STATE OF OHIO, Plaintiff-Appellee, v. DANIEL G. PAYTON, Defendant-Appellant.
Case No. 17CA3788
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
RELEASED: 09/18/2017
[Cite as State v. Payton, 2017-Ohio-7865.]
Harsha, J.
DECISION AND JUDGMENT ENTRY
Daniel G. Payton, Chillicothe, Ohio, pro se appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Harsha, J.
{¶1} Daniel G. Payton agreed to plead guilty to three counts of rape and a sexually-violent-predator specification; he received an aggregate prison term of 30 years to life and classification as a sexual predator. Over 12 years later, he contested the legality of his sentence in a motion to correct sentence, which the trial court denied.
{¶2} We reject Payton’s assignment of error because his agreed sentence was not subject to review; it was jointly recommended by the parties, authorized by law, and imposed by the sentencing court. We overrule Payton’s assignment of error and affirm the judgment of the trial court.
I. FACTS
{¶3} The Scioto County Grand Jury returned an indictment charging Daniel G. Payton with four counts of rape of a child under 13 years of age and accompanying force and sexually-violent-predator specifications. Payton subsequently pleaded guilty to three of the rape counts and one of the sexually-violent-predator specifications. In
{¶4} Instead, over 12 years later, in November 2016, he filed a “Verified Motion to Correct Sentence,” which conceded that he was “not challenging his convictions nor his guilty plea.” Instead, he claimed without any evidentiary support that “there was no agreed sentence,” and that “[n]one of the required language to impose mandatory or consecutive terms were part of the proceedings or cited in the Judgment Entry as required * * *.” He also claimed that the trial court failed to notify him in its sentencing entry of his right to appeal those parts of his sentence that were contrary to law. The trial court denied the motion, noting that it had “reviewed the recordings of the Plea Hearing and the Sentencing Hearing, as well as the record docket” and that Payton “was plainly and explicitly told at his Plea and at his Sentencing that this was an Agreed Sentence and the terms of the agreement were plainly and explicitly stated in open court with the Defendant present.” In the alternative, the court noted that it did make the requisite sentencing findings even though it did not need to do so.
II. ASSIGNMENT OF ERROR
{¶5} Payton assigns the following error for our review:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED AND OVERRULED DEFENDANT-APPELLANT’S VERIFIED MOTION TO CORRECT SENTENCE, WITHOUT HOLDING A HEARING TO OBTAIN EVIDENCE AND FACTS OUTSIDE THE RECORD TO GIVE
THE DEFENDANT-APPELLANT THE OPPORTUNITY TO SPEAK WITHOUT THE INFLUENCE OF PSYCHOTROPIC DRUGS.
III. LAW AND ANALYSIS
{¶6} Payton asserts that the trial court erred by denying his motion to correct his sentence, which contests the felony sentence for his rape convictions.
{¶7} As the trial court concluded, Payton cannot contest his agreed sentence. Under
{¶8} Payton’s sentence was jointly recommended by the parties and imposed by the sentencing judge. The record contains the trial court’s unrebutted statement in Payton’s 2004 sentencing entry that the sentence it imposed constituted “an agreed sentence pursuant to [R.C.] 2953.08(D).” Although Payton claimed that it was not an agreed sentence in his motion, the transcripts of his plea and sentencing hearings, which the trial court reviewed in ruling on his motion, are not part of the record on appeal.1 We thus presume the validity of the trial court’s statement in its sentencing entry. See State v. Lamb, 4th Dist. Highland No. 14CA3, 2014-Ohio-2960, ¶ 14, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980) ( “ ‘When portions of the transcript necessary for the resolution of assigned errors are
{¶9} Therefore, the remaining issue is whether Payton’s sentence was “authorized by law.” “ ‘A sentence is “authorized by law” and is not appealable within the meaning of
{¶10} In his motion to correct sentence Payton raised three sentencing claims: (1) the trial court did not make the findings required to impose mandatory prison terms under
{¶11} However, our review of the record indicates that the trial court properly imposed mandatory prison terms for his rape convictions because Payton violated
{¶12} Moreover, the trial court made the requisite findings to impose consecutive sentences for the rape convictions. See
{¶13} Finally, the trial court did not violate
{¶14} Therefore, Payton’s motion to correct sentence was meritless. Consequently, the trial court did not err by holding that his agreed sentence was not reviewable, and denying his motion to correct sentence.
{¶15} Insofar as Payton attempts to raise various new claims contesting the trial court’s sentencing entry on appeal, he forfeited them by failing to raise them in his motion to correct sentence. See generally State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15 (2014) (It is a well-established rule that “ ‘an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been a waiver of such issue and a deviation from this
{¶16} We overrule Payton’s assignment of error and affirm the judgment of the trial court denying his motion to correct sentence.
JUDGMENT AFFIRMED.
STATE OF OHIO, Plaintiff-Appellee, v. DANIEL G. PAYTON, Defendant-Appellant.
Scioto App. No. 17CA3788
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.