State v. TroglinState v. Troglin
OPINION
{¶ 1} Defendant-appellant, Marcus Troglin, brings this appeal from the December 2, 2005 judgment of the Court of Common Pleas, Union County, Ohio, denying his motion for post-conviction relief. In this appeal, Troglin argues that his sentence is unconstitutional based on the United States Supreme Court decisions in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, and United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738. Although Troglin‘s appeal has been placed on the accelerated calendar, this Court elects to issue a full opinion pursuant to Loc.R. 12(5).
{¶ 2} Troglin was found guilty following a jury trial of one count of felonious assault in violation of
{¶ 3} We recounted the facts of Troglin‘s case in our previous decision, so we will touch on them only briefly here. The charges against him arose after his son Ian was taken to Convenient Care in Marysville, Ohio. Troglin‘s wife Amber took Ian to Convenient Care, believing that he had fractured ribs. The treating physician noticed multiple bruises on Ian‘s chest, head, and thighs; the doctor also reported that Ian was having trouble breathing and that his chest was “crackling.” Ian was then immediately sent by ambulance to Union County Memorial Hospital, where X-rays were taken. The X-rays showed serious trauma to his torso, including multiple rib fractures on both sides, with two ribs having been fractured in two different places. After Ian was stabilized, he was transported to Children‘s Hospital in Columbus, Ohio. X-rays taken upon his arrival revealed further injuries, included a fractured clavicle and collarbone. The treating physician at Children‘s Hospital also discovered spiral fractures on Ian‘s lower legs.
{¶ 4} Troglin reported that the injuries probably occurred in an accident that happened several days before, where Ian had flipped over in his ExerSaucer, a children‘s “bouncy” seat. He also reported that Ian had been struck by his brother with a wiffle ball bat. However, doctors at trial testified that the injuries were inconsistent with these explanations, and that they were instead consistent with Ian having been involved in an automobile accident where he was unrestrained. The doctors also indicated that the injuries were recently incurred, which was also inconsistent with Troglin‘s explanation. The physician at Memorial Hospital testified that she believed Ian‘s injuries had occurred within a few hours of Ian‘s arrival at the hospital.
{¶ 5} Ultimately, Troglin was convicted of the charges against him. He was sentenced to seven years imprisonment on the felonious assault charge, and four years for the first child endangering charge in violation of
{¶ 6} While the initial appeal was pending, Troglin filed a motion for post-conviction relief pursuant to
The trial court erred when it sentenced the defendant under an unconstitutional system. The trial court erred when it sentenced defendant, a first time offender, to a more-than-the minimum sentence based on facts found by a judge not a jury, nor admitted by the defendant. The trial court erred by allowing the imposition of consecutive sentences based on facts not found by a jury, nor admitted to by the defendant, violating his rights guaranteed by the Sixth Amendment.
{¶ 7} In these assignments of error, Troglin argues that his sentences violated the Court‘s decisions in Blakely and Booker. Those cases reaffirmed the Court‘s previous holding in Apprendi v. New Jersey (2000), 530 U.S. 466, that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. In Blakely, the Court held that the relevant “statutory maximum” for Apprendi purposes “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303-4. Thus, pursuant to Blakely, a trial court is prohibited from using factual findings other than those reflected in the jury verdict or admitted by the defendant to increase an offender‘s sentence.
{¶ 8} Subsequent to the filing of his appeal, the Supreme Court of Ohio addressed the applicability of these two cases to Ohio‘s felony sentencing scheme in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. The Foster court held that two statutes applicable to the imposition of Troglin‘s prison sentence were unconstitutional in violation of the Sixth Amendment pursuant to Blakely. First, the Court held that
{¶ 9} Thereafter, this Court held that because the Foster decision rendered sentences based on these unconstitutional statutes void, a person was permitted to appeal his sentence by way of a petition for post-conviction relief. State v. Bulkowski, Seneca App. No. 13-05-43, 2006-Ohio-1888, at ¶ 12-13. Specifically, the post-conviction statute,
{¶ 10} However, the fact that Foster determined that sentences rendered pursuant to
Except as otherwise provided in section
2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication * * *.
{¶ 11} In the instant case, Troglin filed his direct appeal with this court on October 15, 2004, and the trial transcript was filed on that same date. Troglin did not file his petition for post-conviction relief until August 8, 2005, well outside of the 180-day period for filing pursuant to
{¶ 12} Based on the foregoing, the trial court lacked jurisdiction to consider Troglin‘s motion for post-conviction relief. Troglin‘s assignments of error are therefore overruled, and the judgment of the trial court is hereby affirmed.
Judgment Affirmed.
Bryant, P.J. and Cupp, J., concur.