State v. RussellState v. Russell
Rendered on December 8, 2009
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Yeura R. Venters, Public Defender, and Paul Skendelas, for appellant.
APPEALS from the Franklin County Court of Common Pleas.
BRYANT, J.
{¶1} Defendant-appellant, Karl Russell, Jr., appeals from judgments of the Franklin County Court of Common Pleas Court finding him guilty, pursuant to guilty pleas, of two counts of violating a protection order or consent agreement in violation of
The trial court erred by imposing consecutive sentences without making the required statutory findings pursuant to
R.C. 2929.14(E)(4) .
Because the trial court did not err in imposing consecutive sentences without making the statutory findings in
I. Procedural History
A. Case No. 08CR-06-4689 (Appellate No. 09AP-428)
{¶2} By indictment filed June 24, 2008, defendant was charged with one count of violating a protection order or consent agreement in violation of
{¶3} Although defendant initially entered a not guilty plea to the charge, defendant, represented by counsel, changed his plea to guilty on March 16, 2009. In sentencing defendant, the trial court ordered defendant to serve 12 months in an Ohio Department of Rehabilitation and Corrections facility. The court further ordered the sentence be served concurrently with defendant‘s sentences in cases 08CR-10-7265 and 08CR-10-7658 but consecutively to defendant‘s sentence in 08CR-10-7855.
B. Case No. 08CR-10-7658 (Appellate No. 09AP-429)
{¶4} By indictment filed on October 12, 2008, defendant was charged with one count of failure to appear on a recognizance bond in violation of
{¶5} After accepting defendant‘s guilty plea, the trial court sentenced defendant to six months in the Franklin County Correctional Center, to be served concurrently with his sentences in 08CR-06-4689, 08CR-10-7855, and 08CR-10-7265.
C. Case No. 08CR-10-7265 (Appellate No. 09AP-430)
{¶6} By indictment filed October 2, 2008, defendant was charged with two counts of intimidating a witness in violation of
{¶7} Although defendant initially entered a not guilty plea, defendant changed his plea at the March 16, 2009 plea proceedings to guilty to the stipulated lesser included offense of the second count of the indictment, assault in violation of
D. Case No. 08CR-10-7855 (Appellate No. 09AP-431)
{¶8} By indictment filed October 3, 2008, defendant was charged with one count of menacing by stalking in violation of
{¶9} Although defendant initially entered a not guilty plea, defendant changed his plea and entered a guilty plea at the plea proceedings on March 16, 2009 to the second count of the indictment, violating a protection order, a felony of the third degree. The trial court sentenced defendant to three years at the Ohio Department of Rehabilitation and Corrections, a sentence to be served concurrently with the sentences imposed in case Nos. 08CR-10-7265 and 08CR-10-7658; the trial court, however, ordered the sentence to be served consecutively to the sentence in 08CR-06-4689.
II. Assignment of Error
{¶10} In his single assignment of error, defendant contends the trial court erred in sentencing him to consecutive sentences in the absence of statutory findings pursuant to
{¶11} Pursuant to
{¶12} After Burton, the Ohio Supreme Court issued its decision in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In it, the plurality opinion decided an “appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence.” Id. at ¶14. Thus, “[a]s a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in
{¶13} Kalish clarified that once an appellate court has determined the sentence is not contrary to law, the court must consider the trial court‘s application of
{¶14} Defendant acknowledges the Supreme Court of Ohio‘s decision in Foster. In Foster, “the Ohio Supreme Court held that, under the United States Supreme Court‘s decisions in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, portions of Ohio‘s sentencing scheme were unconstitutional because they required judicial fact finding before a defendant could be sentenced to more than the minimum sentence, the maximum sentence, and/or consecutive sentences.” State v. Houston, 10th Dist. No. 06AP-662, 2007-Ohio-423, ¶3, appeal not allowed, 114 Ohio St.3d 1426, 2007-Ohio-2904. To remedy the situation, “the Ohio Supreme Court severed the offending sections from Ohio‘s sentencing code. Thus, pursuant to Foster, trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive or more than minimum sentences.” Id., citing Foster at ¶100.
{¶15} Defendant nonetheless contends the United States Supreme Court‘s recent decision in Oregon v. Ice (2009), ___ U.S. ___, 129 S.Ct. 711, controls here and dictates that the Ohio Supreme Court wrongly excised portions of
{¶16} In State v. Franklin, 182 Ohio App.3d 410, 2009-Ohio-2664, this court acknowledged Ice, but noted the Supreme Court of Ohio has not reconsidered Foster, and Foster thus remains binding on this court. Id. at ¶18. Accordingly, we rejected the
{¶17} Consistent with the prior decisions in this court, we, too, conclude defendant‘s argument is unpersuasive, finding Foster is controlling in this matter until the Supreme Court chooses to deviate from it. Accordingly, defendant‘s single assignment of error is overruled, and the judgments of the Franklin County Court of Common Pleas are affirmed.
Judgments affirmed.
FRENCH, P.J., and KLATT, J., concur.