State v. PettiState v. Petti
Criminal Appeal from the Court of Common Pleas, Case No. 11 CR 000019.
Judgment: Reversed and remanded.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
David L. Doughten, 4403 St. Clair Avenue, Cleveland, OH 44103-1125 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Nicholas C. Petti, appeals the judgment of the Lake County Court of Common Pleas sentencing appellant to a 19-year term of imprisonment. Appellant claims the trial court erred when it sentenced him to a repeat violent offender specification without sentencing him to the maximum sentence on the underlying conviction, aggravated robbery. Based on the following, we reverse and remand.
{¶2} Appellant entered a plea of guilty to robbery, a felony of the third degree, in violation of
{¶3} Appellant was sentenced to a prison term of four years on robbery and nine years on aggravated robbery, to be served concurrently for a total of nine years. In addition, appellant was ordered to serve an additional term of ten years on the RVO specification prior to and consecutive to the above-stated prison term. Thus, appellant was sentenced to a total prison term of 19 years.
{¶4} Appellant filed a timely notice of appeal and asserts:
{¶5} “The trial court erred by sentencing the appellant to ten additional years pursuant to a Repeat Violent Offender Specification,
{¶6} Appellant‘s assigned error relates to his sentence of nine years on his conviction of aggravated robbery, in violation of
{¶7} If an indictment contains an RVO specification, it is the trial court that shall determine the issue of whether the offender is an RVO.
{¶8} Once the court determines a person to be an RVO, which is not an issue in the present appeal, penalty enhancement is governed by
{¶9} (b) The court shall impose on an offender the longest prison term authorized or required for the offense and shall impose on the offender an additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten years if all of the following criteria are met:
{¶10} (i) The offender is convicted of or pleads guilty to a specification of the type described in section 2941.149 of the Revised Code that the offender is a repeat violent offender.
{¶11} (ii) The offender within the preceding twenty years has been convicted of or pleaded guilty to three or more offenses described in division (CC)(1) of section 2929.01 of the Revised Code, including all offenses described in that division of which the offender is convicted or to which the offender pleads guilty in the current prosecution and all offenses described in that division of which the offender previously has been convicted or to which the
{¶12} (iii) The offense or offenses of which the offender currently is convicted or to which the offender currently pleads guilty is aggravated murder and the court does not impose a sentence of death or life imprisonment without parole, murder, terrorism and the court does not impose a sentence of life imprisonment without parole, any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole, or any felony of the second degree that is an offense of violence and the trier of fact finds that the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person.
(Emphasis added.)
{¶13} Under
{¶14} Although in the context of post-release control, the Ohio Supreme Court has recognized that a trial court may only impose a sentence on a defendant as provided by statute; a trial court cannot impose a sentence less than or greater than that
{¶15} Based on the opinion of this court, we reverse the judgment of the Lake County Court of Common Pleas and remand the matter for resentencing.
MARY JANE TRAPP, J.,
THOMAS R. WRIGHT, J.
concur.