State v. TenneyState v. Tenney
Criminal Appeal from the Court of Common Pleas, Case No. 2008 CR 235.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Michael A. Partlow, Morganstern, MacAdams & DeVito Co., L.P.A., 623 West St. Clair Avenue, Cleveland, OH 44113-1204 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Donald D. Tenney, Sr., appeals the judgment of the Ashtabula County Court of Common Pleas sentencing him on one count of sexual battery and one count of gross sexual imposition. For the following reasons, we affirm the judgment of the trial court.
{¶2} Appellant was indicted on three counts of rape, two counts of attempted rape, two counts of sexual battery, and two counts of gross sexual imposition.
{¶4} Appellant was sentenced to a five-year term of incarceration on the sexual battery charge and an 18-month term of incarceration on the gross sexual imposition charge. The sentences were ordered to be served consecutively.
{¶5} Appellant sought a delayed appeal, which was permitted by this court.
{¶6} As appellant‘s first and second assignments of error are interrelated, we address them in a consolidated fashion. On appeal, appellant alleges:
{¶7} “[1.] The trial court erred by imposing a sentence upon appellant that is clearly and convincingly contrary to law.
{¶8} “[2.] The trial court abused its discretion by imposing maximum and consecutive sentences upon appellant.”
{¶9} At the outset, we note that appellant was sentenced on December 31, 2008, prior to the United States Supreme Court‘s decision in Oregon v. Ice (2009), 555 U.S. 160, released on January 14, 2009, as well as the effective date of the General Assembly‘s reenactment of
{¶11} In Kalish, the Supreme Court of Ohio, in a plurality opinion, held that felony sentences are to be reviewed under a two-step process. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26. The Court held:
{¶12} “First, [appellate courts] must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” Id.
{¶13} The Kalish Court affirmed the sentence of the trial court as not being contrary to law, since the trial court expressly stated that it had considered the
{¶14}
{¶15} An abuse of discretion is the trial court‘s “‘failure to exercise sound, reasonable, and legal decision-making.‘” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, at ¶61-62, quoting Black‘s Law Dictionary (8 Ed.Rev.2004) 11.
{¶16} Appellant pled guilty to one count of sexual battery, a felony of the third degree, and one count of gross sexual imposition, a felony of the fourth degree. The statutory range for a third-degree felony is one to five years.
{¶18} Upon a review of the record, we do not determine that the trial court‘s sentence is clearly and convincingly contrary to law. Furthermore, taking all of the above into consideration, we cannot find that the trial court abused its discretion by sentencing appellant within the statutory range.
{¶19} Appellant‘s first and second assignments of error are without merit. Accordingly, the judgment of the Ashtabula County Court of Common Pleas is hereby affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶20} I concur in the majority‘s ultimate decision to affirm the sentence imposed by the Ashtabula County Court of Common Pleas.
{¶21} I write separately because of the majority‘s reference to the “reenactment of
{¶23} The Ohio Supreme Court has long held: “Where there is reenacted in an amendatory act provisions of the original statute in the same or substantially the same language and the original statute is repealed in compliance with Section 16, Article II of the Constitution, such provisions will not be considered as repealed and again reenacted, but will be regarded as having been continuous and undisturbed by the amendatory act.” In re Allen (1915), 91 Ohio St. 315, at paragraph one of the syllabus.
{¶24} Thus, the inclusion of
{¶25} This conclusion is demonstrated by considering a similar situation from Ohio legal history. In 1997, the General Assembly enacted
{¶26} Attorneys for political subdivisions continued to file interlocutory appeals of such orders, arguing that this provision had been re-enacted by subsequent amendments to the statute. This argument was rejected by every appellate court of which I am aware. See, e.g., Tignor v. Franklin Cty. Bd. of Commrs., 10th Dist. No. 99AP-571, 2000 Ohio App. LEXIS 1814, at *7; Taylor v. Cty. of Cuyahoga, 8th Dist. No. 75473, 2000 Ohio App. LEXIS 137, at *4.
{¶27} This position was unequivocally rejected by the Ohio Supreme Court in Stevens v. Ackman, 91 Ohio St.3d 182, 2001-Ohio-249, at paragraph two of the syllabus (”
{¶28} Accordingly, I do not agree that