State v. YoungState v. Young
{¶ 2} On appeal, appellant sets forth three assignments of error:
{¶ 3} "1. The administrative court judge erred when he assigned a different judge to resentence the defendant when there was no evidence that the original sentencing judge was unavailable.
{¶ 4} "2. The resentencing judge erred when she made additional findings to justify consecutive sentences.
{¶ 5} "3. The resentencing judge erred by imposing consecutive sentences in violation of the United States vs.Booker and Blakely vs. Washington."
{¶ 6} The facts relevant to the issues raised on appeal are as follows. On September 18, 2002, appellant was indicted under case No. 2002-CR-429 on the following 10 counts: 1) trafficking in cocaine in violation of
{¶ 7} On November 15, 2002, the grand jury again indicted appellant, this time under case No. 2002-CR-531, on the following three unrelated counts: 1) possession of crack cocaine in violation of
{¶ 8} The cases were consolidated for purposes of a jury trial on May 8, 2003, before Judge Terrence O'Donnell. This trial took place before Judge O'Donnell was appointed as a Justice to the Supreme Court of Ohio. Appellant was convicted on all counts except the assault offense under case No. 2002-CR-531. Judge O'Donnell found the shortest prison term would demean the seriousness of appellant's conduct, and it would not adequately protect the public from future crimes by appellant pursuant to
{¶ 9} Appellant filed a notice of appeal on the same day. Upon review, this court affirmed the conviction, but remanded the case to the trial court for resentencing because the court below failed to align its findings with its reasons for imposing consecutive sentences. State v. Young, 6th Dist. Nos. E-03-033, E-03-031,
{¶ 10} Upon remand, Judge O'Donnell was unavailable for the resentencing due to his appointment to the Supreme Court of Ohio. The Honorable Beverly K. McGookey was assigned by the administrative judge to preside over the resentencing. Appellant objected to Judge McGookey's assignment, but was overruled based on
{¶ 11} At the resentencing hearing held on January 20, 2005, Judge McGookey made additional findings supporting consecutive sentences in compliance with this court's instructions. Appellant was resentenced in case No. 2002-CR-429 on the prior 10 counts with a term of imprisonment totaling 19 years. Appellant was also resentenced in case No. 2002-CR-531 on the prior two counts with a term of imprisonment totaling three years. Whereas Judge O'Donnell ordered the sentences in both cases run consecutively, Judge McGookey ordered the sentences under both cases to run concurrently. This decreased appellant's overall term of imprisonment from 22 years to 19 years. Appellant then filed a timely notice of appeal.
{¶ 12} In his first assignment of error, appellant makes two distinct arguments. First, he asserts the administrative judge erred when he assigned Judge McGookey to preside over the resentencing. Second, he asserts there is no evidence in the record to establish that Justice O'Donnell was unavailable to preside over the resentencing.
{¶ 13} Appellant's argument that Judge McGookey's assignment was in error is not well-founded.
{¶ 14} In Green, the original trial judge, Judge Elliot, retired shortly after the appellant's trial and verdict, but prior to his sentencing. Judge Bressler assumed his docket prior to sentencing. Upon review, the 12th District Court of Appeals stated, "[W]e find it entirely proper, pursuant to
{¶ 15} Appellant's argument there is no evidence to support Justice O'Donnell's unavailability is equally unfounded. The Supreme Court of Ohio has laid out clear guidelines regarding the assignment of judges. The Supreme Court of Ohio Guidelines for Assignment of Judges were originally adopted on May 24, 1988. Guideline 14(d) explicitly states, "A Supreme Court justice may serve on the Court of Claims or a court of appeals." Therefore, Justice O'Donnell could not have returned to the Erie County Court of Common Pleas. The guidelines clearly prevent him from presiding over the resentencing.
{¶ 16} Moreover, Justice O'Donnell did not need to give an explicit reason for his unavailability.
{¶ 17} In his second assignment of error, appellant argues Judge McGookey had "no ability" to make additional findings justifying consecutive sentences. Appellant asserts Judge McGookey was incapable of making additional findings because she had not heard the evidence at trial. The logic behind this argument is flawed.
{¶ 18} Here again, appellant seeks to ignore the plain language of
{¶ 19} In State v. Fitzpatrick (May 4, 1994), 1st Dist. Nos. C-930413, C-930439, B-927123, B-928955, the original trial judge was unavailable. The judge assigned to the sentencing hearing stated on the record he had familiarized himself with the case and was prepared to proceed. Here, Judge McGookey followed suit. It is clear from the sentencing transcript she was aware of
{¶ 20} Further, a trial court has broad discretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless an abuse of discretion has occurred.State v. Yontz (1986),
{¶ 21} In appellant's third assignment of error, he renews his objections based on Blakely v. Washington (2004),
{¶ 22} On consideration whereof, this court finds appellant was not prejudiced and the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Handwork, J. Singer, P.J. Parish, J. concur.