State v. WilliamsState v. Williams
For Plaintiff-Appellee
ROBERT L. SMITH ASSISTANT PROSECUTOR 27 North Fifth Street Zanesville, Ohio 43701
For Defendant-Appellant
DAVID A. SAMS Post Office Box 40 West Jefferson, Ohio 43162
Wise, J.
{¶1} Appеllant Eric M. Williams appeals his conviction for forgery and theft in the Court of Common Pleas, Muskingum County. The rеlevant facts leading to this appeal are as follows.
{¶2} On October 1, 2008, appellant was indiсted on one count of forgery,
{¶3} Pursuant to negotiations between appellant and the prosecutor, аppellant agreed to plead guilty to both charges in exchange for the State‘s recоmmendation that appellant serve an aggregate term of six months in prison. It is undisputed that during the plea colloquy, the trial court did not specifically advise appellant of the requirement that he must be convicted by a unanimous jury.
{¶4} On January 12, 2009, following a presentence investigation, the trial court, despite the State‘s recommendation, sentenced appellant to a prison term of twelve months (twelve months for forgery, six months for theft, to be served concurrently).
{¶5} On February 11, 2009, appellаnt filed a notice of appeal. He herein raises the following two Assignments of Error:
{¶6} “I. THE DEFENDANT-APPELLANT‘S PLEA WAS UNKNOWING, UNINTELLIGENT AND INVOLUNTARY UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS HE WAS NOT APPRISED OF HIS CONSTITUTIONAL RIGHT TO JURY UNANIMITY.
I.
{¶8} In his First Assignment of Error, appellant contends the trial court failed to ensure that his guilty plea was knowing, voluntary, and intelligent, where appellant was not informed of his right to have the State obtain a unanimous jury verdict.1 We disagree.
{¶9}
{¶10} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defеndant personally and doing all of the following:
{¶11} “(a) Determining that the defendant is making the plea voluntаrily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicablе, that the defendant is not eligible for probation or for the imposition of community control sanсtions at the sentencing hearing.”
{¶12} In accepting a guilty plea, a trial court must substantially comply with
{¶14} Accordingly, appellant‘s First Assignment of Error is overruled.
II.
{¶15} In his Second Assignment of Error, appellant contends his sentence by the trial court deprived him of his constitutional right to due process. We disagree.
{¶16} Appellant essentially argues that in light of the decision оf the United States Supreme Court in Oregon v. Ice (2009), --- U.S. ----, 129 S.Ct. 711, 172 L.Ed.2d 517, it is necessary that Ohio trial courts return to the felony sentencing schеme in place prior to the Ohio Supreme Court‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.
{¶17} In State v. Elmore, --- Ohio St.3d ----, 2009-Ohio-3478, the Ohio Supreme Court recently summarized Oregon v. Ice as “a case that held that a jury dеtermination of facts to impose consecutive rather than concurrent sentences was not necessary if the defendant was convicted of multiple offenses, each involving discrete sentencing prescriptions.” Elmore at ¶ 34. However, the Ohio Supreme Court did not therein discuss all of the ramifications of Ice, as neither party in Elmore had briefed the issue prior to oral argument.
{¶18} In State v. Mickens, Franklin App.No. 08AP-743, 2009-Ohio-2554, the Tenth District Court of Appeals indicated that judicial review of some of Ohio‘s current
{¶19} At this junсture, we concur with the State‘s position that Ice represents a refusal to extend the impact of the Apprendi and Blakely line of cases, rather than an overruling of them as suggеsted by appellant. We will thus herein adhere to the Ohio Supreme Court‘s decision in Foster, which holds that judiciаl fact finding is not required before a court imposes non-minimum, maximum or consecutive prison terms. State v. Hanning, Licking App.No. 2007CA00004, 2007-Ohio-5547, ¶ 9. Trial courts have full discretion to impose a prison sentence within the statutory ranges, although Foster does require trial courts to “consider” the general guidance factors contained in
{¶20} Appellant in this instance was convicted, in addition to the misdemeanor theft charge, of one felony of the fifth degree, i.e., forgery, which carries a potential determinate sentence of six to twelve mоnths. Upon review, we find nothing in the record that would suggest that the trial court selected the sentence arbitrarily, based the sentence on impermissible factors, or failed to consider permissible fаctors. We are thus
{¶21} Appellant‘s Second Assignment of Errоr is therefore overruled.
{¶22} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Muskingum County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Delaney, J., concur.
/S/ JOHN W. WISE___________________
/S/ SHEILA G. FARMER_______________
/S/ PATRICIA A. DELANEY____________
JUDGES
JWW/d 0909
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs assessed to appellant.
/S/ JOHN W. WISE___________________
/S/ SHEILA G. FARMER_______________
/S/ PATRICIA A. DELANEY____________
JUDGES