's presence. * * * The only regret I have today is that I can't sentence you for what I think you really did. And that's be responsible for the death of your wife. But you're not charged with that. I don't have the power to charge you. All I have the power to do is clean up after the mess. This court sentences you to eighteen months at Lorain Correctional Institute on count one in case 08 CR 007, to six months in the Crawford County Jail on count two in that case. On case number 05 CR 0081, the Court sentences you to twelve months at Lorain Correctional Institution. The Court orders these sentences to run consecutively.2
(Sentencing Hearing Tr., pp. 7-8).
{¶ 8} It is from this judgment that Montgomery appeals, presenting the following assignment of error for our review
THE TRIAL COURT ERRED BY IMPROPERLY CONSIDERING UNCHARGED CONDUCT ALLEGEDLY COMMITTED BY DEFENDANT. THE COURT MAY NOT CONSIDER UNPROVEN ALLEGATIONS OF OTHER CONDUCT TO EXACERBATE THE PUNISHMENT.
{¶ 9} In his sole assignment of error, Montgomery argues that the trial court erred by considering uncharged conduct in sentencing him. Specifically, Montgomery contends that the trial court assessed a maximum possible sentence *6 on all counts because the trial court thought he caused the death of his wife by helping her to shoot heroin, an allegation for which he was not indicted. We disagree.
{¶ 10} When a criminal defendant appeals the sentence of the trial court, the appellate court must conduct a meaningful review of the sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07,
{¶ 11} In sentencing an offender, the trial court must consider the overriding purposes of felony sentencing, which are to protect the public from future crimes by the offender and to punish the offender. R.C.
{¶ 12} In State v. Foster,
{¶ 13} Although a trial court is granted full discretion in felony sentencing in the wake of Foster, a trial court may not consider allegations of conduct which have not been adjudicated by a finding of guilt, either by plea or by trial. See State v. Blake, 3d Dist. No. 14-03-33,
{¶ 14} Here, the trial court sentenced Montgomery to an aggregate prison term of thirty months, with the eighteen-month prison term for drug possession and the twelve-month prison term for the community control violation served consecutively. In sentencing Montgomery, the trial court made several references to his wife's death as a result of a heroin overdose and its belief that Montgomery substantially contributed to her death, even though he was not charged in connection therewith. While the trial court did reference this uncharged conduct, it also made clear that it regrettably did not have the ability to sentence Montgomery on the basis of that conduct. "The only regret I have today is that I can't sentence you for what I think you really did. And that's be responsible for the death of your wife. But you're not charged with that." (Sentencing Hearing Tr., p. 8).
{¶ 15} Moreover, the trial court also stated several grounds for the imposition of its sentence, including sentencing factors under R.C.
{¶ 16} Accordingly, we overrule Montgomery's assignment of error.
{¶ 17} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments affirmed. SHAW, P.J., and PRESTON, J., concur.