State v. PotterState v. Potter
Rendered on February 4, 2010
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Richard Cline & Co., LLC, and Richard A. Cline, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
McGRATH, J.
{¶1} Defendant-appellant, Michael T. Potter (“appellant“), appeals from the judgment of the Franklin County Court of Common Pleas sentencing him to a maximum aggregate sentence of 18 years’ incarceration imposed after his plea of guilty to aggravated robbery, a first-degree felony, in violation of
{¶2} On June 19, 2008, a Franklin County Grand Jury indicted appellant in a two-count indictment for aggravated robbery and felonious assault, both of which
{¶3} According to the plea proceedings, on June 9, 2008, appellant and his girlfriend were at the Front Row Sports Bar when appellant exited the bar for the purported reason of retrieving money. However, appellant returned to the bar with a knife in the back of his waistband and, without warning or hesitation, put the knife against the throat of the victim, fellow patron Todd Parker. Though it was the back of the knife blade that was used, Mr. Parker sustained a cut across the width of his throat. After chasing Mr. Parker and the bartender out the front door, appellant locked the door while arguing with his girlfriend about what was happening. Appellant‘s girlfriend tried unsuccessfully to unlock the front door and was then forced out the rear door by appellant. Appellant also removed the cash register, which he was unable to pry open with his knife, and smashed it so as to remove the cash drawer. Appellant fled and was later apprehended outside of his apartment. In a common area between appellant‘s apartment building and another building, the locked but pried cash drawer, a knife, and money were found.
{¶4} After appellant entered his guilty pleas to aggravated robbery and felonious assault, a presentence investigation report (“PSI“) was ordered. A sentencing hearing was held on April 17, 2009, and appellant was sentenced to a ten-year term of incarceration on the aggravated robbery charge consecutive to an eight-year term of incarceration on the felonious assault charge.
{¶5} This appeal followed and appellant brings the following assignment of error for our review:
The Ohio Supreme Court decision in State v. Foster has been abrogated by the United States Supreme Court decision in Oregon v. Ice, and therefore the trial court erred by imposing maximum consecutive sentences without first making the findings required by
R.C. § 2929.14 and State v. Comer, 2003-Ohio-4165, ¶ 20, 99 Ohio St. 3d 463.
{¶6} In his single assignment of error, appellant contends the trial court erred when it imposed consecutive sentences without first making the statutory findings required by
Very recently, in State v. Elmore [122 Ohio St.3d 472], 2009-Ohio-3478, the Supreme Court of Ohio did briefly discuss Ice. Although the court refused to address fully all ramifications of Ice because neither party before it sought the opportunity to brief this issue before oral argument, the court concluded that Foster did not prevent the trial court from imposing consecutive sentences; it merely took away a judge‘s duty to make findings before doing so. Id. ¶ 35, 845 N.E.2d 470. Thus, the court in Elmore stated, the trial court had authority to impose consecutive sentences. Id. Accordingly, although the Supreme Court has not fully addressed the implications of Ice, it appears as though it continues to adhere to the principles in Foster. Therefore, we decline to depart from Foster until the Supreme Court directs otherwise. Appellant‘s first assignment of error is overruled.
State v. Crosky, 10th Dist. No. 09AP-57, 2009-Ohio-4216, ¶8, discretionary appeal not allowed by 2009-Ohio-6816, ¶8; see also State v. Russell, 10th Dist. No. 09AP-428, 2009-Ohio-6420 (rejecting the defendant‘s arguments that the United States Supreme Court‘s decision in Ice controlled and that the statutory findings under
{¶8} Consistent with the precedent established by this court, we conclude appellant‘s argument is without merit and decline to part from Foster until the Supreme Court of Ohio commands differently. Accordingly, appellant‘s single assignment of error
Judgment affirmed.
TYACK, P.J., and KLATT, J., concur.
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