State v. Troglin, 14-06-57 (8-27-2007)State v. Troglin, 14-06-57 (8-27-2007)
{¶ 1} Defendant-Appellant, Marcus L. Troglin, appeals the judgment of the Union County Court of Common Pleas, sentencing him to more than the minimum prison terms, consecutive prison terms, and ordering him to pay restitution, fines, and court costs. On appeal, Troglin asserts that the trial court erred in imposing a sentence greater than the statutory maximum; that the trial court erred by utilizing secret out of court testimony in sentencing him; that the trial court erred in sentencing him to an increased prison term; that the trial court erred in assigning court costs and excessive fines; and, that the trial court lacked jurisdiction to resentence him. Based on the following, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
{¶ 2} In February 2004, the Union County Grand Jury indicted Troglin for one count of felonious assault in violation of
{¶ 3} In September 2004, a jury convicted Troglin on all three counts of the indictment. Subsequently, the trial court sentenced Troglin to a seven-year prison term on the felonious assault conviction and to a four-year term on each of
{¶ 4} In October 2004, Troglin appealed his conviction and sentence.
{¶ 5} In December 2004, Troglin‘s counsel moved to withdraw from the case because Troglin‘s family could no longer afford to pay him to represent Troglin.
{¶ 6} In April 2005, the trial court appointed appellate counsel to represent Troglin.
{¶ 7} In August 2005, while his direct appeal was pending, Troglin filed a pro se petition for post-conviction relief.
{¶ 8} On December 2, 2005, the trial court denied Troglin‘s petition for post-conviction relief. Also, on December 12, 2005, we decided Troglin‘s direct
{¶ 9} In March 2006, Troglin filed a pro se request for the trial court judge to recuse himself and filed an affidavit in support of his request with the clerk of courts for the Union County Court of Common Pleas.
{¶ 10} In June 2006, we affirmed the trial court‘s denial of Troglin‘s August 2005 petition for post-conviction relief. See State v. Troglin, 3d Dist. No. 14-05-56, 2006-Ohio-2791. Subsequently, Troglin moved under Civ.R. 60(B) to vacate his sentence pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, which the trial court never ruled upon.
{¶ 11} In November 2006, on remand from Troglin I, the trial court1 conducted a resentencing hearing, where it allowed both Troglin and his counsel to speak before sentencing Troglin. Also, the trial court noted that it had “considered the oral statements, victim impact statement, and reread the [PSI].” (Nov. 2006 Tr., p. 11). Additionally, the trial court ordered Troglin to pay the costs of prosecution, restitution, and fines, finding that Troglin was “in fact a young person and that [he has] the potential after [he is] released of — that [he has] — [he doesn‘t] have a physical problem or a mental problem that would prevent [him] from — from generating income.” (Nov. 2006 Tr., p. 12). Subsequently, the trial court issued its judgment entry, wherein it provided that it had considered “the record, oral statements, the victim impact statement and [PSI], as well as the principles and purposes of sentencing,” and resentenced Troglin to a seven-year prison term for the felonious assault conviction and to a four-year prison term on each of the endangering convictions, with “all three convictions and their sentences to be served consecutive to each other.” (Nov. 2006 Judgment Entry, pp. 1-2). Additionally, the trial court ordered Troglin to pay costs, restitution in the amount of $51,608.22, a $20,000 fine for the felonious assault conviction, and a $10,000 fine for each of the endangering convictions.
{¶ 12} It is from this judgment that Troglin appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT SUBJECTED DEFENDANT TO A SENTENCE GREATER THAN THE STATUTORY MAXIMUM BASED UPON A PREPONDERANCE OF EVIDENCE.
Assignment of Error No. II
THE TRIAL COURT ERRED WHEN IT UTILIZED SECRET OUT OF COURT TESTIMONY TO DETERMINE DEFENDANT‘S SENTENCE.
Assignment of Error No. III
THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO AN INCREASED TERM.
Assignment of Error No. IV
TRIAL COURT ERRED WHEN IT ASSIGNED COURT COSTS AND EXCESSIVE FINES TO DEFENDANT CONTRARY TO ORC
2929.19(B)(4) AND ORC2929.18(B)(1) AS WELL AS A VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.
Assignment of Error No. V
TRIAL COURT DID NOT HAVE JURISDICTION TO RESENTENCE DEFENDANT.
{¶ 13} Due to the nature of Troglin‘s assignments of error, we elect to address them out of order. Additionally, we note at the outset that, in Troglin I,
Assignment of Error No. V
{¶ 14} In his fifth assignment of error, Troglin asserts that the trial court lacked jurisdiction to resentence him. Specifically, Troglin contends that, because the trial court did not rule upon his March 2006 request for recusal of the trial court judge, the trial court lacked jurisdiction to resentence him in November 2006 under
{¶ 15}
{¶ 16} Here, Troglin failed to file his affidavit of disqualification with the clerk of the supreme court as required under
{¶ 17} Accordingly, we overrule Troglin‘s fifth assignment of error.
Assignment of Error No. III
{¶ 18} In his third assignment of error, Troglin asserts that the trial court erred in sentencing him to an increased term. Specifically, Troglin contends that the trial court erred in ordering that his sentence for the second degree felony endangering conviction be served consecutively to the remainder of his sentence. We agree.
{¶ 19} The United States Supreme Court held that a trial court violates the Due Process Clause of the
{¶ 20} It is implicit in sentencing or resentencing that, along with determining the number of years of a prison term, a sentencing court also has the authority to order the prison term to be served either concurrently or consecutively to other sentences in a multi-count conviction. See, e.g. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 9; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶ 100. In the context of resentencing, “when one or more counts of a multi-count conviction are vacated and remanded, a court does not violate the principles of Pearce as long as the aggregate length of the new sentence does not exceed the total length of the original sentence.” State v. Nelloms (2001), 144 Ohio App.3d 1, 7, appeal not allowed by State v. Nelloms (2001), 93 Ohio St.3d 1428; see also State v. Pearson (1998), 130 Ohio App.3d 577, 586 (implying that order of
{¶ 21} Notably, following Foster, which held that trial courts are no longer required to make findings of facts before imposing sentences within the statutory guidelines or ordering consecutive sentences, the principles of Pearce still apply regarding harsher sentences imposed on remand following a successful appeal. State v. Davis, 2nd Dist. No. 2006 CA 69, 2007-Ohio-1030, ¶ 27, citing State v. Mitchell, 2nd Dist. No. 21020, 2006-Ohio-1602, ¶ 12. Likewise, remanding for resentencing on a conviction erroneously classified as to the level of felony does not nullify the principles of Pearce.
{¶ 22} Here, Troglin‘s original September 2004 sentence consisted of a seven-year prison term for the felonious assault conviction and four-year prison terms for each of the endangering convictions, with the endangering convictions to run concurrently to each other, but consecutive to the felonious assault count, for an aggregate eleven-year prison term. When the same trial court judge resentenced Troglin on the second degree felony endangering conviction in November 2006, he again imposed a four-year prison term, but ordered it to run consecutive to the third degree felony endangering count, as well as to the first degree felonious assault conviction. Thus, Troglin‘s aggregate sentence was increased from eleven years to fifteen years, giving rise to a presumption of
{¶ 23} Accordingly, we sustain Troglin‘s third assignment of error.
Assignment of Error No. I
{¶ 24} In his first assignment of error, Troglin asserts that the trial court erred in imposing a sentence greater than the statutory maximum based upon a preponderance of the evidence. Specifically, Troglin contends that State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, violated the due process and ex post facto clauses under the Ohio Constitution. We disagree.
{¶ 25} The Foster Court addressed constitutional issues concerning felony sentencing, holding that portions of Ohio‘s felony sentencing framework requiring judicial findings before imposition of more than the minimum, maximum, and consecutive sentences were unconstitutional and severing those portions. Foster, 109 Ohio St.3d at ¶ 100. Following Foster, trial courts “are no longer required to
{¶ 26} Here, Troglin violated
{¶ 27} Accordingly, we overrule Troglin‘s first assignment of error.
Assignment of Error No. II
{¶ 28} In his second assignment of error, Troglin asserts that the trial court erred by utilizing secret out of court testimony from the PSI to determine his sentence. We disagree.
{¶ 29} We note at the outset that Troglin did not provide a copy of the PSI. An appellant has a duty to ensure that the record necessary to evaluate the assignment of error is filed with the appellate court. State v. Williams, 73 Ohio St.3d 153, 160-61, 1995-Ohio-275; App.R. 9(B). As such, we must presume regularity in the trial court‘s proceedings. State v. West, 3d Dist. No. 2-06-04, 2006-Ohio-5834, ¶ 53, citing State v. Estrada (1998), 126 Ohio App.3d 553, 556 and App.R. 9(B).
{¶ 30} Trial courts are statutorily authorized to order and use a PSI in sentencing an offender.
{¶ 31} Here, the trial court allowed both Troglin and his counsel to speak at the November 2006 sentencing hearing, but neither of them discussed the PSI or any alleged inaccuracies or “secret testimony” in the PSI. Troglin neither identified the alleged secret testimony contained in the PSI, nor provided any evidence that the trial court relied on such testimony in imposing his sentence.
{¶ 32} Additionally, while the trial court specifically referenced portions of the PSI when it originally sentenced Troglin in September 2004, the trial court made no such references to the PSI in resentencing him in November 2006. Instead, the trial court only noted that it had reread the PSI, as well as the rest of the record. To the extent Troglin asserts that the trial court improperly relied on the PSI when sentencing him in September 2004, he could have raised this issue on his direct appeal and failed to do so, and is barred from doing so now by res judicata. State v. Ybarra, 3d Dist. No. 12-05-05, 2005-Ohio-4913, ¶ 7, citing State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus.
{¶ 33} Accordingly, we overrule Troglin‘s second assignment of error.
Assignment of Error No. IV
{¶ 34} In his fourth assignment of error, Troglin asserts that the trial court violated
{¶ 35} As noted above, the trial court lacked jurisdiction to resentence Troglin regarding the original amount of court costs, restitution, the fine for his felonious assault conviction, and the fine for his third degree felony endangering conviction imposed in September 2004, because he failed to challenge them in his direct appeal and we affirmed them in Troglin I. Thus, Troglin‘s argument regarding the order to pay the costs of his September 2004 sentencing, the $51,608.22 in restitution, the $20,000 fine for the felonious assault conviction, and the $10,000 fine for the third degree felony endangering conviction is barred by res judicata. Accordingly, we will only consider Troglin‘s argument with respect to the trial court‘s imposition of costs and the $10,000 fine for his second degree felony endangering conviction from the November 2006 resentencing.
{¶ 36}
{¶ 37} Under
{¶ 38} Conversely,
{¶ 39}
{¶ 40} Here, Troglin argues that the trial court failed to consider his present and future ability to pay and the fact that he is indigent when it imposed the court costs and $10,000 fine for the second degree felony endangering conviction. Regarding court costs,
{¶ 41} Regarding imposition of the $10,000 fine for the second degree felony endangering conviction, a review of the record indicates that the trial court considered Troglin‘s present and future ability to pay by noting that he was a young person and had no mental or physical problems to prevent him from generating income upon his release from prison. Moreover, the trial court indicated that it had reviewed the PSI in sentencing Troglin, which typically contains the relevant financial information. Since Troglin failed to provide a copy of the PSI, we must presume regularity in the trial court‘s proceedings. State v. West, 3d Dist. No. 2-06-04, 2006-Ohio-5834, ¶ 53, citing State v. Estrada (1998), 126 Ohio App.3d 553, 556 and App.R. 9(B).
{¶ 42} Additionally, Troglin argues that
(B)(1) For a first, second, or third degree felony violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section. If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
Troglin‘s reliance upon
{¶ 43} Moreover, given our finding that the trial court complied with
{¶ 44} Accordingly, we overrule Troglin‘s fourth assignment of error.
{¶ 45} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, regarding his first, second, fourth, and fifth assignments of error, but having found error prejudicial to the appellant herein, in the particulars assigned and argued regarding his third assignment of error, we affirm in part, reverse in part, and remand the judgment of the trial court for further proceedings consistent with this opinion. On the authority under
Judgment affirmed in part, reversed in part, and cause remanded.
PRESTON and WILLAMOWSKI, JJ., concur.