State v. Rose, 9-06-39 (4-9-2007)State v. Rose, 9-06-39 (4-9-2007)
{¶ 1} The defendant-appellant, Rodney Rose (“Rodney“), appeals the July 14, 2006 Judgment of conviction and sentence entered in the Court of Common Pleas, Marion County, Ohio, re-sentencing him to a term of eight years in prison.
{¶ 2} On June 24, 2003 at approximately 3:35 a.m., Rodney set fire to his residence at 960 Henry Street, Marion, Ohio by using a gasoline accelerant. He set fire while his wife, stepdaughter and stepdaughter‘s boyfriend were asleep in upstairs bedrooms. Fortunately, all three individuals escaped to safety through an upstairs window. However, the arson did cause substantial risk of serious physical harm to these individuals.
{¶ 3} On August 27, 2003, Rodney was indicted by the Marion County Grand Jury on one count of Aggravated Arson, in violation of
{¶ 4} On January 15, 2004, Rodney plead guilty to one count of Aggravated Arson in violation of
{¶ 5} Rodney sought leave to appeal his sentence pursuant to
{¶ 6} On July 6, 2006, the trial court held a new sentencing hearing. During the hearing, the State recommended that the trial court impose the same eight-year sentence which had previously been imposed and Rodney made an oral motion pursuant to
{¶ 7} On July 19, 2006, Rodney filed a notice of appeal raising the following assignments of error:
Assignment of Error I
The court below erred in overruling appellant‘s motion to withdraw his guilty plea pursuant to
Ohio Crim. R. 32.1 .
The sentencing order of the court below violated appellant‘s rights under the ex post facto and due process clauses of the United States Constitution.
Assignment of Error III
The sentencing order of the court below violated appellant‘s rights to a trial by jury guaranteed under the
Sixth andFourteenth Amendments of the United States Constitution.
Assignment of Error IV
The sentencing order of the court below was contrary to law under the Rule of Lenity.
{¶ 8} Rodney asserts in his first assignment of error that the trial court erred in overruling his motion to withdraw his guilty plea pursuant to
{¶ 9}
A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.
(1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the
Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge.
State v. Griffin (2001), 141 Ohio App.3d 551, 752 N.E.2d 310. However, the right to withdraw a plea is not absolute. State v. Xie (1992), 62 Ohio St.3d 521, at paragraph one of the syllabus.
{¶ 10} Motions to withdraw guilty pleas after sentencing may only be set aside to correct manifest injustice. Manifest injustice has been defined as an extraordinary flaw in the plea proceedings. State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. This Court has also held that a manifest injustice is a “clear or openly unjust act.” State v. Walling, Shelby App. No. 17-04-12, 2005-Ohio-428, at ¶ 6. The decision of whether a manifest injustice occurred rests with the sound discretion of the trial court. Smith, 49 Ohio St.2d at paragraph two of the syllabus. Therefore, “this court will not reverse a trial court‘s denial of a motion to withdraw a plea of guilty absent an abuse of discretion on the part of the trial court.” State v. Nathan (3rd Dist. 1995), 99 Ohio App.3d 722, 725, 651 N.E.2d 1044. An abuse of discretion implies that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 11} The State argues that
{¶ 12} Rodney argues that in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-256, the Supreme Court of Ohio rendered the initial sentence void and that he therefore stands as a defendant making a
{¶ 13} Upon review of the record, we find that it is unnecessary for us to address which of these arguments prevails because in this case there is no proffer or other indication in the record that the defendant has set forth any grounds upon
{¶ 14} In his second and third assignments of error, Rodney alleges that the trial court violated his rights under the Ex Post Facto and Due Process Clauses of the United States Constitution and his rights to a trial by jury guaranteed under the
{¶ 15} The Supreme Court of Ohio recently addressed constitutional issues concerning felony sentencing in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In Foster, the Supreme Court of Ohio held that portions of Ohio‘s felony sentencing framework was unconstitutional and void, including
{¶ 16} As this Court is required to follow precedent, as set forth by the Supreme Court of Ohio and the United States Supreme Court, we find no error in the trial court‘s decision to sentence Rodney to an eight year prison term. Rodney pled guilty to a first-degree felony.
{¶ 17} Pursuant to
[t]he court shall impose a definite prison term that shall be one of the following:
(1) Felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, or ten years.
Rodney could have been sentenced to as little as three years or as much as ten years for the count that he pled guilty to. In this case, Rodney was sentenced to eight years.
{¶ 18} In addition, for the reasons articulated in State v. McGhee, 3rd Dist. No. 17-06-05, 2006-Ohio-5162, we find no merit in his argument that his sentence violates the Ex Post Facto and Due Process Clauses. Rodney entered a plea of guilty on January 15, 2004. He was sentenced to an eight year prison term on April 30, 2004. He filed a notice of appeal with this Court pursuant to
{¶ 19} Furthermore, the Ohio State Public Defender attempted to appeal the unanimous Foster decision to the United States Supreme Court. On October 16, 2006, the United States Supreme Court denied the Petition for Writ of Certiorari. Foster v. Ohio (2006), 127 S.Ct. 442, 166 L.Ed.2d 314.
{¶ 20} Accordingly, Rodney‘s second and third assignments of error are overruled.
{¶ 21} Rodney argues in his fourth assignment of error that the “rule of lenity” requires that a defendant receive minimum and concurrent sentences.
{¶ 22} The “rule of lenity” was originally a common law rule of statutory construction that was codified in
Except as otherwise provided in division (C) or (D) of this section, sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.
{¶ 23} While courts are required to strictly construe statutes defining criminal penalties against the state, the rule of lenity applies only where there is ambiguity in a statute or conflict between multiple states. United States v. Johnson (2000), 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39; United States v. Lanier (1997), 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432; State v. Arnold (1991), 61 Ohio St.3d 175, 178, 573 N.E.2d 1079. There exists no ambiguity in the sentencing statutes in Ohio because the Supreme Court of Ohio held that portions of Ohio‘s felony sentencing framework was unconstitutional and void in State v. Foster, supra. Therefore, the rule of lenity has no bearing on the present case because Foster can be easily understood to state that portions of the sentencing framework are unconstitutional and provides no ambiguity as to the unconstitutionality of certain statutes. Therefore, Rodney‘s fourth assignment of error is overruled.
{¶ 24} Accordingly, Rodney‘s assignments of error are overruled and the July 14, 2006 Judgment of conviction and sentence entered in the Court of
Judgment affirmed.