State v. Starkey, 06 Ma 110 (12-14-2007)State v. Starkey, 06 Ma 110 (12-14-2007)
{¶ 1} Aрpellant Jawan B. Starkey was convicted in the Mahoning County Court of Common Pleas on one count of sexual battery, based on a Crim.R. 11 plea agreement. He now appeals his five-year prison sentenсe on the grounds that the trial court abused its discretion. Appellant argues that the trial court failed to consider the purposes of felony sentencing and the felony sentencing guidelines found in
{¶ 2} The recent decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, has given the trial courts wide discretion in imposing felony sentences. The record here reflects that the trial court considered the victim‘s testimony, the presentence investigation, the prosecutor‘s recommendation, and other facts that were revealed in both the plea hearing and at sentencing. Furthermore, long-established caselaw has held that the trial court may consider uncharged crimеs, as well as charges that are dismissed in a plea agreement, as factors at sentencing. The sentence was within the range of sentences available for sexual battery, and the judgment of the trial court is affirmed.
{¶ 3} On January 4, 2002, Appellant was indicted for rape and kidnapping (both first degree felonies) and theft (a fifth degree felony). The charges were based
{¶ 4} After a hearing, the court accepted the guilty plea that same day, April 19, 2006, and set sentencing for June 15, 2006. A presentence investigation report was prepared, and sentencing took place as scheduled.
{¶ 5} The victim testified at sentencing, stating that she was out dancing and socializing with her friends on the night of the crime, but that she did not remember the crime itself. She described a variety of injuries from the crime, including scrapes, cuts, bruises, persistent aches and pains in her arms, wrists and ankles, flashbacks of being helpless, and a wide variety of emotional and mental pain, including depressiоn. She also expressed the anxiety of waiting for her test results for sexually transmitted diseases. She expressed her desire that Appellant receive the maximum penalty allowed by law.
{¶ 6} The prosecutor pointed out at sentencing that Appellant was under a community control sanction when he was arrested for the crimes in the instant case. The prosecutor recommended that the maximum prison term be imposed. The trial judge noted the victim‘s injuries, and also stated that, “you have been given a distinct advantage * * * when your lawyer was able to get one very serious count reduced and another count thrown out against you. Otherwise, you would be facing a heck of a lot more time than what you‘re facing right now.” (6/15/06 Tr., p. 17.) The court sentenced Appellant to the maximum prison term, five years in prison, as well as a $5,000 fine, which was suspended. Appellant filed a delayed appeal on July 25, 2006, which was accepted by this Court.
ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM SENTENCE UPON THE DEFENDANT/APPELLANT AND THE MAXIMUM SENTENCE IS CONTRARY TO LAW BECAUSE THE COURT FAILED TO PROPERLY CONSIDER AND BALANCE THE PRINCIPALS [sic] AND PURPOSES OF SENTENCING SET FORTH IN R.C. §
{¶ 8} On February 27, 2006, the Ohio Supreme Court issued State v. Foster. Foster determined that certain felony sentencing statues violated the Sixth Amendment right to trial by jury. Foster held that the felony sentencing statutes improperly mandated that the trial court, rather than a jury, make certain findings in order to impose sentences that were more than the minimum set forth in the statute, as well as consecutive and maximum sentences. Foster declared that thе statues establishing mandatory judicial findings are unconstitutional, severed the offending
{¶ 9} In State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, which was a companion case to Foster, the Ohio Supreme Court stated:
{¶ 10} “Although after Foster the trial court is no longer compelled to make findings and give reasons at the sentencing hearing because
{¶ 11} After Foster, felony sentences are reviewed for abuse of discretion. Furthermore, a felony sentence may be reversed, modified, or vacated only if the appellate court clearly and convincingly finds that the sentence is contrary to law.
{¶ 12} Appellant was sentenced on June 15, 2006, a few months after the Foster opinion was released. Appellant acknowledges that the trial court sentenсed him under the standard set forth in Foster, and there are no allegations that the trial court relied on unconstitutional statutory provisions in formulating the sentence.
{¶ 13} As long as a trial court considers the purposes of felоny sentencing found in
{¶ 14} We have recently held that the sentencing judge is not required to makе any specific findings on the record in order to establish that it considered the seriousness and recidivism factors set forth in
{¶ 15} Appellant argues that the trial court did not set forth which sentencing factors, if any, it was considering. Appellant is mistaken. The sentencing hearing transcript makes it clear that the judge was particularly moved by the victim‘s physical
{¶ 16} Appellant‘s second argument in this appeal is that the trial court improperly considered dismissed charges as factors in sentеncing. Appellant is correct that it is generally considered to be reversible error for the trial court to, “impose a more severe sentence because of the trial court‘s belief that the jury was mistaken in finding the defendant not guilty of another offense.” State v. Patterson (1996), 110 Ohio App.3d 264, 270-271, 673 N.E.2d 1001. The lesson of Patterson has little to do with this case, however. Appellant was not tried by a jury and was not acquitted of the two other charges that were originally filed against him. The rape сharge was dismissed based on the plea agreement. A dismissal in this context is not equivalent to an acquittal because the dismissed charges can be reinstated if the plea deal fails. One of the incentives for а defendant to follow the terms of a plea agreement is the knowledge that a breach of the agreement will likely result in a reinstatement of all charges, even those charges dismissed as part of the plea. Appellant was not acquitted of any of the crimes mentioned at sentencing, and the
{¶ 17} Courts have consistently held that evidence of other crimes, including crimes that never result in criminal charges being pursued, or criminal charges that are dismissed as a result of a plea bаrgain, may be considered at sentencing. State v. Cooey (1989), 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (such uncharged crimes are part of the defendant‘s social history and may be considered); State v. Tolliver, 9th Dist. No. 03CA0017, 2003-Ohio-5050, ¶ 24 (uncharged crimes in a presentence investigation report may be a factor at sentencing); United States v. Mennuti (C.A.2, 1982), 679 F.2d 1032, 1037 (similar though uncharged crimes may be considered); United States v. Needles (C.A.2, 1973), 472 F.2d 652, 654-56 (a dropped count in an indictment may be considered in sentencing). This has long been the rule in Ohio:
{¶ 18} “[I]t is well-established that a sentencing court may weigh such factors as arrests for other crimes. As noted by the Second Circuit United States Court of Appeals, the function of the sentencing court is to acquire a thorough grasp of the character and history of the defendant before it. The court‘s considеration ought to encompass negative as well as favorable data. Few things can be so relevant as other criminal activity of the defendant[.]” State v. Burton (1977), 52 Ohio St.2d 21, 23, 368 N.E.2d 297.
{¶ 19} The trial judge did not commit error by referring to the dismissed kidnapping сharge or the fact that Appellant was originally indicted on a rape charge. The fact that Appellant was convicted of receiving stolen property was recognized by
{¶ 20} Both of Appellant‘s arguments are without merit. His sole assignment of error is overruled. The conviction and sentence are affirmed in full.
Donofrio, J., concurs.
Vukovich, J., concurs.