STATE OF OHIO, Plaintiff-Appellee, v. TERRY P. WARDLOW, JR., Defendant-Appellant.
CASE NO. CA2014-01-011
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/30/2014
[Cite as State v. Wardlow, 2014-Ohio-5740.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-07-1124
John T. Willard, Hamilton, P.O. Box 35, Ohio 45012, for defendant-appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Terry P. Wardlow, Jr., appeals his sentence by the Butler County Court of Common Pleas following his guilty plea to one count of involuntary manslaughter with a firearm specification. For the reasons set forth below, we affirm appellant‘s sentence.
{¶ 2} On November 12, 2013, in a superceding indictment, appellant was indicted by the Butler County Grand Jury on one count of murder, in violation of
{¶ 3} However, on November 22, 2013, pursuant to a negotiated plea agreement, appellant pled guilty to an amended offense under count one, for involuntary manslaughter, in violation of
{¶ 4} A sentencing hearing was held on December 18, 2013, and the trial court sentenced appellant as agreed by appellant and the state. Specifically, the trial court imposed a total sentence of 13 years, with ten years being imposed on the involuntary manslaughter conviction and three years on the firearms specification. The trial court also
{¶ 5} Appellant timely appealed his sentence raising two assignments of error for our review.2
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE SENTENCING COURT IN THE INSTANT CASE FAILED TO FULLY AND PROPERLY SET OUT THE FINDINGS REQUIRED BY
{¶ 8} Appellant argues in his first assignment that the trial court did not make all of the required findings under
{¶ 9} In challenging his sentence, appellant has failed to recognize that he was sentenced pursuant to an agreed sentence. During appellant‘s plea hearing, the following exchange took place:
THE COURT: * * * [I]n real terms, you‘re going to be sentenced to 13 years in prison given what the – the statement of the prosecutor that that is the – agreement of Counsel. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And also that – any prison sentence you get in this matter will be run consecutive to whatever time you‘re doing out of Hamilton County Common Pleas Court, you‘re aware of that.”
THE DEFENDANT: I‘m aware.
{¶ 11} In the present case, the record demonstrates that the first two conditions have been met as both appellant and the state agreed to appellant‘s 13-year sentence and that this sentence would be served consecutively to appellant‘s sentence in the Hamilton County case, and the trial court did in fact impose this agreed-upon sentence. Accordingly, the question before us is whether appellant‘s sentence is authorized by law.
{¶ 12} The Ohio Supreme Court has recently held that “[a] sentence is ‘authorized by law’ and is not appealable within the meaning of
{¶ 13} The only mandatory sentencing provision that is challenged in the instant case is
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense. - At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 14} When imposing consecutive sentences, a trial court is not required to articulate reasons to support its findings, or “to give a talismanic incantation of the words of the statute.” Bonnell at ¶ 29, 37. However, the record must be sufficient for a reviewing court to determine that the court has engaged in the required sentencing analysis and that the record contains evidence to support the findings. Id. at ¶ 29. In Bonnell, the Ohio Supreme Court clarified that a trial court must announce the requisite consecutive findings at the sentencing hearing, and the court must incorporate those findings into the sentencing entry. Id. at syllabus; Rich at ¶ 10.
{¶ 15} Here, the record reflects that the trial court made the findings required by
This Court finds that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. The court also finds that:
- Consecutive sentences are necessary to protect the public from future crime
- Consecutive sentences are necessary to punish the defendant
- The defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.
{¶ 16} In addition, a review of the transcript from the sentencing hearing indicates that the trial court made the same findings at the sentencing hearing that were incorporated into the judgment entry. Specifically, the trial court stated:
So the Court will make a finding, for the record, that the harm involved here was so great or unusual, because it is imposing a consecutive sentence to the sentence of another court, that it would not adequately reflect the seriousness of the conduct. And that the Court – the Defendant‘s criminal record shows that consecutive sentences are needed – are needed to protect the
public.
Accordingly, from the trial court‘s statements at the sentencing hearing and the language utilized in the sentencing hearing, it is clear that the trial court complied with the dictates of
{¶ 17} Based on the foregoing, appellant‘s sentence fully comported with all mandatory sentencing provisions and was therefore authorized by law. Because appellant‘s sentence was authorized by law and was jointly recommended by appellant and the state, we find his sentence is not subject to review pursuant to
{¶ 18} Assignment of Error No. 2:
{¶ 19} IT APPEARS FROM THE RECORD THAT THE COURT IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES, SENTENCED HIM TO A TERM IN EXCESS OF THAT ALLOWED UNDER
{¶ 20} In his second assignment of error, appellant contends the trial court erred in imposing a sentence in violation of
In addition to the right to appeal a sentence granted under division (A) or (B) of this section, a defendant who is convicted of or pleads guilty to a felony may seek leave to appeal a sentence imposed upon the defendant on the basis that the sentencing judge has imposed consecutive sentences under division (C)(3) of section
2929.14 of the Revised Code and that consecutive sentences exceed the maximum prison term allowed by division (A) of that section for the most serious offense of which the defendant was convicted.
Appellant essentially argues that because his “most serious offense” was involuntary manslaughter, a first-degree felony under
{¶ 21} As an initial matter, we note that
{¶ 22} However, even if appellant‘s sentence was reviewable, the trial court did not err in sentencing appellant. We join with our sister districts and find that
{¶ 24} The second assignment of error is therefore overruled.
{¶ 25} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.