2007 Ohio 1721 | Ohio Ct. App. | 2007
{¶ 2} On June 20, 2005, Pinkney was indicted by the Cuyahoga County Grand Jury with one count of felonious assault, a felony of the second degree, with multiple repeat violent offender and prior conviction specifications. Pinkney was arraigned and entered a plea of not guilty. On August 9, 2005, Pinkney withdrew his not guilty plea and entered a plea of guilty to felonious assault in violation of R.C.
{¶ 3} On September 20, 2005, the trial court held a sentencing hearing and heard evidence. The state, victim, and character witness, Detective Green with the Cleveland Heights Police Department, spoke at the sentencing hearing. Pinkney also addressed the court and acknowledged the main facts of the incident, as stated by the victim, were true but refuted a few minor details. Pinkney was sentenced to the maximum prison term of 8 years and an additional 1 year, for a total of 9 years. Pinkney was also ordered to serve 3 years of post-release control as part of his sentence. The court on the oral record made judicial findings in support of its decision to sentence Pinkney to the maximum term of incarceration. These judicial findings included that Pinkney committed the worst form of the offense and posed the greatest likelihood of committing future crimes. The court supported these findings by stating Pinkney caused physical harm to the victim, the victim suffered devastating emotional injuries, Pinkney had an extensive and violent prior criminal record, he served time in prison, and he committed the offense while under post-release control supervision by the State of Ohio Adult Parole Authority. The court notified Pinkney he had an automatic right to appeal, the court determined him to be indigent and assigned counsel. *4
{¶ 4} On June 27, 2006, Pinkney filed a pro se motion for delayed appeal, motion for appointment of counsel, notice of appeal, praecipe, docketing statement, and a motion to prepare transcript at state's expense. These motions were granted on July 24, 2006 and counsel was appointed.
{¶ 5} Pinkney advances one assignment of error for our review:
{¶ 6} "The trial court erred by imposing the maximum prison term for appellant's conviction in CR-466792 because the trial court considered facts that were neither admitted by appellant nor determined by a jury in violation of the
{¶ 7} In our review of appellant's sole assignment of error it is necessary that we first decide if Pinkney had a "pending appeal," prior to the issuance of the decision in State v. Foster,
{¶ 8} Foster was submitted on July 26, 2005 and decided on February 27, 2006. The Ohio Supreme Court held that several provisions of S.B. 2, including R.C.
{¶ 9} In State v. Lewis, 10th Dist. No. 06AP-327,
{¶ 10} However, the court of appeals noted in its decision that even if Lewis had a claim under Foster, that ruling pertains only to cases pending on direct appeal at the time the decision was announced. Id. at _10, citing Foster, supra, at _104-105. "Appellant did not appeal his conviction and sentence. Therefore, the conviction and sentence had become final long before Foster was announced. Appellant's attempt to file a delayed appeal does not change that fact." Id. at _10. "Delayed appeal is not the same as direct appeal." Id., citing State v. Bird
(2000),
{¶ 11} In State v. Cook, 10th Dist. No. 05AP-515,
{¶ 12} Similarly, State v. Dudukovich, 9th Dist. No. 05CA008789,
{¶ 13} In State v. Schroyer, 12th Dist. No. CA 2006-08-064,
The court found by the time Schroyer filed this motion his direct appeal remedies were no longer available. Id. The court held that Schroyer's case was final and not pending on direct review whenFoster was decided. Id. Therefore, Schroyer was not permitted to have the ruling in Foster retroactively applied to his case. Id.
{¶ 14} Also, in State v. Dressler, 3rd Dist. No. 4-06-30,
{¶ 15} In State v. Hall, 3rd Dist. No. 12-06-08,
{¶ 16} In the instant case, Pinkney filed his motion for delayed appeal and notice of delayed appeal on June 27, 2006, approximately four months after Foster was decided, and this court granted the motion for delayed appeal on July 24, 2006. Thus, Pinkney's case was final and not pending on direct review when Foster was decided. Accordingly, Pinkney is not entitled to have the Foster ruling retroactively applied to his case. Furthermore, Pinkney offered no explanation why he did not raise aBlakely claim during the twenty four months between the announcement ofBlakely and his notice of appeal. A review of the record reflects Pinkney never challenged the constitutionality of Ohio's statutes at the trial court. As Pinkney failed to raise any objection below, he is prohibited from raising such an argument for the first time on appeal.
{¶ 17} We conclude that the maximum sentence ordered by the trial court was not improper because the victim endured physical injury and suffered devastating emotional trauma, Pinkney also had a lengthy and violent criminal history, served prison terms in the past and committed the instant offense while serving post-release *9 control.
{¶ 18} For these reason, Pinkney's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
*1JAMES J. SWEENEY, P.J., and KENNETH A. ROCCO, J., Concur.