STATE OF OHIO, PLAINTIFF-APPELLEE vs. JAMES E. WATTERS, DEFENDANT-APPELLANT
No. 97656
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 23, 2012
2012-Ohio-3809
BEFORE: E. Gallagher, J., Blackmon, A.J., and Stewart, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-543396. RELEASED AND JOURNALIZED: August 23, 2012.
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Aaron Brockler
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant James E. Watters appeals his conviction and sentence from the Cuyahoga County Court of Common Pleas. Watters argues the trial court erred in denying his motion to withdraw his guilty plea, in ordering his telephone and mail privileges suspended, in sentencing him to a 28-year prison sentence and in failing to correctly impose postrelease control. For the following reasons, we affirm in part, reverse in part, and remand the matter for proceedings consistent with this opinion.
{¶2} On October 28, 2010, a Cuyahoga County grand jury returned an indictment charging Watters with aggravated murder with one and three-year firearm specifications, carrying a concealed weapon, having weapons under disability and tampering with evidence.
{¶3} On June 14, 2011, the state presented evidence to the court at a pretrial conference that Watters was using the county jail‘s telephone system to manufacture alibis and threaten potential witnesses. Based upon this evidence, the court ordered the cessation of Watters‘s phone and mail privileges. On October 18, 2011 during a hearing on pending motions, Watters expressed to the court his dissatisfaction with the restriction of his phone and mail privileges. Appellant stated, “I don‘t understand the purpose of the phone and mail restrictions.” Tr. 27. The court reiterated its rationale for the
{¶4} On November 7, 2011, appellant withdrew his not guilty plea and pleaded guilty to aggravated murder with one and three-year firearm specifications as charged in the indictment. In return, the state dismissed the remaining charges. After the change of plea was entered, the court heard from members of the victim‘s family, the arresting officer, members of the appellant‘s family, the appellant‘s attorney, the state‘s attorney and the appellant. The court then sentenced appellant to consecutive terms of three years on the firearm specification and 25 years to life on the charge of aggravated murder with parole eligibility after 28 years. During sentencing, the court noted that it considered all of the requirements under
{¶5} In the court‘s journal entry for the sentencing hearing, however, the court included language stating that “post release control is part of this prison sentence for 5 years mandatory for the above felony(s) under
{¶6} On December 6, 2011, the appellant filed his notice of appeal to the court. Watters‘s notice of appeal stated that he was appealing “from the judgment of conviction” and included the court‘s journal entry from the November 7, 2011 sentencing hearing. In the section designated for a brief summation of anticipated assignments of error, the appellant included no information. The form has since
{¶7} After Watters filed the instant appeal, he filed a motion with the trial court to withdraw his guilty plea that the court denied on January 12, 2012.
{¶8} In his first assignment of error, Watters argues that the trial court erred in failing to grant his motion to withdraw his guilty plea. In his second assignment of error, Watters argues that the trial court violated his constitutional rights when it terminated his telephone and mail privileges. These assignments of error shall be addressed contemporaneously.
{¶9} Appellant‘s notice of appeal fails to include the journal entries for the denial of his motion to withdraw his guilty plea and the court‘s order that his phone and mail privileges be removed. Furthermore, appellant makes no mention of these potential assignments of error anywhere in his notice of appeal. The only journal entry included in appellant‘s notice of appeal is that of his sentencing hearing. Thus, appellant has failed to separately appeal these issues.
{¶10}
{¶11} In the present case, Watters failed to comply with
{¶12} In his third assignment of error, Watters argues that the trial court abused its discretion in sentencing him to a 28-year prison sentence. Specifically, Watters argues that his sentence was not consistent with that of similarly situated offenders, and that the court failed to consider the required statutory factors under
{¶13} The Ohio Supreme Court established the proper standard of review for sentencing determinations in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; State v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, ¶ 16, fn.2.
{¶14} Appellate courts must first “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.” Kalish at ¶ 4. If the first prong is satisfied, then we review the trial court‘s decision under the abuse of discretion
{¶15} In this matter the appellant pleaded guilty to aggravated murder in violation of
{¶16} The trial court‘s sentencing journal reads in part: “The court considered all required factors of the law. The court finds that prison is consistent with the purpose of
{¶18} During his sentencing hearing, Watters did not raise the issue that his sentence was disproportionate to sentences given to other offenders with similar records who have committed the same offense, nor did he present evidence as to what a “proportionate sentence” might be. Therefore, he has not preserved the issue for appeal.
{¶19} Based on the foregoing, we conclude that Watters‘s sentence was not contrary to law. Similarly, we find no abuse of discretion on the part of the trial court. Accordingly, appellant‘s third assignment of error is overruled.
{¶20} In his fourth and final assignment of error, Watters argues that the trial court improperly imposed a term of postrelease control in this case.1 We agree.
each sentence to a prison term for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender‘s release from imprisonment.
{¶22} Thus, the statute does not apply to an unclassified felony, one of which is aggravated murder. The proper remedy in this case is to remand the case to the trial court in order to correct the journal entry. See State v. Evans, 8th Dist. No. 95692, 2011-Ohio-2153, ¶ 11.
{¶23} Watters‘s fourth and final assignment of error is sustained, in part.
{¶24} The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and MELODY J. STEWART, J., CONCUR
Appendix
Assignments of Error:
“I. THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA AND BY FAILING TO CONDUCT AN EVIDENTIARY HEARING ON THE MOTION.
“II. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE COURT DENIED HIM ACCESS TO PHONE AND MAIL PRIVILEGES PRIOR TO TRIAL.
“III. THE TRIAL COURT‘S IMPOSITION OF MORE THAN THE MINIMUM AVAILABLE SENTENCE WAS CONTRARY TO LAW AND AN ABUSE OF DISCRETION.
“IV. THE TRIAL COURT ERRED BY FAILING TO ADVISE APPELLANT OF POSTRELEASE CONTROL APPLICABLE TO HIS NON-CAPITAL OFFENSES AND THE SENTENCING JOURNAL ENTRY IMPROPERLY IMPOSED A TERM OF POSTRELEASE CONTROL FOR AGGRAVATED MURDER, AN UNCLASSIFIED FELONY.”