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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

SENTENCING (040)

Also see Probation; Restitution; Community Service; Cruel and Unusual Punishment; Judgment; Indigency/Indigency as related to sentencing; Double Jeopardy; Plea Bargaining; Expungement; Parole; Allocution; Victims/Victim impact statements; Specifications; Allied Offenses of Similar Import.

 

Basics

Objectives; Assessing the offender and the gravity of the offense

Proportionality

Judicial conduct

Scheduling; continuances

Presentence investigation

Effect of prior record

Failure to provide counsel or obtain waiver; Use of uncounselled prior convictions to enhance penalty

Terms and options

Fines generally

Mandatory fines

Fines - ability to pay

Court costs

Community service

License suspensions

Forfeiture orders

The right to jury trial on facts related to sentencing

Maximum sentences generally

Maximum sentences, worst form of the offense

Multiple sentences in general

Consecutive sentences -- factual justification

Credit for time served

Postrelease control advisement

Execution of sentence

Sentence appeals generally

Standards for appellate review; jurisdiction of the court of appeals

Sentencing appeals - other issues

Misdemeanor sentence appeals

Sentence appeals by the prosecution

Modification; amplification; continuing jurisdiction

Corrections; Resentencing

Other issues

 

Chapter 2929 -- Penalties and sentencing.

R.C. 1.58 -- Effect of reenactment, amendment, or repeal.

Basics

Graham v. Florida (2010), 130 S.Ct. 2011 – A juvenile may not be sentenced to life without parole for a non-homicide offense. 16-year old initially was placed on probation for burglary, but was sentenced to life upon violation. Florida has eliminated parole. While the subject may end up serving life he must be given a meaningful opportunity to gain release. “Juvenile” means under 18.

State v. Banks, 185 Ohio App. 3d 648, 2010-Ohio-277 – Plea bargain called for concurrent one year sentences, but the defendant was admonished as to the importance of cooperating with the probation department. He missed the initial sentencing hearing because he had gone to visit a sister in Georgia and the car that was bringing him back had a flat tire. He promptly called counsel and turned himself in within 48 hours of the original hearing date. Imposing a sentence double the agreed term was not contrary to law, but was an abuse of discretion. He was not restricted to the state of Ohio by the terms of his bond and there was nothing in the record contradicting his claim he was unable to make the hearing.

State v. Jacobs, 189 Ohio App. 3d 283, 2010-Ohio-4010 – For a felony a court may not impose both a prison term and community control. Upon remand, if the defendant has completed the prison term, he may not be sentenced to community control. A court may not impose a lifetime ban from the premises of a shopping mall as community control sanctions are limited to five years. While an indigent may be fined, the record must demonstrate the court considered ability to pay.

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245 -- Syllabus: "(1) A sentence is the sanction or combination of sanctions imposed for each separate, individual offense. (2) The 'sentencing package' doctrine has no applicability to Ohio sentencing laws: the sentencing court may not employ the doctrine when sentencing a defendant and appellate courts may not utilize the doctrine when reviewing a sentence or sentences. (3)An appellate court may only modify, remand, or vacate a sentence for an offense that is appealed by the defendant and may not modify, remand, or vacate the entire multiple-offense sentence based upon an appealed error in the sentence for a single offense."

State v. Evans, 113 Ohio St. 3d 100, 2007-Ohio-861 -- The sentencing package doctrine does not apply to the combined sentence for an offense and specifications. Paragraph one of the syllabus: "An appellate court may not vacate and remand an entire sentence imposed upon a defendant when the error in sentencing pertains only to a sanction imposed for one specification." Nor should a court too readily find moot other assignments of error pertaining to sentencing when granting relief on one claim.

State v. Georgakopoulos, 152 Ohio App. 3d 288, 2003-Ohio-1531 -- The court is not required to impose the sentence jointly recommended by the prosecution and defense as part of a plea bargain where it was not a party to that agreement. Also see State v. Buchanan, 154 Ohio App. 3d 250, 2003-Ohio-4772.

State v. Baker, 152 Ohio App. 3d 138, 2002-Ohio-7295 -- Though "suspending" a sentence and imposing community control is a dubious practice under the current sentencing statutes, that issue had to be raised following imposition of the original sentence, and is waived by the time of an appeal from revocation proceedings. Addressing a variance between the 18-month "suspended" term announced in court and the 12-month term in the judgement entry, the latter is controlling. Also see State v. Vlad, 153 Ohio App. 3d 74, 2003-Ohio-2930 (including dissenting opinion); State v. Trussel, 153 Ohio App. 3d 83, 2003-Ohio-2933.

State v. Hollingsworth (2001), 143 Ohio App. 3d 652 -- A three judge panel determining the sentence in a capital case is governed by the specific statutes concerning aggravated murder, and not the statutes controlling sentencing in other felony cases.

State v. Paxton (2000), 139 Ohio App. 3d 48 -- Defendant was sentenced to community control including orders to serve sixty days in jail and up to sixty additional days at the discretion of the probation officer in the event of minor infractions. Delegation to the probation officer in this manner is a denial of due process. Court sidesteps determining whether it also violates separation of powers.

State v. Mitchell (2001), 141 Ohio App. 3d 770 -- Defendant pleaded guilty to attempted escape, a fourth degree felony, and was sentenced to "time served." Reversed. Only options available to the court were community control, which would require a presentence investigation, or a mandatory term of imprisonment.

State v. Fodal, Second Dist. App. No. 2001-CA-115, 2003-Ohio-204 -- Misdemeanant was sentenced to five months in jail and one year of probation. Since no portion of the jail time was suspended, the court was without authority to order probation.

State ex rel. Mayer v. Henson, 97 Ohio St. 3d 276, 2002-Ohio-6323 -- In 2001 a Common Pleas Court judge put on a nunc pro tunc entry altering the sentence he imposed in 1983 to net the defendant the amount of time he intended be served instead of the actual time to be served at the discretion of the Adult Parole Authority. Prosecutor's complaint in mandamus and prohibition was dismissed by the court of appeals. Supreme Court reverses, strongly indicating that the judge did not have jurisdiction to alter his prior order.

State v. Adkins, Greene App. No. 2002 CA 113, 2003-Ohio-1571 -- Apprendi v. New Jersey, (1000), 530 U.S. 466, does not require a jury finding on the existence of a fact permitting a sentence longer than the statutory minimum or at the statutory maximum.

Beatty v. Alston (1975), 43 Ohio St. 2d 126 -- The single assignment system imposed by Criminal Rule 25 requires sentencing be handled by the trial judge. When a defendant misses sentencing and sentence is passed when the order-in and new charges are dealt with in arraignment court, original judge may hold sentence for naught and impose greater sentence.

State v. Pecina (1992), 76 Ohio App. 3d 775 -- Defendant must enter objection to being sentenced in front of different judge.

State v. Green (1997), 122 Ohio App. 3d 566, 571 -- Though the judge who presided at trial should pass sentence, if he retires his successor may properly do so.

State v. Scalf (1998), 126 Ohio App. 3d 614 -- A court may not impose a more severe sentence to punish the defendant for exercising his right to have a trial, nor may it create the appearance of doing so. Also see Cincinnati v. Clardy (1978), 57 Ohio App. 2d 153, 158; United States v. Derrick (6th Cir. 1975), 519 F. 2d 1; Baker v. United States (5th Cir. 1969); United States v. Marzette (8th Cir. 1973), 485 U.S. 207; State v. O'Dell (1989), 45 Ohio St. 3d 140, 147 and paragraph two of the syllabus; State v. Ramey (November 23, 1979), Franklin Co. App. No. 79AP-96, unreported (1979 Opinions 3514, 3517-3522).

Columbus v. Jones (1987), 39 Ohio App. 3d 87, 90 -- It is an abuse of discretion for a court to imposed a more severe sentence because it believes the jury mistakenly found the defendant not guilty of an additional charge.

State v. Patterson (1996), 110 Ohio App. 3d 264, 271 -- "(A) trial court abuses its discretion in sentencing a defendant, even when the sentence is within the statutory guidelines, if the trial court has considered evidence concerning the acquitted charge." Defendant had been acquitted of the murder of one victim, but convicted of attempted murder of another. Also see State v. Wells (1999), 133 Ohio App. 3d 392.

State v. Warren (1998), 125 Ohio App. 3d 298 -- Reversal where the judge's comments made it clear he resented the defendant had exercised his right to trial and that he disagreed with the jury's verdict. Also see State v. Marut (1990), 70 Ohio App. 3d 3.

State v. O'Dell (1989), 45 Ohio St. 3d 140 -- Paragraph two of the syllabus: "When a sentencing judge is the same judge who presided over the defendant's trial, the fact that the defendant knowingly gave false testimony while under oath is a factor that may be considered along with other pertinent factors when imposing sentence." Tacitly overrules State v. Jeffers (1978), 57 Ohio App. 2d 107. Also see United States v. Grayson (1978), 438 U.S. 51; State v. Stewart (1980), 70 Ohio App. 2d 147; State v. Fincher (1991), 76 Ohio App. 3d 721.

State v. Darmour (1987), 38 Ohio App. 3d 160 -- Headnote: "When a trial court forewarns a defendant that it will not consider itself bound by any sentencing agreement and defendant fails to change his plea, the court does not abuse its discretion when it imposes a sentence greater than that forming the inducement for the defendant to plead guilty."

State v. Bell (1990), 70 Ohio App. 3d 765 -- Court may not set forth in a judgment entry a sentence different from that pronounced in open court. Nor may the court increase a sentence once the defendant has served part of that sentence. Also see Columbus v. Rowland (1981), 2 Ohio App. 3d 144; State v. Walton (1990), 66 Ohio App. 3d 243 (defendant must be present for resentencing).

State v. Phelps (1991), 75 Ohio App. 3d 573 -- A criminal accused may not be tried or sentenced if he is incompetent. Where the defendant was found guilty of arson, but became incompetent before sentence was passed, and remained so for three and a half years, the court was required to dismiss the indictment and refer the cause to the probate court.

Brookpark v. Necak (1986), 30 Ohio App. 3d 118 -- Courts lack inherent authority to reconsider their lawful sentences once the defendant has served part of the sentence. (But may have statutory authority to do so.)

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Objectives; Assessing the offender and the gravity of the offense

State v. Massien, 125 Ohio St. 3d 204, 2010-Ohio-1864 – Nurse stole drugs from hospital where she was employed, and was granted intervention in lieu of conviction. Syllabus: “(1) A person holding a ‘position of trust.’ for the purpose of R.C. 2929.13(B)(1)(d) is not limited solely to public officials and public servants. (2) A private individual holds ‘a position of trust’ within the meaning of R.C. 2929.13(B)(1)(d) if he or she occupies a special relationship of trust and confidence equivalent to a fiduciary relationship. (3) A nurse, by virtue of his or her employment in a hospital, does not occupy a fiduciary relationship with his or her employer. (4) A nurse who steals drugs from his or her employer-hospital does not hold a ‘position of trust’ within the meaning or R.C. 2929.13(B)(1)(d) and is not categorically ineligible for intervention in lieu of conviction.”

State v. Hall, 179 Ohio App. 3d 727, 2008-Ohio-6228 – Defendant got 19 years, his brother 10, for their participation in the same robbery. The judge faulted the defendant for not agreeing to testify against his brother. Since the defendant‘s case was pending at the time his brother entered a plea, the defendant was punished for the exercise of his Fifth Amendment rights. Reversed. (Sentence on remand was 20 years!)

State v. Parker, 193 Ohio App. 3d 506, 2011-Ohio-1418 – 36-year old teacher went to a motel twice with a sixteen year old student. Sex acts were consensual and the victim proclaimed her intent to wait for the defendant to complete his prison term so they could be together. Prosecutor asked for a long sentence to forestall this happening. Judge gave the defendant fifteen years. This sentence was not contrary to law, but it was an abuse of discretion. It also reflected improper application of the sentencing package doctrine

State v. Kerns, 161 Ohio App. 3d 76, 2005-Ohio-2578 -- While courts do not have to provide findings with regard to the seriousness and recidivism factors set forth in R.C. 2929.12, or address those factors individually, the record must provide some inference that those factors were considered.

State v. Moore (2000), 140 Ohio App. 3d 278 -- In imposing consecutive sentences and the maximum sentence for a first timer, court improperly gave as a reason inducement for the prosecutor not to retry counts on which the jury did not reach a verdict. Affirmed since other findings were supported by the record. See dissent.

State v. Roberson (2001), 141 Ohio App. 3d 626, 632-633 -- Merely having an accomplice is not sufficient for a R.C. 2929.12(B)(7) finding of organized criminal activity.

State v. Dute, Hamilton App. No. C-020709, 2003-Ohio-2774, ¶ 36-38 -- Defendant sold porno tapes involving herself and others over the Internet. For purposes of sentencing the court improperly found this to be organized criminal activity based on the number or participants.

State v. Roth (1999), 133 Ohio App. 3d 576, 584 -- A defendant's position as parent to the victim does not bring her within the R.C. 2929.12(B)(3)-(5) seriousness factors relating to profession, occupation, reputation, office or position.

State v. Boland, 147 Ohio App. 3d 151, 2002-Ohio-1163 -- Violation of a position of trust as a sentencing aggravator applies to private as well as public individuals, though it should not be applied so expansively as to override the overall objectives of sentencing. Reversed anyway as consecutive sentences appear excessive and were not supported by findings. Also see State v. Marcum, Columbiana App. No. 02 CO 72, 2003-Ohio-6391.

State v. McLemore (2000), 136 Ohio App. 3d 550 -- The recidivism likely factor concerning drug or alcohol abuse encompasses finding both a pattern of abuse related to the offense and the offender refusing to acknowledge that pattern or refusing to accept treatment.

State v. McAdams, 162 Ohio App. 3d 318, 2005-Ohio-3895 -- As to R.C. 2929.12(D)(4), there are two aspects indicating a greater likelihood of recidivism: (1) a pattern of abuse related to the offense, and (2) that pattern of abuse is unacknowledged or untreated at the time of sentencing. OMVI defendant's statement he had merely looked into treatment did not weigh in his favor. Moreover, the trial court was in a better position to determine whether he had shown genuine remorse. Also see State v. McLemore (2000), 136 Ohio App. 3d 550.

State v. Murray, 149 Ohio App. 3d 248, 2002-Ohio-3537 -- Coal and speedboat tycoon convicted of criminal non-support of his daughter by a topless cocktail waitress. Evidence supported conviction - he could have at least paid something, despite his business setbacks. Eleven-month sentence affirmed as well.

State v. Nasrallah (2000), 139 Ohio App. 3d 722, 727-728 -- (1) Greater than minimum sentence for first offender near the center of an international credit card fraud syndicate was not arbitrary, unconscionable or unreasonable (2)"Inconclusive" polygraph results as to some questions warranted court's refusal to enforce plea agreement of minimum sentence in return for cooperation in investigation. (3) $5,100,000 fine related to entire racketeering enterprise, as opposed to Ohio portion of activity, was permissible.

State v. Strohm, Crawford App. No. 3-02-39 et. seq., 2003-Ohio-1202 -- Drawing upon the felony sentencing statutes, maximum and consecutive sentences should be reserved for the worst cases and only when necessary to adequately punish the offender and protect the public. Fine in addition to maximum consecutive sentences was improper where it was not specifically adapted to deterrence of the offense or correction of the offender and there was no inquiry into the defendant's ability to pay. Also see State v. Goodell, Lucas App. No. L-02-1133, 2003-Ohio-6374.

State v. Mateo, 150 Ohio App. 3d 489, 2002-Ohio-6852 -- A sentencing court is required to find imprisonment is consistent with the purposes of felony sentencing under R.C. 2929.11, and must weigh the seriousness and recidivism factors set forth in R.C. 2929.12. These do not permit imposing a prison sentence merely because the defendant is an illegal alien subject to immediate deportation.

Cleveland Bar Association v. Cleary 93 Ohio St. 3d 191, 2001-Ohio-1326 -- Former judge's offer of an improper sentencing quid pro quo based on her moral opposition to abortion leads to six month suspension. Choice was prison or community control if defendant would agree to have the child she was carrying.

State v. Agner, Logan App. No. 8-02-28, 2003-Ohio-5458, ¶12-13 -- "Each sentence should be the result of a sentencing inquiry which applies and evaluates the applicable portions of Revised Code sections 2929.11 through 2929.18 so that outcomes are rational and predictable. The party claiming that a sentence is inconsistent with sentences given in other cases bears the burden of providing the court with sentences imposed for similar crimes by similar offenders which validate the claim of inconsistency." See concurring opinion for discussion of degree of detail needed with regard to cases submitted for comparison. Also see State v. DeMastry, 155 Ohio App. 3d 110, 2003-Ohio-5588, ¶39-42.

State v. Maudlin, Hamilton App. No. C-030158, 2003-Ohio-6505 -- It was an abuse of discretion to deny continuance of sentencing where defense counsel informed the court he was too ill to participate.

State v. Arnett (2000), 88 Ohio St. 3d 208 -- Syllabus: "When a sentencing judge acknowledges that he or she has consulted a religious text during his or her deliberations and quotes a portion of that text on the record in the sentencing proceeding, such conduct is not per se impermissible and does not violate the offender's right to due process, when the judge adheres to the sentencing procedures outlined in the Revised Code and when the judge's religious references do not impair the fundamental fairness of the sentencing proceedings." Compare United States v. Bakker (4th Cir. 1991), 925 F. 2d 728.

State v. Longo (1982), 4 Ohio App. 3d 136 -- "Extramural" investigation by judge before passing sentence leading to harsher than expected sentence based on belief defendant was involved in other criminal activity was an abuse of discretion.

Columbus v. Bee (1979), 67 Ohio App. 2d 65 -- Trial court abused its discretion by imposing the maximum jail sentence after trial, though during discussion of entering a no contest plea it had been indicated that no jail time would be imposed.

State v. Nero (1998), 125 Ohio App. 3d 529 -- At the sentencing hearing the judge said the sentence would be five years, but during the codefendant's sentencing hearing called defendant back to the courtroom without counsel, questioned him about the burglary, then said "if I find out you lied to me, your sentence is going to be increased to the maximum." Changing the sentence in the entry denied appellant his right to be present and his right to counsel. Remedy is reinstatement of the original sentence.

State v. Butler (1974), 44 Ohio App. 2d 177 -- Defendant, unhappy with his sentence, called the judge a "fag bastard," among other things, and had his prison sentence increased. Reversed on convoluted technical grounds, but point is that the Court of Appeals would not condone the judge's response in kind to the defendant's anger. Also see State v. Boyd (1972), 30 Ohio St. 2d 64, 65. But see State v. Harris (1981), 2 Ohio App. 3d 48; Columbus v. Messer (1982), 7 Ohio App. 3d 266.

State v. Yontz (1986), 33 Ohio App. 3d 342 -- A judge's strong personal feelings about a particular type of offense does not permit him to disregard the mitigating factors listed in R.C. 2929.12.

State v. Dubose (1997), 117 Ohio App. 3d 219 -- Judge telling defendant that appearance without counsel amounted to waiver did not constitute a valid waiver. Without proper waiver, court erred in imposing jail time as part of the sentence.

State v. Hill (1994), 70 Ohio St. 3d 25, 29 -- Though not reversing on this basis, Supreme Court suggests that while the case is on remand on another issue the trial court consider how it looks for the principal to have been given probation after pleading guilty and the complicitor sentenced to prison after insisting on a trial.

State v. Evans (1994), 93 Ohio App. 3d 121 -- To preserve the issue whether the court improperly reviewed a codefendant's confession before sentence was passed, counsel was required to proffer the document or otherwise protect the record.

State ex rel. Beacon Journal Publishing Co. v. Whitmore (1998), 83 Ohio St. 3d 61 -- Unsolicited letters received by a judge with respect to sentencing, but not "utilized," held not to be public records with three justices dissenting. Majority notes many judges discard such letters as improper ex parte communication.

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Proportionality

State v. Hairston, 118 Ohio St. 3d 289, 2008-Ohio-2338 – Syllabus: "Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment." Defendant got 134 years on guilty pleas. Victims were not seriously harmed. Court sees proportionality as a matter to be addressed with respect to individual charges. See concurring opinion.

State v. Warren, 118 Ohio St. 3d 200, 2008-Ohio-2011 – Rapes were committed when the defendant was fifteen. Seventeen years later he was convicted and received life sentences. Statutes that went into effect after the crimes were committed mandated he be prosecuted as an adult after reaching age 21. No due process violation found.

State v. Watkins, 186 Ohio App. 3d 619, 2010-Ohio-740 – When Watkins went to the county fair with friends he learned one of the girls had been given $5,000 to buy a car as a graduation present. Allegedly he texted associates to engineer a kidnapping and robbery. Convicted at trial Watkins received maximum consecutive sentences. One codefendant was a juvenile. The adults pled and received six and thirteen years. Watkins’s 18 year sentence was not contrary to law because it was within statutory limits and the court recited that there had been reference to R.C. 2929.11 and 2929.12 sentencing factors in he judgment entry. But it was an abuse of discretion. Post-Foster there remains a policy favoring minimum sentences for first offenders. Looking at the relative culpability of the codefendant’s, and what was of record as to their priors, more than the minimum may have been warranted, but not maximum consecutive sentences.

State v. Franklin, 182 Ohio App. 3d 410, 2009-Ohio-2664 – Same judge gave defendant eight years after codefendant was sentenced to three. Under the circumstances this was neither contrary to law nor an abuse of discretion.

State v. Wiley, 180 Ohio App. 3d 475, 2009-Ohio-109 – Defendant attacked a blanket policy of imposing prison terms for all persons convicted of conveying drugs onto the grounds of a detention facility. Court finds the sentence was contrary to law because it was unclear whether the court considered 2929.11 and 2929.12 factors.

State v. Rigsbee, 174 Ohio App. 3d 12, 2007-Ohio-6267, ¶15-26 – Defendant is unsuccessful in a proportionality challenge to fifteen year sentence for stealing almost $2,000,000. Court would prefer comparison being to other sentences imposed within an appellate district, not limited to those cases that were appealed. Looking to the two cases that were cited in the trial court, opinion notes $2,000,000 is a lot more than $1,000,000 and the impact on the company that was embezzled.

Kimbrough v. United States (2007), 128 S.Ct. 558 – In a federal sentencing guidelines case, the Court addresses the 100-1 quantity distinction for crack and powder cocaine, concluding that since the guidelines are now only advisory, a downward departure in a crack sentence was not an abuse of discretion. Also see Spears v. United States (2009), 129 S.Ct. 840.

State v. Agner, Logan App. No. 8-02-28, 2003-Ohio-5458, ¶12-13 -- "Each sentence should be the result of a sentencing inquiry which applies and evaluates the applicable portions of Revised Code sections 2929.11 through 2929.18 so that outcomes are rational and predictable. The party claiming that a sentence is inconsistent with sentences given in other cases bears the burden of providing the court with sentences imposed for similar crimes by similar offenders which validate the claim of inconsistency." See concurring opinion for discussion of degree of detail needed with regard to cases submitted for comparison. Also see State v. DeMastry, 155 Ohio App. 3d 110, 2003-Ohio-5588, ¶39-42; State v. Spellman, 160 Ohio App. 3d 718, 2005-Ohio-2065.

State v. Kingry, Delaware App. No. 04-CAA-04029 -- Consistency is tied to weighing the same factors with respect to each defendant. It does not mean uniformity as might be achieved through use of a sentencing grid. Codefendants do not have to receive equal sentences. Defendant's failure to provide transcripts and other documentation is fatal to claim his sentence was inconsistent with lesser sentences given codefendants he claims were more culpable.

State v. Wilson, Washington App. No. 04CA18, 2005-Ohio-830, ¶39-44 -- Failure to argue in the trial court that a sentence is not consistent with others for similar conduct forces plain error review. At least some evidence must be presented to the trial court. Also see State v. Armstrong, Cuyahoga App. No. 81928, 2003-Ohio-5932, ¶29; State v. Lathan, Lucas App. No. L-03-1188, 2004-Ohio-7074, ¶27.

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Judicial Conduct

State v. Chapman, 190 Ohio App. 3d 528, 2010-Ohio-5924, ¶28-32 – Judge’s comments suggested an increased sentence was imposed because the defendant exercised his right to a jury trial. Before trial the judge said that if there was a trial the sentence would not be close to the 21-life sentence on the table. At sentencing he criticized the defendant for not having accepted prior plea offers.

State v. Wile, 175 Ohio App. 3d 184, 2008-Ohio-608 – When the defendant contends there is a factual inaccuracy in a presentence investigation, the judge is not required to undertake a fact-finding procedure as required under the Federal Rules of Criminal Procedure. Instead, the standard for review is whether the trial court abused its discretion in passing sentence.

State v. Fritz, 178 Ohio App. 3d 65, 2008-Ohio-4389 – The judge’s remarks at sentencing faulted the defendant for exercising his right to jury trial in what the judge viewed as a case of low merit. Reversed. Looking at the judge’s remarks in their entirety, it appears that the defendant’s exercise of his right to trial was a factor in the sentencing decision.

Cleveland Bar Association v. Cleary, 93 Ohio St. 3d 191, 2001-Ohio-1326 -- Former judge's offer of an improper sentencing quid pro quo based on her moral opposition to abortion leads to six month suspension. Choice was prison or community control if defendant would agree to have the child she was carrying.

State v. Stafford, 158 Ohio App. 3d 509, 2004-Ohio-3893 -- After opening statements the judge pressed the defendant to plead guilty, saying even though the facts merited more time, he would probably be given an eleven-year sentence. If convicted he would probably get twenty-three years. Upon conviction, the sentence was twenty years. Reversed. It was a denial of due process to punish the defendant for asserting his right to jury trial. The record demonstrates actual vindictiveness, or at least the state has failed to overcome the presumption of vindictiveness.

State v. Ambriez, Lucas App. No. L-03-1051, 2004-Ohio-5230 -- While entering a plea may warrant a reduced sentence, exercising the right to trial may not properly be treated as a lack of genuine remorse.

State v. Taogaga, Cuyahoga App. No. 83505, 2004-Ohio-5594. ¶18 -- "Even the appearance that a defendant is being punished for going to trial creates a chilling effect and a record that allows an inference requires remand for resentencing" Principle actors pled guilty and testified against an accomplice who received a greater sentence. Also see State v. Taogaga, 165 Ohio App. 3d 775, 2006-Ohio-692.

State v. Morris, 030402, 2004-Ohio-2870 -- Judge ordered courtroom cleared following an outburst during a sentencing hearing. Reversed for failure to make a record supporting the necessity of doing so, in view of the defendant's right to a public trial.

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Scheduling; continuances

State v. Owens, 181 Ohio App. 3d 725, 2009-Ohio-1508 – Defendant was jailed in Pennsylvania when sentencing date came up in Ohio. He waived extradition, but the Pennsylvania authorities refused to release him. During the following thirteen months the state failed to initiate formal extradition proceedings or pursue alternatives such as a video conference or obtain an agreement to be sentenced in absentia. Trial court lost the authority to impose a sentence, though the convictions stand. IAD doesn‘t require dismissal charges when conviction has been entered and the defendant is merely awaiting sentencing. In State v. Owens, 123 Ohio State 3d 1204, 2009-Ohio-4086, on the motion of the Ohio Public Defender, the state‘s notice of appeal is stricken for failure to serve a copy of the notice of appeal on the Ohio Public Defender as required by Supreme Court Practice Rule XIV(2)(A)(3).

State v. Maudlin, Hamilton App. No. C-030158, 2003-Ohio-6505 -- It was an abuse of discretion to deny continuance of sentencing where defense counsel informed the court he was too ill to participate.

State v. George, Hamilton App. No. 030216, 2004-Ohio-2868 -- Tip tickets ostensibly sold to benefit a charity were the basis for convictions for gambling, operating a gambling house, money laundering, conspiracy and racketeering. At sentencing the prosecutor claimed some of the proceeds ultimately went to HAMAS. Failure to permit continuance to rebut HAMAS claim was reversible error.

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Presentence investigation

State v. Sims, 184 Ohio App. 3d 741, 2009-Ohio-5751 – Defendant was sentenced to eight years on racketeering and related forgery counts. PSI mentioned similar activity elsewhere had netted a large amount of money. Majority applies an abuse of discretion standard and affirms. Dissent would hold the trial court more closely to the statutory factors guiding felony sentencing.

State v. Preston, 155 Ohio App. 3d 367, 2003-Ohio-6187 -- A felon may not be placed on community control without the completion of a presentence investigation, even when community control is jointly recommended.

State v. Roberson (2001), 141 Ohio App. 3d 626 -- Statute limiting the defendant's access to portions of the presentence investigation survives constitutional challenge. Gardner v. Florida (1977), 430 U.S. 349, 358 deemed limited to death penalty cases.

State ex rel. Sharpless v. Gerke (2000), 137 Ohio App. 3d 821, 825 -- "...(W)e hold that a criminal defendant has no legal right to obtain and review a copy of his presentence investigation report after he has been sentenced in a criminal action." Petition seeking a writ of mandamus dismissed. State v. Dietz (1993), 89 Ohio App. 3d 69 remains authoritative notwithstanding amendment of R.C. 2947.03.

State v. Othman, 149 Ohio App. 3d 82, 2002-Ohio-4029, ¶24-35 -- Concurring judge believes that the Court of Appeals erroneously overruled the defendant's motion to supplement the record with the victim's medical records, which contradicted the trial judge's findings as to the nature and extent of her injuries.

State v. Cyrus (1992), 63 Ohio St. 3d 164 -- In a felony case, a presentence investigation is not required only when the court does not intend to grant probation. Also see State v. Henry (1987), 37 Ohio App. 3d 3.

State v. Adams (1988), 37 Ohio St. 3d 295 -- Paragraph four of the syllabus: "The decision to order a presentence report lies within the sound discretion of the trial court. Absent a request for a presentence report in accordance with Crim. R. 32.2, no grounds for appeal will lie based on a failure to order the report, except under the most exigent of circumstances."

State v. Hutton (1990), 53 Ohio St. 3d 36 -- Paragraph one of the syllabus: "A presentence investigation report in a capital case may include the defendant's arrest record."

State v. Hutton (1990), 53 Ohio St. 3d 26, 42-44 -- Though request for PSI in a death penalty case may have been ill-advised, since the defendant's prior record was disclosed, since it is permitted by statute, doing so does not amount to ineffective assistance of counsel. (Court of Appeals had held otherwise.)

State v. Huertas (1990), 51 Ohio St. 3d 22 -- Syllabus: "Expressions of opinion by a witness (included in PSI) as to the appropriateness of a particular sentence in a capital case violate the defendant's constitutional right to have the sentencing decision made by the jury and judge."

State v. Tutt (1988), 44 Ohio App. 2d 138 -- Court did not abuse its discretion in denying probation when presentence investigation mentioned other uncharged criminal activity. Also see Maple Heights v. Dickard (1986), 31 Ohio App. 2d 68 (arrests and charges which did not result in conviction).

State v. Turner (1987), 37 Ohio App. 3d 38 -- Consideration of presentence investigation gives rise to inference that statutory sentencing factors were properly considered. [May not apply to post 1996 felony cases.] Also see State v. Koons (1984), 14 Ohio App. 3d 289.

State v. Cassidy (1984), 21 Ohio App. 3d 100 -- Though a case is disposed of by plea bargain, the court may consider information in a PSI relating to facts and circumstances of the matter not revealed in open court.

State v. Dietz (1993), 89 Ohio App. 3d 69 -- Though a defendant is entitled to see a PSI report before sentencing, he is not entitled to a copy of the report through a post-sentence motion, or through a request under the Public Records Law.

State v. Stern (1984), 20 Ohio App. 3d 65 -- A presentence report is confidential. Whether it or a victim impact statement is to be made available to the defendant lies within the discretion of the trial judge. Also see State v. Bayless (1982), 4 Ohio App. 3d 301; State v. Gotsis (1984), 13 Ohio App. 3d 282.

In re Special Grand Jury Investigation Concerning Organic Technologies (1995), 74 Ohio St. 3d 30 -- A presentence investigation is not a public record subject to disclosure pursuant to R.C. 149.43. Therefore, grand jury information filed with a presentence investigation is not subject to disclosure.

State v. Watkins (1994), 96 Ohio App. 3d 195 -- The defendant may not be ordered to pay the costs of preparing a presentence investigation pursuant to R.C. 2947.23 as a cost of prosecution.

Clark v. Eskridge (1991), 77 Ohio App. 3d 524 -- A probation officer who prepares a presentence report is protected by absolute judicial immunity.

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Effect of prior record

Apprendi v. New Jersey (2000), 530 U.S. 466 -- Except for prior convictions, any fact which increases the penalty for a crime beyond the statutory maximum must be charged and proved beyond a reasonable doubt at trial.

State v. Adams (1988), 37 Ohio St. 3d 295 -- Syllabus: "1. A stipulation to the fact of a prior conviction constitutes a stipulation as to the conviction's constitutionality, unless the defendant raises the constitutionality challenge at the trial where the conviction is used to enhance a penalty. 2. When a defendant raises a constitutional question concerning a prior conviction, he must lodge an objection to the use of this conviction and he must present sufficient evidence to establish a prima facie showing of a constitutional infirmity." Also see State v. Maynard (1987), 38 Ohio App. 3d 50.

State v. Brandon (1989), 45 Ohio St. 3d 85 -- Syllabus: "Where questions arise concerning a prior conviction, a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law and a defendant must introduce evidence to the contrary in order to establish a prima-facie showing of constitutional infirmity." Also see State v. Hairston (1985), 27 Ohio App. 3d 125 (though record is silent, presume nature of offense was explained to the accused); Henderson v. Morgan (1976), 426 U.S. 637, 647; Marshall v. Lonberger (1983), 459 U.S. 422.

State v. Allen (1987), 29 Ohio St. 3d 53 -- Syllabus: "Where the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of facts." Also see McMillan v. Pennsylvania (1986), 477 U.S. 67.

Parke v. Raley (1992), 506 U.S. 20 -- In the context of providing increased sentences for recidivists, it is not a violation of due process to place the burden on the defendant of showing a prior conviction was constitutionally invalid.

State v. Morgan (1994), 71 Ohio St. 3d 178 -- In RICO prosecutions, whether or not a predicate act is a felony depends on analysis of the conduct in question under Ohio law and not the law of another jurisdiction. May also be applicable in the analysis of prior convictions in other jurisdictions when they are alleged as the basis for an increased penalty.

State v. Dotson (February 28, 1995), Franklin Co. App. No. 94APA05-657, unreported (1995 Opinions 712) -- With respect to the offense of corrupting another with drugs, a prior drug offense conviction which increases the penalty but does not elevate the degree of the offense is a matter for the court to consider in passing sentence, but is not an element.

State v. Gibson (1986), 34 Ohio App. 3d 146, 148 -- If the court allows withdrawal of a guilty plea, and that conviction was subsequently used to enhance the penalty for another offense, relief must be granted as to the later case as well.

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Failure to provide counsel or obtain waiver; Use of uncounselled prior convictions to enhance penalty

State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533 -- Syllabus: "(1) For purposes of penalty enhancement in later convictions under R.C. 4511.19, when the defendant presents a prima facie showing that prior convictions were unconstitutional because they were uncounselled and resulted in confinement, the burden shifts to the state to prove that the right to counsel was properly waived. (2) Waiver of counsel must be made on the record in open court, and in cases involving serious offenses where the penalty includes confinement for more than six months, the waiver must also be in writing and filed with the court. (Crim. R. 44(C), applied.)" Case below: State v. Brooke, 165 Ohio App. 3d 409, 2005-Ohio-6161.

Alabama v. Shelton (2002), 122 S.Ct. 1764 -- A suspended sentence that may result in imprisonment upon revocation of probation may not be imposed unless the defendant was afforded representation by counsel. Defendant was warned of the dangers of self-representation but never waived his right to counsel.

State v. Lanton, Greene App. No. 02CA124, 2003-Ohio-4715 -- Court advised those present for arraignment to hire an attorney or see the public defender. Defendant did not waive counsel when he subsequently entered a no contest plea. Court of appeal vacates jail time imposed, though otherwise lets the conviction stand.

State v. Rice, Stark App. No. 2004CA00090, 2004-Ohio-5690 -- Defendant failed to report to begin serving a jail sentence. When he was arrested and brought before the court a year later for resentencing, the court did not obtain a waiver of his right to counsel. Reversed.

Scott v. Illinois (1979), 440 U.S. 367 -- An indigent defendant may not be sentenced to a period of incarceration unless he is either represented by counsel or waives his right to counsel. Also see: Argersinger v. Hamlin (1972), 407 U.S. 25; Gideon v. Wainwright (1963), 372 U.S. 335.

State v. Haag (1976), 49 Ohio App. 3d 268 -- Applying Crim. R. 22, if the defendant was not represented by counsel, and the record fails to affirmatively demonstrate that he had the opportunity to obtain counsel or waived his right to counsel, any resulting sentence of incarceration must be vacated.

Nichols v. United States (1994), 511 U.S. 738 -- A prior uncounselled misdemeanor conviction, constitutional under Scott v. Illinois (1979), 440 U.S. 367 because no sentence of imprisonment was imposed, may be used to enhance the sentence for a later offense, even though that sentence entails imprisonment. Baldasar v. Illinois (1980), 446 U.S. 222, overruled. Opinion leaves standing the rule that an uncounselled prior conviction may not be used to increase the degree of an offense, where proof of the conviction is an element of the crime rather than a sentencing consideration. See Burgett v. Texas (1967), 389 U.S. 109.

State v. Gerwin (1982), 69 Ohio St. 2d 488 -- Syllabus: "An uncounselled misdemeanor conviction for theft may be used under the enhancement provision of R.C. 2913.01(B) to convert the subsequent misdemeanor into a felony when no actual imprisonment results."

State v. Schupp (1999), 100 Ohio Misc. 2d 13 -- Prior uncounseled OMVI conviction could not be used to enhance penalty for subsequent offense. Defendant claimed to have been unrepresented, and the record from the Franklin County Municipal Court was insufficient to establish either waiver or representation by a public defender as indicated in the court file.

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State v. Carr, 167 Ohio App. 3d 223, 2006-Ohio-3073 -- Defendant was sentenced on two counts of child enticement and one count of obstruction. Nothing was said in court or in the entries as to whether the enticement sentences were to be served concurrently or consecutively. Sixteen days after the defendant entered the jail the court amended the entries to state they were to be consecutive. Reversed. R.C. 2929.41(B) allows consecutive misdemeanor sentences is ordered by the court. Failure to specify whether they are concurrent or consecutive creates an ambiguity that must be resolved in favor of the defendant. Modification is not permitted once the sentences have been executed.

State v. Baker, 152 Ohio App. 3d 138, 2002-Ohio-7295 -- Though "suspending" a sentence and imposing community control is a dubious practice under the current sentencing statutes, that issue had to be raised following imposition of the original sentence, and is waived by the time of an appeal from revocation proceedings. Addressing a variance between the 18-month "suspended" term announced in court and the 12-month term in the judgement entry, the latter is controlling. Also see State v. Vlad, 153 Ohio App. 3d 74, 2003-Ohio-2930 (including dissenting opinion); State v. Trussel, 153 Ohio App. 3d 83, 2003-Ohio-2933.

State v. Paxton (2000), 139 Ohio App. 3d 48 -- Defendant was sentenced to community control including orders to serve sixty days in jail and up to sixty additional days at the discretion of the probation officer in the event of minor infractions. Delegation to the probation officer in this manner is a denial of due process. Court sidesteps determining whether it also violates separation of powers.

State v. Mitchell (2001), 141 Ohio App. 3d 770 -- Defendant pleaded guilty to attempted escape, a fourth degree felony, and was sentenced to "time served." Reversed. Only options available to the court were community control, which would require a presentence investigation, or a mandatory term of imprisonment.

State v. Fodal, Second Dist. App. No. 2001-CA-115, 2003-Ohio-204 -- Misdemeanant was sentenced to five months in jail and one year of probation. Since no portion of the jail time was suspended, the court was without authority to order probation.

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Fines, generally

State v. Johnson, 164 Ohio App. 3d 792, 2005-Ohio-6826 -- It was an abuse of discretion to base a $1,000 fine on the costs of the Highway Patrol in investigating a fatal accident.

State v. Crenshaw (2001), 145 Ohio App. 3d 86 -- Judge angry at the outcome of a trial ordered misdemeanant to pay $1000 as a fine covering the cost of appointed counsel. (1) R.C. 2941.51 does not authorize assessment of attorney fees as a part of sentence. (2) Fine in addition to jail time is not specifically adapted to deterrence of the offense or correction of an indigent offender. (3) Fines go into the county treasury. There is no means for reimbursing the state Public Defender as there is with civil recoupment of fees under R.C. 2941.51(D).

State v. Kelly (2001), 145 Ohio App. 3d 277 -- Stiff fines affirmed because record did not include the PSI or other information supporting claim of indigency. Court applies the presumption of regularity in trial court proceedings absent a record to the contrary.

State v. Strohm, 153 Ohio App. 3d 1, 2003-Ohio-1202 -- Defendant received fines and consecutive sentences out of a one-car accident. Imposition of fines in addition to time was not in compliance with requirement they be related to deterrence or correction. Drawing analogy to the felony sentencing statutes, consecutive sentences were improper. Defendant may have had a history of substance abuse, but there was no indication that was a factor in the accident.

State v. Keylor, Monroe App. No. 02 MO 12, 2003-Ohio-3491 -- Judgment entry pertaining to county court clerk who embezzled $105,000 stated judicial release would not be considered until monetary sanctions were paid. These included $19,000 in fines. Statement was gratuitous but did not arise to error. Determination of ability to pay sanctions would have been premature. Failure to object to the amount of the fine at the sentencing hearing said to waive cruel and unusual punishment claim.

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Mandatory fines

State v. Fields, 183 Ohio App. 3d 647, 2009-Ohio-4187 – Failure to impose a mandatory fine renders judgment void. Defendant had not filed an affidavit of indigency before sentencing, thus fine had to be levied. Defendant had already been through an appeal and a timely postconviction, and was here pursuing a second postconviction action pro se.

State v. Ward, 187 Ohio App. 3d 384, 2010-Ohio-1794 – Defendant sentenced to prison for trafficking in heroin indicated she was unemployed, provided sole support for two children, had a slipped disk, and in the future would be unable to work through a temp agency because of the felony conviction. Under these circumstances the court was obliged to conduct a hearing on her ability to pay a mandatory fine. Furthermore, counsel was ineffective for failing to file the affidavit of indigency she had filed out. Original judgment entry set forth a one year mandatory term of imprisonment. Once the case was on appeal that court lost jurisdiction to remedy that mistake through a nunc pro tunc entry.

Cleveland v. King, 153 Ohio App. 3d 326, 2003-Ohio-3807 -- "Shall be fined not less than" means a mandatory minimum fine in that amount. This may not be waived, though the court may permit community service in lieu of payment. Costs may be waived.

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Fines - ability to pay

State v. Collier, 184 Ohio App. 3d 247, 2009-Ohio-4652 – Court imposed a fifteen year term and a $20,000 fine. Defendant assigned as error the fine was excessive, thus a violation of due process, and the record did not support the conclusion he had the present or future ability to pay. Fine was neither clearly and convincingly contrary to law nor an abuse of discretion. Court suggests there may be a remedy following release under R.C. 2929.18(G).

Cleveland v. Leneghan, 181 Ohio App. 3d 378, 2009-Ohio-1086 – A court does not lose the ability to collect a fine because of the passage of time. However, before jailing a defendant for non-payment, a court must conduct a hearing on the ability to pay.

State v. Loving, 180 Ohio App. 3d 424, 2009-Ohio-15 – Claim that the defendant would not be able to pay $22,500 in mandatory fines upon his release from prison deemed speculative and premature.

State v. Adkins (2001), 144 Ohio App. 3d 633, 647 -- Court erroneously failed to consider defendant's ability to pay before imposing a fine upon conviction of felony domestic violence.

State v. Perry, Stark App. No. 2004CA00066, 2005-Ohio-85 -- Court erroneously imposed a $15,000 fine absent any indication the defendant would be gainfully employed and able to pay in the near future.

State v. Slater, Scioto App. No. 01CA2806, 2002-Ohio-5343 -- A sentencing court is under a mandatory duty to consider the defendant's ability to pay a fine or the costs of confinement in a county operated facility. This does not always require a hearing. Since the duty is mandatory, the issue is not waived by the defendant's failure to object.

State v. Cooper (2001), 144 Ohio App. 3d 316 -- Defendant's failure to submit an affidavit of indigency waived right to have ability to pay fine considered by the trial court or error in this regard on appeal. Even though the defendant acquiesced, it was error to order fine paid to a private charity instead of into the county treasury.

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Court costs

State v. Joseph, 125 Ohio St. 3d 76, 2010-Ohio-954 – A court may not impose court costs in its judgment entry without so informing the defendant in open court. Doing so does not void the entire sentence. Costs are imposed based on the implied contract that parties to litigation become liable for the payment of court costs if taxed as a part of the court’s judgment. Costs in a criminal case are not a penalty. They are civil in nature, and may be collected only in the same manner as other civil judgments.

State v. Lunsford, 193 Ohio App. 3d 193, 2011-Ohio-964 – Defendant was hit with $228 in court costs following a hearing to add postrelease control to his sentence. Nothing was said about costs at the hearing. Res judicata bars trying to obtain a waiver of costs from the time of initial sentencing, but on remand he may seek waiver of additional costs.

State v. Moss, 186 Ohio App. 3d 787, 2010-Ohio-1135, ¶16-21 – Advice at the sentencing hearing that failure to pay costs may lead to serving community service is mandatory. Court departs from its prior review that the issue is not ripe for review until there has been a failure to pay and remands for resentencing. Compare State v. Barkley, 185 Ohio App. 3d 686, 2009-Ohio-5549, holding this need not be covered at the plea hearing.

State v. Clevenger, 114 Ohio App. 3d 258, 2007-Ohio-4006 -- Syllabus: "(1) A trial court may not suspend court costs previously imposed on a criminal defendant absent statutory authority. (2) A trial court may waive the payment of court costs previously imposed on a criminal defendant only upon statutory authority and only if the defendant moves for waiver of costs at the time of sentencing." R.C. 2929.022 permits courts to waive payment of costs if the defendant is indigent, but this must be done at the time of sentencing. Community service may provide a remedy.

State v. White, 103 Ohio St. 3d 580, 2004-Ohio-5989 -- Syllabus: "(1) A trial court may assess court costs against an indigent defendant convicted of a felony as a part of the sentence. (2) A clerk of courts may attempt the collection of court costs assessed against an indigent defendant." ¶8 While costs must be assessed against all convicted defendants, they may be waived. The clerk may attempt to collect costs from a prisoner's account, but there are other options, such as collection at a future date.

State v. Threatt, 108 Ohio St. 3d 277, 2006-Ohio-905 -- Syllabus: "(1) When collecting court costs from an indigent criminal defendant, the state may use any collection method that is available to collect a civil money judgment or may use R.C. 5120.133 to collect from a prisoner's account. (2) A motion by an indigent criminal defendant for waiver of payment of costs must be made at the time of sentencing. (3) A sentencing entry is a final appealable order. (4) A court's denial of an indigent criminal defendant's motion for waiver of payment of costs is reviewable under an abuse of discretion standard." The exact amount of costs need not be stated in the entry. The time to contest is not deferred until there has been an attempt to collect.

State v. Clark, Pickaway App. No. 02CA12, 2002-Ohio-6684, ¶21 -- "Costs should not be assessed against a defendant previously determined to be indigent unless the court determines that the defendant's financial status has changed." This was the conflict case in State v. White and may have limited viability. Also see State v. Schofield, Washington App. Nos. 01CA36 and 01CA13; State v. Durand, Pickaway App. No. 03CA15. Compare State v. Roux, 154 Ohio App. 3d 296, 2003-Ohio-4876; State v. Peacock, Lake App. No. 2002-L-115, 2003-Ohio-6772; State v. May, Ashtabula App. No. 2001-A-0037, 2003-Ohio-6979; and State v. Barlow, Montgomery App. No. 19628, 2003-Ohio-6530; State v. Harshman, 156 Ohio App. 3d 452, 2004-Ohio-1202, finding costs may be assessed, though indigency may prevent collection.

State v. Self, Montgomery App. No. 20423, 2005-Ohio-311 -- A court cannot incarcerate a person for nonpayment of court costs. See Strattman v. Studt (1969), 20 Ohio St. 2d 95, 103. Court improperly merged costs with the fine and gave days on the total. Days on the fine were improper absent a determination the defendant is able to pay but refuses. A judgment entry must list income, assets, debts, and address the ability to pay.

State v. Brown, 156 Ohio App. 3d 120, 2004-Ohio-558 -- Inmate challenged Department of Corrections withdrawing funds from his account to pay court costs by filing a motion to "quash, set aside or recall" the order costs be paid out of his prison account in the trial court. On appeal held that ODRC is not an administrative agency whose decisions are subject to judicial review by appeal pursuant to R.C. 119.12. ¶12: "To the extent that appellant is asserting that the warden at PCI is not properly following the procedure under Ohio Adm. Code 5120-5-03, the proper procedure would be for appellant to file a writ of mandamus to compel the warden to apply the statute and the Administrative Code properly."

State v. Galbreath (2000), 138 Ohio App. 3d 559 -- A defendant incurs no jury costs unless and until a jury has been sworn and begins to serve. It was improper to assess jury costs for a contingency trial date when the defendant failed to appear.

State ex rel. Carr v. Inderlied (2000), 137 Ohio App. 3d 50 -- Inmate sued the sentencing judge who imposed costs and the prison employee who made deduction from his account. Mandamus action dismissed. (1) As to the judge, the inmate had an adequate remedy at law in appeal from costs order. (2) As to the employee, remedy was an action pursuant to R.C. 2743.02(F) in the Court of Claims.

State ex rel. Pless v. McMonagle (2000), 139 Ohio App 3d 503 -- Trial judge revived a judgment for court costs, which then were collected from inmate's prison account. Prisoner's prohibition action was properly dismissed pursuant to Civ. R. 12(B)(6). The judge had authority to revive the dormant judgment. Opinion details authority for collection of funds from inmate's account.

State v. Pasqualone (2000), 140 Ohio App. 3d 650 -- Denial of a motion to vacate court costs on the basis of indigency is not a final appealable order. Even if it were, res judicata would ban consideration of any claim which could have been raised in an appeal from the initial judgment.

State v. Glosser, 157 Ohio St. 3d 588, 2004-Ohio-2966 -- The time to appeal the assessment of costs begins to run when there is an attempt to levy or garnish. Cases is remanded for determination of indigency. Court is of the view collection is possible only if the defendant is not indigent.

State v. Oglesby, Seneca App. No. 13-02-30, 2003-Ohio-867 -- Motorist fails on claim that court costs should have been reduced as one offense was dismissed and he was found not guilty of another. Since the complaint included all three charges, the motorist could be charged for only one case, regardless of the number of convictions.

State v. Payne, Summit App. No. 21178, 2003-Ohio-1140 -- Defendant claimed costs should be apportioned between the parties since he was acquitted on some counts. Assignment of error overruled because he failed to demonstrate which costs are divisible.

State v. Harshman, 156 Ohio App. 3d 452, 2004-Ohio-1202 -- Error to include jury fees in costs where the defendant pled guilty and a jury had not actually been sworn.

State v. Jones, Lucas App. No. L-01-1047, 2003-Ohio-1865 -- A court must determine the specific amount of restitution to be paid. A general order that there be restitution is insufficient. As a matter of due process the court must ascertain that the amount of restitution bears a reasonable relation to the amount of loss suffered. However, the court need not determine the precise amount to be paid in court costs. Also see State v. Day, Lucas App. No. L-02-1013, 2003-Ohio-1863.

State v. Scott, Lucas App. No. L-01-1337, 2003-Ohio-1868 -- R.C. 2929.28 requires a hearing to determine whether a defendant may be required to reimburse the costs of investigation and prosecution, but is limited to arson. As to financial sanctions, a hearing is not required in every case, provided there is some evidence in the record that the court considered the defendant's present and future ability to pay. A hearing must be held to determine whether a defendant may be ordered to pay the costs of confinement. Also see State v. Day, Lucas App. No. L-02-1013, 2003-Ohio-1863.

State v. Myers, Hardin App. Nos. 6-03-02, and 03 -- Jailing for contempt upon nonpayment of court costs is imprisonment for debt. Fines were paid. The duty to pay costs is a civil obligation. Imprisonment upon failure violates Article I, Section 15 of the Ohio Constitution. Strattman v. Studt (1969), 20 Ohio St 2d 95, followed.

State v. Furrow, Champaign App. No. 03CA19, 2004-Ohio-5272 -- Defendant sentenced to 22 years to life was ordered to pay costs of representation at $50 per month following release. Reversed for determination of present and future ability to pay.

State v. Powers (1996), 117 Ohio App. 3d 124 -- Costs may be imposed as a part of sentence only if the state is successful. Where the jury acquitted the defendant of assault and menacing, but the court found him guilty of a minor misdemeanor traffic charge, costs could not include jury fees or other costs incurred as a result of the jury trial.

Cuyahoga Falls v. Coup-Peterson (1997), 124 Ohio App. 3d 716 -- Court costs may only be assessed as a part of a sentence. Where charge was dismissed at the request of the prosecutor, ordering the defendant to pay $50 in court costs was a deprivation of property without due process, in violation of the Fifth Amendment.

State v. Shelton (1989), 63 Ohio App. 3d 137 -- A court may not make reimbursement of the cost of appointed counsel a condition of probation, nor may such expense be taxed as costs.

State v. Fitzpatrick (1991), 76 Ohio App. 3d 149 -- Defendant's share of the cost of the investigation leading to his conviction could not be taxed as court costs or restitution.

State v. Glasscock (1993), 91 Ohio App. 3d 520 -- (1) Court costs are in the nature of a civil debt. Requiring defendant to work them off by performing community service at $30 per day would be imprisonment for debt. (2) Different result as to working off fines in such a manner.

State v. Summers (1990), 71 Ohio App. 3d 1 -- Since court costs are neither a fine nor a part of the sentence, a defendant is eligible for expungement even though court costs have not been paid. Also see Cincinnati v. Wright (1945), 77 Ohio App. 261, 268; Strattman v. Studt (1969), 20 Ohio St. 2d 95, paragraph six of the syllabus.

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Community service

Cincinnati v. Howard, 179 Ohio App. 3d 60, 2008-Ohio-5502 – The sentence for a minor misdemeanor code violation was the maximum allowable $150 fine The court also ordered 30 hours of community service. Reversed as to the community service, since the city code did not provide for community service as a direct part of a minor misdemeanor sentences, and no portion of the fine was suspended conditioned on community service.

State v. Kelly, Lucas App. No. L-02-1266, 2003-Ohio-5269 -- While a court may impose no more than 200 hours of community service as a condition of probation, regardless of the number of charges, it may impose additional hours of community service in lieu of fines and court costs.

State v. Johnson, 164 Ohio App. 3d 792, 2005-Ohio-6826 -- A court must specify the number of hours of community service to be performed at the sentencing hearing but need not specify the nature of the service.

State v. Rowland (1996), 110 Ohio App. 3d 562 -- (1) Total number of hours of community service which may be imposed is 200, irrespective of the number of charges. (2) Ordering Morrow County defendant to perform community service in Cincinnati was improper as the 340 mile round trip was an unreasonable distance.

Akron v. Smith (1992), 82 Ohio App. 3d 57 -- Akron pit bull ordinance mandated $500 fine and banishment of dog from city limits. Court was without authority to suspend fine on performance of community service, nor could it refuse to order removal of dog from city limits.

Cleveland v. Anderson (1992), 82 Ohio App. 3d 63 -- Abortion protestors refused to pay fine upon conviction for disorderly conduct and asked to be sent to the workhouse. Instead, judge proposed to place them on probation and order them to perform eighty hours of community service. Upon refusal either to pay the fine or do the community service, the judge found the defendants in contempt. Conduct held not to be subject to punishment as contempt as it was not motivated by improper or illegitimate purpose. The defendants had a statutory right to refuse to perform community service and by statute were required to work off the fine at thirty dollars per day if they refused to pay and were not indigent.

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License suspensions

State v. Anthony 96 Ohio St. 3d 173, 2002-Ohio-4008 -- Syllabus: "In order for a driver's license to be suspended or revoked pursuant to R.C. 4507.16(A)(1)(b), a motor vehicle must be used in the commission of a felony. To satisfy this requirement, there must be a sufficient nexus between the offense and the vehicle to indicate that the vehicle was reasonably integral to the offense. (R.C. 4507.16[A][1][b], construed.)" Passenger got out of the back seat of a stopped car and fired shots at officer. Chase ensued. Necessary link did not exist between vehicle and the offenses of attempted felonious assault and weapon under a disability.

State v. Kinder (2000), 140 Ohio App. 3d 235 -- Applying R.C. 1.58, the defendant was entitled to the benefit of the version of controlling statutes which went into effect shortly before the sentencing hearing, which reduced the length of the license suspension the court was permitted to impose. While Kinder was disapproved in State v. Kaplowitz, 100 Ohio St. 3d 205, 2003-Ohio-5602, this was only with respect to the incarceration aspect of the sentence. Defendants remain entitled to the benefit of reduced license suspensions under the revised statutes.

State v. Watkins (1994), 96 Ohio App. 3d 195 -- Unless made a condition of probation, a court may not: (1) suspend a drivers license pursuant to R.C. 4507.16(A)(2) unless the defendant's auto was used in the commission of a felony; (2) order restitution beyond the amount of property damage; (3) order reimbursement for fees paid appointed counsel unless means are available; (4) order the defendant to pay the costs of a presentence investigation.

State v. Rowe (1997), 118 Ohio App. 3d 121 -- Trial court was without authority to restore driving privileges to defendant convicted of aggravated vehicular homicide while under the influence, which carries a mandatory permanent drivers license revocation.

Warren v. Ross (1996), 116 Ohio App. 3d 275 -- Unexplained four year delay in imposing mandatory lifetime license suspension upon conviction of vehicular homicide while under the influence meant court lost jurisdiction to do so.

State v. Burden (1996), 113 Ohio App. 3d 524 -- Court may not suspend mandatory license suspension upon conviction of a drug offense, as there is no statutory authority to do so. Opinion does not address occupational driving privileges, or does statute. Also see State v. Smith (1996), 113 Ohio App. 3d 752.

State v. White (1987), 29 Ohio St. 3d 39 -- Person convicted of involuntary manslaughter premised on aggravated vehicular homicide may have his driver's license permanently revoked.

State v. Foureman (1990), 68 Ohio App. 3d 162 -- Court was without authority to condition occupational driving privileges on installation of a guardian interlock device where the defendant was convicted of an alcohol related driving offense other than OMVI.

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Forfeiture Orders

State v. Stults, 195 Ohio App. 3d 468, 2011-Ohio-4328, 960 N.E.2d 1015, (3rd Dist) – Forfeiture is a penalty. Applying the one document rule of State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163, a forfeiture order must be incorporated in the judgment entry. Because it was a separate document in this case appeal is dismissed for want of a final appealable order. Compare State v. Walker, 5th Dist. No. 12CA0001, 2012 WL 2050864 (June 6, 2012) – Where the amended entry incorporated the forfeiture order.

State v. Brimacombe, 195 Ohio App. 3d 524, 2011-Ohio-5032, 960 N.E.2d 1042 (6th Dist.) – Defendant charged with rape surrendered his guns as a condition of bail. Following a guilty plea the judge summarily ordered the weapons destroyed. Reversed. Since 2007 statutes addressing disposition of property seized and held by law enforcement agencies have been replaced by Chapter 2981. The procedure spelled out there is mandatory, and were not followed in this case. While the defendant would now be under a disability, and not allowed to own firearms, the claims of third parties must be considered.

Credit for time served

State v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856, ¶22 -- "When a defendant is sentenced to consecutive terms, the terms of imprisonment are served one after another. Jail-time credit applied to one prison term gives full credit that is due, because the credit reduces the entire length of the prison sentence. However, when a defendant is sentenced to concurrent terms, credit must be applied against all term, because the sentences are served simultaneously. If an offender is sentenced to concurrent terms, applying credit to one term only would, in effect, negate the credit for the time that the offender has been held. To deny such credit would constitute a violation of the Equal Protection Clause. Therefore we hold that when a defendant is sentenced to concurrent prison terms for multiple charges, jail-time credit pursuant to R.C. 2967.191 must be applied toward each concurrent prison term."

State v. Anderson, 191 Ohio St. 3d 129, 2010-Ohio-4525 – Defendant was arrested for fleeing on January 1st and remained in jail until disposition of this case, and a drug indictment returned while he was in jail. Sentences were concurrent. Acting pro se he filed a motion to correct jail time credit, which was denied. Court holds that for the sentences to be fully concurrent, he was entitled to jail time credit running from January 1st on all charges.

State v. Maynard, Franklin App. No. 08AP-43, 2008-Ohio-3829 – Upon revocation of probation the defendant is entitled to credit for time served for days spent in custody following the lodging of a detainer, notwithstanding those same days were spent serving a sentence imposed for an unrelated misdemeanor.

State v. Weiss, 180 Ohio App. 3d 509, 2009-Ohio-78 – For those convicted of first, second and third degree felonies, jail time credit accrued prior to arrival at the institution may be included when the defendant must wait five years to apply for judicial release because the sentence is more than five but less than ten years. Reference to delivery to a state correctional institution applicable to those serving shorter sentences is not repeated in R.C. 2929.20(B)(4).

State v. Collier, 184 Ohio App. 3d 247, 2009-Ohio-4652 – Awarding 231 days of jail credit when the record established 264 days were due was plainly erroneous.

State v. Essa, 194 Ohio App. 3d 208, 2011-Ohio-2513, ¶151-153 – Doctor poisoned his wife, fled to Lebanon, and was taken into custody in Cyprus. He is not entitled to jail time credit for the three years he was held in Cyprus pending extradition as during that time he also faced charges for impersonation and use of a false passport.

State v. Blankenship, 192 Ohio App. 3d 639, 2011-Ohio-1601 – A misdemeanant is not entitled to credit for time served for time spent on electronically monitored house arrest while on probation. Credit for time served is not limited to periods of pretrial confinement.

State v. Parsons, Franklin App. No. 03AP-1176, 2005-Ohio-457 -- Error in calculating jail time credit may be raised by means of a motion for correction, provided the error lies in calculation and not an erroneous legal determination. Direct appeal is the remedy for legal error.

State v. Napier 93 Ohio St. 3d 646, 2001-Ohio-1890 -- Syllabus: "All time served in a community-based correctional facility constitutes confinement for purposes of R.C. 2967.191."

State v. Bradford, 149 Ohio App. 3d 586, 2002-Ohio-5508 -- A defendant is not entitled to credit for time served for time spent in a community-based correctional facility on an unrelated charge.

State v. James-Neville, Belmont App. No. 03 BE 68, 2004-Ohio-6840 -- Defendant absconded between entry of plea and sentencing hearing. He is entitled to jail time credit for the time spent in custody in Pennsylvania awaiting extradition as R.C. 2967.191 reaches confinement for any reason arising out of the offense for which the prisoner was convicted and sentenced.

State v. Russell, Marion App. No. 9-03-56, 2004-Ohio-1950 -- Inmate convicted of an offense while in prison is not entitled to credit for time served for the period prior to conviction spent serving time on a prior sentence.

State v. Eble, Franklin App. No. 04AP-334 and 335, 2004-Ohio-6721 -- Court finds no error in days of pretrial detention being credited against one concurrent sentence, but not the other.

State v. Ruby, 149 Ohio App. 3d 541, 2002-Ohio-5381, ¶92 -- Though in the court's view the issue is one for the Department of Corrections, a defendant is entitled to credit for all days in confinement of any reason arising out of the offense for which he was convicted, including days he was also in custody on unrelated charges. Repudiated: State v. Nagy, Greene App. No. 2003CA21, ¶22. But that case holds the prosecutor to proving the defendant is not entitled to the number of days he claims, and that the determination is not one to be made in response to a separate motion filed by the defendant.

State v. Hull, Marion App. No. 9-02-51, 2003-Ohio-396 -- Court erroneously overruled motion to reconsider calculation of jail time credit. Remanded for the trial court to conduct a hearing (1) to determine whether he was detained in a secure facility while receiving drug treatment, and (2) whether another county in fact gave him credit for time spent in the Marion County jail. Also see State v. Ferguson, Union App. No. 14-02-14, 2003-Ohio-866, ¶25-27.

State v. Murray (2000), 140 Ohio App. 3d 217 -- A community control violator is entitled to jail time credit for time spent in a community based correctional facility. Remanded for determination whether facility qualified as a CBCF since the program included work release.

State v. Bay (2001), 145 Ohio App. 3d 402 -- Community control violator is entitled to credit for time served in jail on the same charge.

State v. Combs (1999), 134 Ohio App. 3d 506 -- Upon revocation of probation, defendant was not entitled to credit for time served in a halfway house where security measures did not amount to incarceration.

State ex rel. Dailey v. Morgan (2001), 115 Ohio Misc. 2d 44 -- The Department of Corrections must follow awards of jail time credit by sentencing courts, even if those awards are contrary to law. Prisoner granted habeas relief. Opinion is critical of the department and of the Attorney General's Office for failing to provide certified copies of documents.

State v. Keys (September 29, 2000), Franklin Co. App. No. 99AP-116, unreported -- When first sentenced defendant received jail time for attempted failure to appear on a recognizance bond charge and community control for felony drug charge. Upon violation of community control she was not entitled to credit for time served on the misdemeanor charge. Court also treats time awaiting trial following rearrest as arising from facts separate and apart from those on which the felony sentence was based.

State ex rel. Rankin v. Ohio Adult Parole Authority, 98 Ohio St. 3d 476, 2003-Ohio-2061 -- The APA must credit jail time as determined by the trial court. Mandamus against the APA is not the remedy for failure to grant proper credit.

State v. Bradley, Champaign App. No. 02CA35, 2003-Ohio-4707 -- Defendant sentenced to community control, and not subject to imprisonment because court failed to state a presumptive term at the original sentencing hearing appealed the trial court's failure to award jail time credit for time spent in a residential drug treatment program. Appeal dismissed as issue does not become ripe for review until court imposes a sentence of imprisonment.

State v. Adams, Champaign App. No. 2003-CA-18, 2004-Ohio-3784 -- Having initially failed to state a prison term in the event community control was violated, court did so at the resentencing hearing. Appeal of that order held to be premature, as defendant had not yet received a sentence for a further violation.

State v. Furrie, Mahoning App. No. 04 MA 23, 2004-Ohio-7068 -- The trial court erroneously applied part of the defendant's jail time credit to the term on firearm specifications, as R.C. 2929.14(D)(1)(b) prohibits that being done. On remand all time is to be credited against the underlying charge. Note: Had there been more jail time credit than the amount of time imposed on the basic charge, equal protection would require credit against the time on the specification.

State v. Schlect, Champaign App. No. 2003-CA-3, 2003-Ohio-5336 -- Substantial credit for time served is not justification for imposition of the maximum sentence upon revocation of community control. ¶ 24: "(I)f jail credit must be given for time spent in an alternative facility, the credit cannot be erased through the process of imposing sentence for a community control violation." First determining that the maximum sentence was not warranted, the court goes on to conclude no more than the minimum was justified and modifies the sentence accordingly.

Workman v. Cardwell (U.S.D.C., S.D. Ohio, 1972), 338 F. Supp. 893, 60 Ohio Ops. 2d 187, 31 O. Misc. 99 -- "The Equal Protection Clause requires that all time spent in any jail prior to trial and commitment by prisoners who were unable to make bail because of indigence must be credited to his sentence. The Fourteenth Amendment does not conscience (sic) discretion in such matters." Also see White v. Gilligan (U.S.D.C., S.D. Ohio, 1972), 351 F. Supp. 1012; Williams v. Illinois (1970), 399 U.S. 235; Tate v. Short (1971), 401 U.S. 395; State v. Piersall (1984), 20 Ohio App. 3d 110.

Hoff v. Wilson (1986), 27 Ohio St. 3d 22 -- Defendant is entitled to jail time credit even though he was allowed work release during the period of confinement.

Haddox v. Houser (1975), 44 Ohio App. 2d 389 -- Misdemeanant is entitled to credit for time served before pleading guilty to charge reduced from initial felony. Also see State v. Berger (1984), 17 Ohio App. 3d 8.

State v. Hines (1999), 131 Ohio App. 3d 118 -- Time spent in a community based corrections facility must be credited against a prison sentence. Also see State v. Corbin (1999), 131 Ohio App. 3d 239; State v. Peters (May 13, 1999), Licking Co. App. Nos. 98-CA-00118 and 00119, unreported; State v. Rice (July 2, 1999), Licking Co. App. No. 99CA0019, unreported; State v. Snowder (1999), 87 Ohio St. 3d 335; State v. Fair  (2000), 136 Ohio App. 3d 184.

State v. Logan (1991), 71 Ohio App. 3d 292 -- Defendant need not be given jail time credit for time spent in prison on an unrelated charge while awaiting trial.

State v. Smith (1992), 71 Ohio App. 3d 302 -- Defendant not entitled to credit for time spent serving unrelated misdemeanor sentence while awaiting trial.

State ex rel. Foster v. Ohio Adult Parole Authority (1992), 65 Ohio St. 3d 456 -- A defendant serving consecutive terms of incarceration is not entitled to double credit for time served. Also see State v. Callender (February 4, 1992), Franklin Co. App. No. 91AP-713, unreported (1992 Opinions 290).

State, ex rel. Moss, v. Subora (1987), 29 Ohio St, 3d 66 -- Defendant not entitled to double credit for same days spent awaiting trial in different counties.

State v. Tyler (1993), 90 Ohio App. 3d 380 -- Defendant not entitled to credit for time served for period of house arrest while presentence investigation was being prepared. Also see State v. Faulkner (1995), 102 Ohio App. 3d 602 (electronically monitored house arrest).

State, ex rel. Corder, v. Wilson (1991), 68 Ohio App. 3d 567 -- It is the duty of the trial court to certify to the Adult Parole Authority the amount of jail time credit due. The APA in turn must accept this figure.

State v. Gregory (1996), 108 Ohio App. 3d 264 -- Defendant absconded during probation, then spent time in jail awaiting disposition of new charges and probation revocation. Following acquittal on the new charge, defendant was entitled to credit for time spent in jail against the sentence enforced upon probation revocation. In view of acquittal, the court could not allocate all of that time to the new charge. (2) It is the duty of the court and not the Department of Corrections to calculate jail time credit.

State v. Smith (May 15, 1979), Franklin Co. Case No. 78AP-661 -- Credit for time served calculated upon revocation of probation must include time previously spent in jail as a condition of probation.

State v. James (1995), 106 Ohio App. 3d 686 -- Juvenile was bound over for trial as an adult for attempted murder, but was convicted of assault. Time spent in juvenile detention should have been credited against sentence imposed. Excess time served need not be credited towards the fine at the statutory $30 per day.

State v. Nagle (1986), 23 Ohio St. 3d 185 -- Syllabus: "When a defendant's sentence has been suspended and he has been placed on conditional probation pursuant to R.C. 2951.04, and later violates the terms of such probation, the trial court is not required to credit time spent in a rehabilitation facility against any sentence originally imposed. [Note: nothing in decision precludes credit being given and result might be otherwise if programs is particularly confining. State, ex rel. Corder, v. Wilson (1991), 68 Ohio App. 3d 567 holds the APA must accept time spent in such facilities, if included in time certified by court, or appeal.]

State v. Lawrence (1996), 111 Ohio App. 3d 44 -- Inmate brought to Ohio under the Interstate Agreement on Detainers was not entitled to credit for time spent in jail here awaiting trial. Setting bond would have been fruitless. Under the IAD, defendant remained in the custody of the sending state.

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Postrelease control advisement

State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434 – Syllabus: “(1) For criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio. (2) For criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in R.C. 2929.191.” H.B. 137 purported to allowed correction without de novo resentencing in all cases where PRC had been omitted. Court reviews its line of void judgment cases, then at ¶26 states, “H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction.” However, it may apply prospectively. Five-two split on ¶1 of the syllabus (merely voidable, thus no jeopardy violation). Four-three split on ¶2 (void is void).

State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197 – Syllabus: "In cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed upon the defendant unless the defendant has completed his sentence."

State v. Schmitt, 175 Ohio App. 3d 600, 2008-Ohio-1010 – A resentencing hearing to add postrelease control, as authorized by R.C. 2929.191, must be a de novo sentencing hearing. Also see State v. Watt, 175 Ohio App. 3d 613, 2008-Ohio-1009. (Now superseded.)

State v. Fisher, 181 Ohio App. 3d 758, 2009-Ohio-1491 – A resentencing hearing following the failure to include postrelease control does not permit the defendant to relitigate unsuccessful claims in his previous appeal as of right from the initial conviction. The law of the case doctrine applies.

State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332 – The Court returns again to discussion of void versus voidable sentences that goes back to State v, Beasley, (1984), 14 Ohio St. 3d 74, and continued through cases concerning correction of the omission of postrelease control from sentences. Recognizing (somewhat) the difficulties that have resulted the court interposes the concept of limited voidness, premised on failure to follow statutory mandates in passing sentence, as opposed to the broader compass of voidness based on a lack of jurisdiction. Syllabus: “(1) A sentence that des not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. (2) The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E. 2d 961, syllabus, modified.) (3) Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence. (4) The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.” See dissent.

State v. Williams, 195 Ohio App. 3d 505, 2011-Ohio-4653, 960 N.E.2d 1027 (10th Dist.) – At resentencing the court failed to advise regarding postrelease control. Reversed. Though is some cases the Tenth District has relied on a “Prison Imposed” notice signed by the defendant, such form is not in the record. Furthermore, since this was a jury trial the defendant did not have the benefit of the advisement included in the standard guilty plea form.

State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085 -- Syllabus: (1) When sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence. (2) When a trial court fails to notify an offender about postrelease control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of R.C. 2929.19(B)(3)(c) and (d), and, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing." Omission does not preclude postrelease control, but it may not be imposed unless it is a part of the trial court's judgment. Also see State v. Harris, Cuyahoga App. No. 81677, 2003-Ohio-1003; State v. Peacock, Lake App. No. 2002-L-115, 2003-Ohio-6772, ¶40-41.

State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250 -- Syllabus: "When a defendant is convicted or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense." But in this case the sentence has been completely served and the defendant will not be subject to resentencing. Dissent is troubled by so readily treating the entire sentence as void.

State v. Bock, Franklin App. No. 07AP-119, 2007-Ohio-6276 -- When a sentence is void because of the omission of postrelease control, upon resentencing the court may impose a lesser sentence. Original sentence was premised on the belief judicial release was a possibility.

State v. Brown, Hamilton App. Nos. C-020162, C-020163, C-020164, 2002-Ohio-5983 -- After reviewing decisions in the First and other appellate districts concerning what advice must be given concerning post-release control, held that there must be some verbal exchange between the judge and the defendant concerning post-release control. It is sufficient if this merely confirms the defendant's understanding of the conditions spelled out in the written plea agreement. Reference in the judgment entry is not sufficient where the defendant does not see the entry at the plea or sentencing hearing. Since advice in this case is deemed adequate, court does not further consider whether a failure to properly advise renders post-release control unenforceable, as the defendant claimed, or requires resentencing.

State v. Harris, 160 Ohio App. 3d 851, 2005-Ohio-2503 ¶13-18 -- Postrelease control must be addressed at the sentencing hearing even if it has been addressed at the plea hearing.

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Execution of sentence

State v. Garretson (2000), 140 Ohio App. 3d 554 -- Defendant was mistakenly let out of prison early by the Department of Corrections. Prosecutor filed a motion in the trial court to have him taken back to serve the rest of his time. Defendant showed up as a spectator at the hearing, and was taken back to prison when the court granted the motion. Since the original sentencing order was valid, "when Garretson was delivered to the permanent detention facility, the authority of the judicial branch over Garretson's sentence ended. Thereafter the trial court had no authority in the motion proceeding before it to order that Garretson be returned to prison to serve an additional eight months."

State v. Fletcher, Lucas App. Nos. L-01-1495, L-01-1496, 2002-Ohio-6685 -- A court has no authority to amend a valid sentence once it has been executed. Upon violation of community control the defendant was given concurrent six month sentences. After he filed a motion seeking jail time credit, the court vacated these sentences and imposed concurrent fourteen month sentences. Reversed, though moot.

State v. Longmire, Portage App. No. 2001-P-0014, 2002-Ohio-7153 -- Court denied motion to modify sentences from consecutive to concurrent based on good behavior in prison and events subsequent to sentencing. Res judicata did not bar reconsideration, however, once sentence was executed court was without authority to modify the terms.

State v. Evans, 161 Ohio App. 3d 24, 2005-Ohio-2337 -- A court may modify a sentence to community control before the defendant has commenced serving a prison term. Following an unsuccessful appeal, the presentence investigation was changed to recommend community control. The judge modified the sentence. The prosecutor's appeal was unsuccessful.

In re Zilba (1996), 110 Ohio App. 3d 258 -- Execution of sentence begins when the defendant begins serving the period of probation specified. Once the execution of that sentence began, a trial court is without jurisdiction to reconsider and impose a higher sentence. Judge decided sentence was ill-advised after receiving additional information. Writ of habeas corpus granted.

State v. Roberts (1986), 33 Ohio App 3d 201 -- In felony cases, R.C. 2929.51(A) permits the court to suspend the sentence and place the offender on probation at any time prior to when he is delivered into the custody of the institution, even when the defendant has been released for an extended period while his appeal was pending.

State v. Addison (1987), 40 Ohio App. 3d 7 -- Once a valid sentence has been executed, it may not be modified except as provided by the General Assembly. A felony sentence is executed when the defendant is delivered to the penal institution and may be modified only by granting shock or super shock probation. Also see State v. Kraguljac (1988), 39 Ohio App. 3d 167.

State v. Wobler (1983), 10 Ohio App. 3d 155 -- Failure of sheriff to formally deliver defendant to custody of state penal institution does not deprive court of authority to see that its sentence is carried out, even though the defendant had meanwhile served a sentence from another county.

State v. Zucal (1998), 82 Ohio St. 3d 215 -- Syllabus: "(1) In convictions involving misdemeanor offenses, a delay in execution of sentence resulting from jail overcrowding that exceeds five years from the date that sentence is imposed is unlawful. (2) Any sentence resulting from a conviction of a misdemeanor offense that is not completed within five years from the date of sentencing must be vacated. (3) Sentences may continue to be modified, in accordance with applicable law, within the five year period after imposition of sentence. (4) No modification of sentence may occur after five years from the date of sentencing."

North Canton v. Hutchinson (1996), 75 Ohio St. 3d 112 -- Syllabus: "Absent explicit review and judgment by a trial court, a directive issued by a jail authority releasing a defendant and suspending the commencement of his or her sentence because the jail is at maximum capacity and cannot accommodate the defendant is not an 'order' that may be appealed. (R.C. 2505.03[A] and 2505.02, construed and applied.)" Defendant was told to come back in five years to serve her twelve day sentence. Court is somewhat sympathetic to lower court's finding this is cruel and unusual punishment and suggests alternate remedies.

Willoughby v. Lukehart (1987), 39 Ohio App. 3d 74 -- Court lost authority to pass sentence by reason of a sixteen month delay between conviction and sentencing occasioned by the probation department's failure to complete PSI. Also see Neal v. Maxwell (1963), 174 Ohio St. 201.

State v. Patton (1996), 117 Ohio App. 3d 86 -- Almost two year delay between the Supreme Court's refusal to accept jurisdiction and receipt of notice by trial court, and the enforcement of sentence, did not implicate speedy trial rights since trial had been had. Nor on these facts does the court find a due process violation.

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Sentence appeals generally

Greenlaw v. United States (2008), 128 S.Ct. 2559 – In imposing sentence the district court failed to impose the mandatory minimum term. Government did not appeal or cross appeal, though the defendant appealed. Appellate court of its own initiative could not order an increased sentence. In civil and criminal cases, in both trial courts and appellate courts the parties frame the issues for decision and the courts serve as neutral arbiters. Plain error rule does not allow the appellate court to address other issues.

State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1 – Syllabus: “(1) When a sentence is imposed for multiple counts of offenses that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence even though it was jointly recommended by the parties and imposed by the court. (2) A sentence is ‘authorized by law’ and is not appealable within the meaning or R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions.” State conceded that two of the offenses pled to were allied offenses of similar import. Court imposed concurrent sentences within the maximum set forth in the plea agreement. ¶27: Courts are under a duty to merge counts at sentencing. ¶29: Parties could have stipulated the offenses did not merge. ¶31: Reversible as plain error. Even though counts were concurrent, “a defendant is prejudiced by having more convictions than are authorized by law.”

State v. Barajas-Larios, 178 Ohio App. 3d 613, 2008-Ohio-5460 – Drug charge carried a mandatory sentence of ten years. Parties jointly recommended a sentence in the 3-7 year range. Though the sentence was jointly recommended it remains reviewable, notwithstanding R.C. 2953.08(D)(1), because the recommended sentence was not authorized by law. A plea induced by the promise that cannot be fulfilled is not made knowingly, intelligently and voluntarily.

State v. Kennedy, Montgomery App. No. 19635, 2003-Ohio-4844 -- A less than maximum sentence for felonious assault is not appealable as being contrary to law. That term refers to a sentencing decision that ignores an issue or factor which a statute requires a court to consider.

State v. Lowe, Summit App. No. 21426, 2003-Ohio-6807, ¶ 27-29 -- The imposition of consecutive sentences for multiple counts of murder or aggravated murder is not subject to appeal pursuant to R.C. 2953.08.

State v. Baumgartner, 148 Ohio App. 3d 282, 2002-Ohio-3174 -- Capital murder defendant was sentenced to consecutive terms of 20 years to life for two aggravated murders, 10 years for attempted aggravated murder, and 3 years on firearm specifications. Reference to twenty-year terms in the judgment requires remand to correctly state 20-life, but confusion caused by the entry alone cannot be exploited where Rule 11 was complied with and the sentence was properly stated in open court.

State v. Furrow, Champaign App. No. 03CA19, 2004-Ohio-5272, ¶9 -- Regarding the availability of an appeal when consecutive sentences include a term for murder: "The State is correct that R.C. 2953.08(C) appeals are limited to consecutive sentences imposed per R.C. 2929.14(E)(3) or (4) that exceed the maximum prison term allowed by R.C. 2929.14(A) for the most serious offense of which Defendant was convicted. However, the mandates of R.C. 2929.14(E)(4) apply to consecutive prison terms imposed for all felony offenses. Therefore, any claim that the trial court erred when it imposed consecutive sentences is a claim that the consecutive sentences were imposed 'contrary to law,' which is appealable as a matter of right per R.C. 2953.08(A)(4), and further reviewable per R.C. 2953.08(G)(2)(b). Prior leave to appeal is not then required..."

State v. Walls, Erie App. No. E-01-021, 2002-Ohio-3578 -- When the defendant in the plea colloquy agrees to serve the recommended sentence, the sentence is not subject to appellate review, provided it is authorized by law. R.C. 2953.08(D) applied. Also see <State v. Lentz, 2d Dist. App. No. 01CA31, 2003-Ohio-911>.

State v. Owens, Montgomery App. No. 19546, 2003-Ohio-5736 -- A jointly recommended sentence is not appealable.

State v. Porterfield, 106 Ohio App. 3d 5, 2005-Ohio-3095 -- When consecutive life sentences are imposed, review of that decision is not precluded under R.C. 2953.08(D), unless those sentences have been jointly agreed upon and stipulated to be justified.

State v. Davis, Clark App. No, 2002-CA-43, 2003-Ohio-4839, ¶117-124 -- A reviewing court may determine whether or not imposition of a maximum sentence is supported by the record.

Toledo v. Reasonover (1965), 5 Ohio St. 2d 22 -- Paragraph one of the syllabus: "The Court of Appeals cannot hold that a trial court abused its discretion by imposing too severe a sentence on a defendant convicted of violating an ordinance, where the sentence imposed is within the limits authorized by the applicable ordinances and statutes and there is nothing in the record to indicate whether defendant had a past criminal record(,) or what his driving record was(,) or that the trial court in sentencing defendant did not consider any such past records." Also see State v. Crouse (1987), 39 Ohio App. 3d 18.

State v. Lazada (1995), 107 Ohio App. 3d 189 -- After a reasonably detailed exposition of the applicable standards for review, the court nonetheless concludes that maximum consecutive sentences for auto theft and possession of criminal tools was neither cruel and unusual punishment, nor in reprisal for acquittal on related charge of felonious assault on a police officer. Consider case as a point of departure for sentencing appeals under the 1996 sentencing laws.

State v. Garrison (1997), 123 Ohio App. 3d 11, 17-18 -- After a jury trial the defendant received maximum consecutive indefinite sentences for robbery and abduction counts where no one was injured, property was of little value, and prior record was modest. Remanded because the sentence appears "strikingly inconsistent" with the factors courts are to consider in sentencing, and the court gave no reasons supporting such a long sentence.

State v. Haman (1993), 90 Ohio App. 3d 654 -- Practitioner and professor of law looted clients' accounts to the tune of approximately $2.5 million, lost most of it on horses, pleaded guilty to more than thirty counts, and received near maximum, consecutive sentences. Opinion discusses and rejects a multitude of attacks on the sentence, essentially concluding any sentence within statutory limits is acceptable.

State v. Wagner (1992), 80 Ohio App. 3d 88, 96 -- Failure to consider statutory guidelines demonstrated where in sentencing Ph.D. candidate for telephone harassment, judge said: "You've got a real problem pal. 180 days, suspend 90. You're going to jail for 90 days tonight."

State v. Robertson (1995), 108 Ohio App. 3d 173 -- The presumption of vindictiveness which applies when a defendant has won on appeal, then been convicted when retried and give a greater sentence, does not apply when the greater sentence follows an appeal from a guilty plea, and conviction at the retrial.

State v. Mitchell (1997), 117 Ohio App. 3d 703 -- Defendant rejected plea bargain and received a substantially longer sentence after being convicted at trial. Though some aspects of the court's action may be criticized, there is no presumption of vindictiveness in these circumstances, and the defendant's record and attitude following conviction reflected poorly on his "prospects for rehabilitation." See dissent.

State v. Bruce (1994), 95 Ohio App. 3d 169 -- Vindictiveness and improper reasoning not found where after mistakenly imposing a low definite term, court imposed a greater indefinite term (based on an overlooked specification) at a second sentencing hearing where victim appeared and was heard.

State v. Beasley (1984), 14 Ohio St. 3d 74 -- Erroneous sentence (fine only for non probationable offense) may be corrected through appeal by prosecutor without violating the Double Jeopardy Clause. Also see State v. Vaughn (1983), 10 Ohio App. 3d 314; Brookpark v. Necak (1986), 30 Ohio App. 3d 118; Bozza v. United States (1947), 330 U.S. 160.

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Standards for appellate review; jurisdiction of the court of appeals

State v. Brimacombe, 195 Ohio App. 3d 524, 2011-Ohio-5032, 960 N.E.2d 1042 (6th Dist.) – In a pre-HB 86 case the court did not make a finding or supply reasoning in support of imposing the maximum sentence. Post-Foster it was not required to do so. The record demonstrates that the court considered the applicable factors guiding sentencing. Claimed abuse of discretion brushed off by recitation that “the totality of the substantive conduct involved in committing the crime.”

State v. Howard, 174 Ohio App. 3d 562, 2007-Ohio-4334, ¶7-10 – Defendant claimed retroactive application of the State v. Foster excised sentencing statutes operated as an ex post facto. Claim is beyond the jurisdiction of a Court of Appeals, which may not review the judgments of the Supreme Court.

State v. Kalish, 120 Ohio App. 3d 23, 2008-Ohio-4912, ¶26 – "… (A)ppellate courts must apply a two-step approach when reviewing felony sentences. First, they must 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. If this first prong is satisfied, the trial court‘s decision in imposing the terms of imprisonment is reviewed under the abuse of discretion standard." R.C. 2929.11 and 2929.12 are aspirational but do not require findings in the view of the prevailing plurality. Three dissenting judge believe review under 2953.08(G)(2)(2)(b) remains as before – except there are no longer findings to review. Followed: State v. Reed, 192 Ohio App. 3d 657, 2011-Ohio-308.

State v. Nicholas, 195 Ohio App. 3d 323, 2011-Ohio-4671 – Applying State v. Kalish, 120 St. 3d 23, 2008-Ohio-4912, sentence was not contrary to law but did constitute an abuse of discretion. Considering the facts of the case and weighing R.C. 2929.12 factors, four maximum consecutive terms for a 40 year old GSI offender were not supportable.

State v. Kehoe (1999), 133 Ohio App. 3d 591, 614 -- "An appellate court may not disturb a sentence imposed under Senate Bill 2 unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. Note that this is an oversimplification of the actual language of R.C. 2953.08, and that the actual requirement is that the court "clearly and convincingly find" one of the enumerated factors.

State v. Stern (2000), 137 Ohio App. 3d 110 -- Syllabus by the court: "(1) Abuse of discretion is no longer the standard of review for sentences; as appellate decisions are to be the new benchmarks for sentencing consistency, if the reviewing court clearly and convincingly finds insufficient the trial judge's basis for imposing a prison term, it must vacate the sentence as a matter of law and exercise one of the appellate options provided by statute. (2) A sentencing court must ensure that its sentence is 'consistent with sentences imposed for similar crimes committed by similar offenders.' R.C. Sec 2929.11(B). (3) The statutory mandate for consistent sentencing found in R.C. 2929.11(B) is an essential consideration when sentencing co-defendants. (4) Where the defendant received a harsher sentence that his co-defendant, who participated in the same burglary and robbery, the longer term of imprisonment was justified because the defendant was convicted of three first-degree felonies, while his co-defendant was only convicted of two..."

State v. Brown, 146 Ohio App. 3d 654, 2001-Ohio-4266 -- In a sentence appeal the reviewing court is not limited to determining whether the trial court abused its discretion. Rather it may reverse if it finds by clear and convincing evidence that the record does not support the sentence imposed. In denying community control for an F-4, the trial court need not find one or more of the R.C. 2929.13(B)(2)(a) and (b) factors exists. Court may consider new material facts raised in a victim-impact statement provided the defendant is given an opportunity to respond.

State v. Burton, Franklin App. No. 06AP-690, 2007-Ohio-1941 -- Post-Foster, the standard for appellate review of sentences does not revert to the pre S.B. 2 abuse of discretion standard. The clear and convincing standard set forth in R.C. 2953.08(G) remains in effect, and is less deferential to the judgment of the trial court than the abuse of discretion standard. Compare State v. Anderson, 172 Ohio App. 3d 603, 2007-Ohio-3849 finding abuse of discretion is again the standard for appellate review of sentencing.

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Sentencing appeals - other issues

State v. Barker, 183 Ohio App. 3d 414, 2009-Ohio-3511 – (1) Waiver of jury trial on a repeat violent offender specification waives claimed Foster error. (2) When passing sentence on a repeat violent offender specification the evidence must support whatever factual foundation is called for by the referenced subsection within R.C. 2929.14(D)(2). Here the defendant was sentenced to additional time under former R.C. 2929.14(D)(2)(b) though his prior convictions were more than twenty years in the past. While he would have been eligible for additional time under (D)(2)(a), that wasn‘t the subsection referenced in the judgment entry.

State v. Mushrush, (1999), 135 Ohio App. 3d 99 -- Guidelines in the revised sentencing statutes are intended to guide judges in passing sentence, not to advise defendants of the potential penalty for breeches of the law.

State v. Murray, 149 Ohio App. 3d 248, 2002-Ohio-3537 -- Coal and speedboat tycoon convicted of criminal non-support of his daughter by a topless cocktail waitress. Evidence supported conviction - he could have at least paid something, despite his business setbacks. Eleven-month sentence affirmed as well.

Statev. Wolfe, Columbiana App. No. 03 CO 45, 2004-Ohio-3044 -- Ten-month concurrent sentences for receiving stolen property are not contrary to law as an unnecessary burden on the state's resources. Court cites the defendant long record, even though his last prison term ended in 1988. Also see State v. Ober, (October 10, 1997), Second Dist. App. No. 97CA0019, State v. Vlahopolous, 154 Ohio App. 3d 450, 2003-Ohio-5070, ¶5; State v. Howard, Ashland App. No. 04COA036, 2005-Ohio-854.

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Maximum sentences generally

State v. Davis, Clark App. No, 2002-CA-43, 2003-Ohio-4839, ¶117-124 -- A reviewing court may determine whether or not imposition of a maximum sentence is supported by the record.

State v. Blake, Union App. No. 14-03-33, 2004-Ohio-1952 -- While a court may give some consideration to allegations forming the basis for dismissed charges, it may not impose a maximum sentence based on the belief the defendant is guilty of the greater offense or of dismissed counts.

State v. Schlect, Champaign App. No. 2003-CA-3, 2003-Ohio-5336 -- Substantial credit for time served is not justification for imposition of the maximum sentence upon revocation of community control. ¶24: "(I)f jail credit must be given for time spent in an alternative facility, the credit cannot be erased through the process of imposing sentence for a community control violation." First determining that the maximum sentence was not warranted, the court goes on to conclude no more than the minimum was justified and modifies the sentence accordingly.

State v. Leet, Montgomery App. No. 20357, 2005-Ohio-306 -- Appeals from imposition of maximum sentences are limited to where there is a single offense or multiple offenses arising from the same incident. Maximum sentences from separate incidents are not appealable. Findings and reasons provided supported making the sentences consecutive.

State v. Beasley (1999), 134 Ohio App. 3d 694 -- (1) Maximum sentences for fifth degree felonies are appealable in the same manner as maximum sentences for more serious offenses. See dissent. (2) Failure to appear for initial sentencing hearing is not among the statutory factors warranting imposition of either maximum or consecutive sentences, but use of worksheet demonstrating point at which failure to appear was considered avoided error.

State v. Kelly, Montgomery App. No. 2004-CA-20, 2005-Ohio-305 -- Faced with brief argument that imposition of the maximum sentence was excessive, court states it does not have authority to determine whether the trial court abused its discretion in selecting the sentence that it did. Appellant had the burden of demonstrating the manner in which the sentence was contrary to law.

State v. Hollander (2001), 144 Ohio App. 3d 565 -- "Acknowledged pedophile" with a long record does not fare well in claims maximum and consecutive sentences were improper.

State v. Parker (2001), 144 Ohio App. 3d 334 -- Trial court must state reasons in support of its findings with regard to maximum and consecutive sentences. Second reversal in this case for failure to do so. Also see State v. Marine (2001), 141 Ohio App. 3d 127, 134-135 (consecutive sentences); State v. Seitz (2001), 141 Ohio App. 3d 347 (maximum sentence); State v. Moore (2001), 142 Ohio App. 3d 593 (maximum and consecutive sentences); State v. Fonzi, Greene App. No. 2002 CA 11, 2003-Ohio-205 (consecutive sentences); State v. McCall, 152 Ohio App. 3d 377, 2003-Ohio-1603; State v. Adkins, Greene App. No. 2002 CA 113, 2003-Ohio-1571.

State v. Trembly (2000), 137 Ohio App. 3d 134, 142-143 -- The Cuyahoga County Court of Appeals interprets the proviso in R.C. 2929.14(C) "except as provided...in Chapter 2925 of the Revised Code" to create with respect to drug cases a blanket exemption from the requirement the court make findings in support of the maximum sentence. Note: This is incorrect, as the actual reference is to the pattern within the drug statutes of deviating from the standard presumptions for or against imprisonment, for example directing that a fourth degree felony drug offense be sentenced in accordance with the considerations applicable to third degree felonies. For a case calling for findings to be made see State v. Weaver (2001), 141 Ohio App. 3d 512.

State v. White (1999), 135 Ohio App. 3d 481 -- First offender got 70 years for rape convictions arising from a single incident. Affirmed. Lack of remorse manifest in statement he would "serve his sentence as a sacrifice to all those falsely accused of crimes" didn't help. For another case demonstrating indifference to what appear to be excessive sentences see State v. Long (136 Ohio App. 3d 73 (compare dissent).

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Maximum sentences, Worst form of the offense

State v. Liming, Greene App. No. 02CA43, 2004-Ohio-168 -- (1) Since every aggravated vehicular homicide involves serious physical harm, that seriousness factor is neutralized among all such offenders. (2) Substantial compliance with findings requirements is not enough. (3) It was an abuse of discretion to deny a continuance for the defendant to respond to surprising matters revealed in the presentence investigation.

State v. Liming, Greene App. No. 2004-CA-48, 2005-Ohio-208 -- Defendant did not commit the worst form of aggravated vehicular homicide where there was no indication of excessive speed or recklessly (except for the possibility of an under-inflated tire), the blood-alcohol level was only slightly above the minimum, and the level of drugs detected was only a trace.

State v. Williams (2000), 136 Ohio App. 3d 570 -- Though the record of the sentencing hearing indicates the court may have considered the seriousness and recidivism factors set forth in R.C. 2929.12, it does not indicate which factor supported its decision to impose the maximum sentence. A finding in the judgment entry that it was the worst form of the offense was not sufficient.

State v. McDaniel (2001), 141 Ohio App. 3d 487, 493 -- "...(W)here facts or circumstances are unrelated to the offense as charged, even if they could have been made a part of the charge, they are not part of the offense for the purpose of determining whether the charged offense...is the worst form of the offense." Defendant pleaded guilty to involuntary manslaughter premised on permitting drug abuse. The autopsy report indicated injuries observed could have been a contributing cause of death. While these injuries may be considered, they may not form the basis for finding the defendant committed the worst form of the offense.

State v. Steward, Washington App. No. 02CA43, 2003-Ohio-4082 -- By clear and convincing evidence, court concludes that the defendant did not commit one of the worst forms of aggravated robbery. Gun was unloaded. Defendant said he needed money to prevent his girlfriend from having an abortion. Despite a prior record, evidence did not support conclusion defendant presented the greatest likelihood of committing future offenses. Since the defendant was indigent, it was error to impose costs.

State v. Condon, 152 Ohio App. 3d 629, 2003-Ohio-2335 -- Fine arts photographer was convicted of abuse of a corpse after taking posed pictures at the morgue without authorization. Albeit fifth degree felonies, prison sentences were justified, though not the maximum. Taking photos was not the worst form of the offense. Photographer was not a public official and did not use his professional position to facilitate his crimes. R.C. 2919.13(B)(1) is primarily directed at public officials and public servants. Also see State v. Brewer (November 24, 2000) 1st Dist. No. C-000148.

State v. Mays (2000), 139 Ohio App. 3d 177 -- Though aggravated vehicular homicide was the result of what began as a reckless prank, it did not amount to the worst form of the offense, lefting the maximum sentence. Nor was a consecutive sentence for tampering with evidence justified where basis was washing car after striking pedestrian.

State v. Quinn (1999), 134 Ohio App. 3d 459 -- Defendants broke into a house, urinated on the floors, then stole and burned a family car. Though the court did not use the magic words that imposing less than the maximum sentence would "demean the seriousness of the offender's conduct," statements that the crimes were the worst imaginable form of the offense, shocking to the conscience, and unforgivable were sufficient. Court was required to consider recidivism factors, but not to state its findings in that regard.

State v. Boshko (2000), 139 Ohio App. 3d 827, 837 -- "A trial court does not have to imagine the most abhorrent form of rape to conclude that appellant has committed the worst form of the offense." Repeated rape of young stepdaughter warranted imposition of consecutive ten year sentences.

State v. Sprowls, Lake App. No. 2003-L-056, 2004-Ohio-6328 -- Defendant was convicted of involuntary manslaughter. Judge imposed the maximum sentence reasoning the defendant's acts fell just short of murder, making it the worst form of the offense. Reversed as this reasoning improperly nullifies the jury's finding the defendant acted under the influence of sudden passion or in a sudden fit of rage provoked by the victim. Blakely claim may be considered on remand.

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Multiple sentences in general

Also see Allied Offenses of Similar Import

State v. Bellamy, 181 Ohio App. 3d 210, 2009-Ohio-888 – As to concurrent sentences imposed in different counties, a newly imposed concurrent sentence runs with the unexpired portion of the previously imposed sentence. The court expresses no opinion as to whether a court may go further and date the beginning of concurrent time back to the beginning of the sentence imposed in the other county.

State v. Bates, 118 Ohio St. 3d 174, 2008-Ohio-1983 – A court may order a sentence be served consecutively to the sentence previously imposed by another court of common pleas. Arguably under the S.B. 2 sentencing statutes a court did not have such authority, but since State v. Foster abrogated those statutes [R.C. 2929.14(E)(4) and 2929.41(A)] in their entirety, the court law reverts to the court‘s authority under common law. That permitted consecutive sentences in such circumstances. Also see State v. Elmore, 122 Ohio St. 3d 472, 2009-Ohio-3478, ¶31-35.

State v. Johnson, 116 Ohio St. 3d 541, 2008-Ohio-69R.C. 2929.13(F) does not require that mandatory life sentences for rape of a child be served consecutively

State v. Worrell, Franklin App. No. 06AP-706, 2007-Ohio-2216 -- Court rejects claim that Foster‘s excision of sentencing statutes precludes imposition of consecutive sentences. The Foster opinion indicates they are still be a part of the landscape and an intermediate appellate court may not override the decision of the Supreme Court also suggests that looking to common law the imposition of consecutive sentences was within the inherent powers of courts. Followed: State v. Rigsbee, 174 Ohio App. 3d 12, 2007-Ohio-6267, ¶38-45.

State v. Terry, 171 Ohio App. 3d 473, 2007-Ohio-1096 -- Before the decision in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, R.C. 2929.41(A) required misdemeanor sentences be served concurrently with felony sentences. The body of the Foster decision states R.C. 2929.41 is excised in its entirety, but the syllabus refers only to subdivision (A). Since the body of a Supreme Court opinion is controlling over the syllabus, the sentencing court was left with R.C. 2929.41(B) which permits consecutive sentences.

State v. Culgan, 147 Ohio App. 3d 19, 2001-Ohio-1944, ¶20-29 -- A court may impose consecutive six month terms of imprisonment as a community residential sanction when sentencing defendants convicted of multiple felonies. Compare State v. Lehman (Feb. 4, 2000), Lucas App. No. L-99-1140.

State v. Fanti, 147 Ohio App. 3d 27, 2001-Ohio-7028 -- In 1989 defendant pled guilty to eight counts. He was sent to prison on four and granted probation on the rest, to begin after release. Probation revocation proceedings later on resulted in the defendant being sent off to serve a prison term, first on two of the remaining counts, and later on two more. Reversed. R.C. 2951.07 tolls running of probation only during incarceration for offenses committed after commencement of the probationary period.

State v. Sears, Wyandot App. No. 16-02-07, 2002-Ohio-6257 -- A court may not order its sentence be served consecutively with any future sentence the defendant may receive. Doing so interferes with the discretion given the judge in the subsequent case. Also see State v. White (1985), 18 Ohio St. 3d 340, 342-343; State v. Ferguson, Union App. No. 14-02-14, 2003-Ohio-866, ¶22-24.

State v. Alexander, 162 Ohio App. 3d 333, 2005-Ohio-3564 -- A court may not order a sentence be served consecutively to any future sentence the defendant may receive for violation of his federal court probation.

State v. Wise, Clermont App. No. CA2003-12-113, 2004-Ohio-6241 -- Defendant had charges in Hamilton and Clermont Counties. Against a complex series of events including appellate remand for resentencing in Clermont County, the court applies the in futuro rule and res judicata in determining Clermont's County's order of consecutive sentences was controlling.

State v. Cherry, 159 Ohio App. 3d 307, 2004-Ohio-6431 -- A court may not impose consecutive sentences to punish the defendant for his failure to appear for sentencing, though such failure may be the basis for an enhanced sentence. But the error was harmless as the court made sufficient findings otherwise supporting the consecutive sentences. Dissent notes the defendant would have received community control had he appeared.

State v. Byrd, Hamilton App. Nos. C-040005 and C-040017, ¶18 -- A sentence for aggravated robbery premised on attempting to take an officers weapon must be consecutive to any other prison term.

State v. Campbell, 162 Ohio App. 3d 413, 2005-Ohio-3980 -- If consecutive sentences may be imposed upon violation of community control, the defendant must be advised accordingly at the initial sentencing hearing. Also see State v. Thompson, Fairfield App. No. 01CA62, 2002-Ohio-4717.

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Consecutive sentences - factual justification

State v. Myers, Champaign App. No. 00CA03, 2005-Ohio-447 -- Consecutive sentences for aggravated robberies committed in different counties were not justified. ¶27: "...(T)he record doe not portray the nature and extent of any physical harm suffered by the victim, much less that the physical harm caused was so great or unusual as to distinguish this Champaign County case from other aggravated robberies generally." Moreover, the codefendant was responsible for the acts of violence involved.

State v. Gary (2001), 141 Ohio App. 3d 194 -- Defendant received consecutive sentences on two counts of GSI involving different victims. While the court made findings, the defendant's prior record and multiple victims were not analytically linked to the statutory factors. The findings were "merely conclusory statements that mimicked the statute's language without analyzing whether appellant's conduct justified those conclusions." Since there was nothing the record indicating a single sentence would be disproportionate to the seriousness of his conduct, case is remanded for imposition of concurrent sentences.

State v. White (1999), 135 Ohio App. 3d 481 -- First offender got 70 years for rape convictions arising from a single incident. Affirmed. Lack of remorse manifest in statement he would "serve his sentence as a sacrifice to all those falsely accused of crimes" didn't help. For another case demonstrating indifference to what appear to be excessive sentences see State v. Long (136 Ohio App. 3d 73 (compare dissent).

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Sentence appeals by the prosecution

State v. Martin, 192 Ohio App. 3d 661, 2011-Ohio-951 – Court granted community control notwithstanding presumption in favor of incarceration. In the first appeal the court of appeals reversed based on the failure to provide necessary findings and reasoning, but did not reach the merits of a second assignment of error challenging the wisdom of the trial court’s decision. In a second appeal, the court found the consideration of the revived second assignment of error claims was barred by res judicata. This is corrected in response to the state’s motion for reconsideration, but the state’s claims are rejected. Motion for en banc reconsideration denied.

State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855 -- Findings are still required pursuant to R.C. 2929.13(D) when there is a "downward departure" from the presumption in favor of imprisonment for first and second degree felonies of for drug offenses carrying a presumption in favor of imprisonment. The same applies to grants of judicial release to such offenders pursuant to R.C. 2929.20(H).

State v. Heath, 170 Ohio App. 3d 366, 2007-Ohio-536 -- Initially the trial court failed to make findings in support of a downward departure, but this was remedied by the court of appeals ordering a limited remand. Wife hired an undercover policeman to kill her husband who may or may not have been abusive and not much of a loss. Five years of community control on plea to attempted murder and conspiracy to commit aggravated murder held to be excessively lenient. Murder for hire is rare and the court's conclusions as to protection of the public was supported by the record. But reweighing the evidence the majority finds the conclusion the offender would be adequately punished is contrary to law.

State v. Shiffler 147 Ohio App. 3d 340, 2002-Ohio-122 -- Father was convicted of three counts of rape involving his nine-year old daughter. He claimed he was "attempting to educate his daughter so that she would know whether she was being sexually assaulted by someone else in the future. Prosecutor prevails on appeal of concurrent three-year sentences.

State v. Bradley, Union App. No. 14-04-21, 2005-Ohio-675 -- Prosecutor's appeal of concurrent minimum terms for F-5's was baseless, not falling within the categories listed in R.C. 2153.08(B).

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Modification; amplification; continuing jurisdiction

State v. Carlisle, 131 Ohio St. 3d 127, 2011-Ohio-6553 – Absent statutory authority a trial court is generally not empowered to modify a criminal sentence by reconsidering its own final judgment. Previously R.C. 2929.51(A) allowed modification up until the time the defendant was delivered to the institution where the sentence was to be served, but it has been repealed. So has shock probation. The sentence was not challenged in direct appeal, thus the original sentence is res judicata. Defendant’s need for costly dialysis led to court changing sentence from prison time to community control.

State v. Howard, 190 Ohio App. 3d 734, 2010-Ohio-5283 – Upon revocation of community control defendant was sent to prison. Though the matters were not addressed at the hearing, in the entry the judge disapproved shock incarceration or intensive program imprisonment which might lead to early release. Reversed. While the court did not have to address the issue, if it did findings had to be provided. Court also erred in disapproving transitional control. That decision is to be made when the department of corrections recommends a furlough.

State v. Plunkett, 186 Ohio App. 3d 408, 2009-Ohio-5307 – Defendant received three concurrent sentences on drug charges and was released on appeal bond after serving the first 48 days. When the court of appeals affirmed his conviction that stay automatically ended, but neither the appellate court nor the trial court took any steps to have the defendant remanded to custody. After he began serving a sentence on new charges counsel filed a motion asking that execution of the prior sentences resume. The court erroneously ordered that this happen only after time had been served on the new charges. Once a defendant has commenced serving a sentence, it may not be modified or amended except as authorized by the General Assembly, and courts have not been granted such authority.

Dillon v. United States (2010), 130 S.Ct. 2683 – Changes in the federal sentencing guidelines regarding powder and crack cocaine applied retroactively. Dillon benefited from the maximum two-lever reduction but asserted Booker applied allowing the court to further reduce his sentence. The type of modification provided for is more limited than the initial sentencing decision.

Freeman v. United States (2011), 131 S.Ct. 2685 – Modification of sentences initially based on a distinction between crack and ordinary cocaine is available even when the plea bargain specified an agreed sentence.

State v. Marvin (1999), 134 Ohio App. 3d 63 -- (1) If at the time of sentencing the court fails to advise the defendant that he can be imprisoned upon violation of community control sanctions, in the process mentioning the length of such term, that defendant may not be sent to prison as the result of revocation proceedings. Also see State v. Carter (1999), 136 Ohio App. 3d 367; State v. Brown (2000), 136 Ohio App. 3d 816; State v. Virasaychak (2000), 138 Ohio App. 3d 570; State v. Bradley, 151 Ohio App. 3d 341, 2003-Ohio-216. (2) Upon revocation, any prison term imposed may not exceed the term stated at the original sentencing hearing. (3) If the court fails to make required findings in passing sentence, once the case is on appeal the court lacks jurisdiction to remedy such error by further action.

State v. Brown (2000), 136 Ohio App. 3d 816, 820 -- "While courts possess authority to correct errors in judgment entries so that the record speaks the truth, nunc pro tunc entries are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided or what the court intended to decide."

State v. Harbrecht (1999), 135 Ohio App. 3d 71 -- No error in reconvening sentencing hearing the same day, with defendant and counsel present, to amplify upon reasons for the sentence previously imposed.

State v. Rowland (2000), 138 Ohio App. 3d 473 -- Appeal reopened pursuant to App. R. 26(B) where original appellate counsel did not raise sentencing issues. Reversed for failure to set forth findings in support of maximum sentence.

State ex rel. Mayer v. Henson, 97 Ohio St. 3d 276, 2002-Ohio-6323 -- In 2001 a Common Pleas Court judge put on a nunc pro tunc entry altering the sentence he imposed in 1983 to net the defendant the amount of time he intended be served instead of the actual time to be served at the discretion of the Adult Parole Authority. Prosecutor's complaint in mandamus and prohibition was dismissed by the court of appeals. Supreme Court reverses, strongly indicating that the judge did not have jurisdiction to alter his prior order.

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The right to jury trial on facts related to sentencing

State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320 – Syllabus: (1) The jury-trial guarantee of the Sixth Amendment to the United States Constitution does not preclude states from requiring trial court judges to engage in judicial fact-finding prior to imposing consecutive sentences. (Oregon v. Ice, (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed2d 517, construed.) (2) The United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed2d 517, does not revive Ohio’s former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E. 2d 470. (3) Trial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new legislation requiring that findings be made.” Both majority and dissenting opinions address the effect of judicial severance of unconstitutional statutory language. See H.B. 86 version of the sentencing statutes for restored language.

State v. Elmore, 122 Ohio St. 3d 472, 2009-Ohio-3478 – Case disposes of post-Foster claims that defendants are entitled to minimum concurrent sentences on remand. ¶42: "We hold that resentencing pursuant to State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E. 2d 470 for offenses that occurred prior to February 27, 2006, does not violate the Sixth Amendment right to a jury trial, or the Ex Post Facto of Due Process Clauses of the United States Constitution. A trial court, upon resentencing pursuant to Foster, has discretion to impose consecutive sentences and, despite the Foster severance of statutory presumptions, is not required by the rule of lenity to impose a minimum prison term."

Oregon v. Ice (2009), 555 U.S. 160 , 129 S.Ct. 711-- State sentencing statutes requiring judicial factfinding do not run afoul of Apprendi and Blakely. Majority looks to the historic power of courts to impose consecutive sentences, and refuses to extend Apprendi etc. beyond the sentence imposed on a single count.

State v. Silsby, 119 Ohio St. 3d 370, 2008-Ohio-3834 – Syllabus: "For a criminal case to be 'pending on direct review' for purposes of State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E. 2d 470, the criminal action must have been filed in the court at the time we announced Foster and must have been awaiting an action or a decision at the time of our decision in Foster." Foster applies only to delayed appeals that were pending at the time the opinion was released.

State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶184-187 – Apprendi claim rejected as to whether judge or jury is to decide retardation in a capital case.

State ex rel. Golson v. Moore, 116 Ohio St. 3d 308, 2007-Ohio-6434 – Habeas is not a viable avenue for a Foster claim.

State v. D.H., 120 Ohio St. 3d 540, 2009-Ohio-9 – Juvenile was charged in a manner making him eligible for a blended sentence. Having availed himself of his right to a jury trial, he challenged, on Sixth Amendment grounds, the authority of the court to make further factual findings leading to the imposition of a blended sentence. At ¶61: "We hold that due process does not require a jury determination on the imposition of a serious-youth-offender dispositional sentence under R.C. 2152.13, including the determination of the stayed, adult portion of the sentence." At ¶37: "Since the adult portion of D.H.‘s sentence has not been invoked, this opinion does not address the constitutional ramifications of invoking the adult sentence under R.C. 2152.14 in light of Blakely and Foster."

Apprendi v. New Jersey (2000), 530 U.S. 466 -- Except for prior convictions, any fact which increases the penalty for a crime beyond the statutory maximum must be charged and proved beyond a reasonable doubt at trial. Also see Castillo v. United States (2000), 530 U.S. 120, 120 S.Ct. 2090. Compare Harris v. United States (2002), 122 S.Ct. 2406 concluding that increasing mandatory minimum sentences based on the manner a firearm was employed in the commission of an offense were sentencing factors within a single federal drug offense and a proper subject for judicial determination.

Ring v. Arizona (2002), 536 U.S. 584 -- Arizona's scheme whereby a jury determines guilt, and a judge determines whether to impose the death penalty, violates the Sixth Amendment right to jury trial. Apprendi v. New Jersey (2000), 530 U.S. 466, applied. Walton v. Arizona (1990), 497 U.S. 639, overruled.

Schriro v. Summerlin (2004), 124 S.Ct. 2519 -- Ring is procedural, not substantive, and does not apply retroactively.

Blakely v. Washington (2004), 124 S.Ct. 2531 -- Washington sentencing scheme permitting an increased sentence based on fact finding by the court, not the jury, violates the Sixth Amendment right to trial by jury. For a conflicting Ohio case involving sentencing of repeat violent offenders see State v. Smith, Cuyahoga App. No. 344957, 2004-Ohio-3479.

State v. Elkins, 148 Ohio App. 3d 370, 2002-Ohio-2914 -- The additional sentence which may be given major drug offender does not violate due process. Apprendi v. New Jersey (2000), 530 U.S. 466 distinguished on the basis that major drug offender status rests on the jury's finding the defendant possessed a quantity equaling or exceeding 100 time bulk. Though R.C. 2941.1410(B) leaves the determination of major drug offender status to the court, R.C. 2925.11(C)(1)(e) makes such status automatic based on quantity. The latter is deemed controlling because it is a specific provision with an effective date after that of the general provision.

United States v. Booker, (2005), 125 S.Ct. 738 -- The federal sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment. A majority of justices make the guidelines advisory only by severing provisions making them mandatory and governing appellate review.

California v. Cunningham (2007), 127 S.Ct. 856 -- California's determinate sentencing law violates the Sixth Amendment by permitting an elevated sentence through judicial factfinding on aggravating factors. Among a triad of terms, the middle term must be imposed unless aggravating or mitigating factors justify a reduced or greater term. That middle term is the statutory maximum for Sixth Amendment purposes. The court rejects the contention that this factfinding is the equivalent of the traditional deliberative process leading to the selection of a specific term within a range. Nor can the California law be construed as an advisory scheme such as the federal sentencing guidelines were converted to in Booker.

Washington v. Recuenco (2006), 126 S.Ct. 2546 -- Failure to submit a sentencing factor to the jury is not structural error and is subject to harmless error analysis. An analogy is drawn to Neder v. United States  (1999), 527 U.S. 1, where harmless error analysis was held applicable to the failure to instruct on a material element in a fraud case.

State ex rel. Mason v. Griffin, 104 Ohio St. 3d 279, 2004-Ohio-6384 -- Writ of prohibition issued to prevent common pleas court judge empaneling a jury to determine facts related to imposition of an additional term as a major drug offender. The Ohio Constitution does not confer jurisdiction on the courts of common pleas. The legislature has not authorized the use of a jury in determining sentencing issues. If the judge sees a Blakely problem, the remedy is to hold portions of the sentencing statutes unconstitutional and sentence under valid portions. Court expresses not opinion on the applicability of Blakely to the sentencing of major drug offenders.

State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856 -- Syllabus: "(1) Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial factfinding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2532, 159 L.Ed.2d 403, followed.) (2) R.C. 2929.14(B) and (C) are capable of being severed. After the severance, judicial factfinding is not required before a prison term can be imposed within the basic prison ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.) (3) Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before imposition of consecutive sentences, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2532, 159 L.Ed.2d 403, followed.) (4) R.C. 2929.14(E)(4) and 2929.41(A) are capable of being severed. After the severance, judicial factfinding is not required before imposition of consecutive prison terms. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.) (5) Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial factfinding before repeat violent offender and major drug offender penalty enhancements are imposed, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2532, 159 L.Ed.2d 403, followed.) (6) R.C. 2929.14(D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial factfinding is not required before imposition of additional penalties for repeat violent offenders and major drug offender specifications. (United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, followed.) (7) Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.

State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642 -- Failure to object to a sentence as violating Blakely v. Washington forfeits that issue on appeal. Blakely error is not structural error. Opinion distinguishes forfeiture of issues from waiver and void sentences from those that are voidable.

State v. Hardie, 171 Ohio App. 3d 429, 2007-Ohio-2755 -- Defendant received LWOP for forcible kiddie rape following a guilty plea. The plea encompassed admissions to the facts leading to the enhanced sentence. Blakely and Foster do not apply.

State v. Adkins, Greene App. No. 2002 CA 113, 2003-Ohio-1571 -- Apprendi v. New Jersey, (1000), 530 U.S. 466, does not require a jury finding on the existence of a fact permitting a sentence longer than the statutory minimum or at the statutory maximum. Also see State v. Murphy, Lake App. No. 2003-L-049, 2005-Ohio-412 (with dissent).

State v. Abdul-Mumim, Franklin App. Nos. 04AP-485 and 486, 2005-Ohio-522 -- Court finds no Blakely problem with respect to findings supporting more than a minimum sentence for a first offender and consecutive sentences. The minimum is a "suggestion of appropriateness" or "starting point," not an upper limit. Accord: State v. Morales, Lake App. No. 2003-L-025, 2004-Ohio-7239.

State v. Rowles, Summit App. No. 22007, 2005-Ohio-14 -- Blakely doesn't apply as Ohio has established an indeterminate sentencing scheme. Also see State v. Wilson, Washington App. No. 04CA18, 2005-Ohio-830, ¶49; State v. Jenkins, Summit App. No. 22008, 2005-Ohio-11.

State v. Montgomery, Hamilton App. No. C-040190, 2005-Ohio-1018 -- Recognizing that its decision is in conflict with the Tenth District, the First District finds a Sixth Amendment violation in the imposition of more than the minimum sentence for a first offender. No violation is found with respect to the imposition of consecutive sentences. Remedy is modification to minimum consecutive sentences.

State v. Taylor, 158 Ohio App. 3d 597, 2004-Ohio-5939 -- Apprendi permits consideration of a prior conviction referred to in a PSI for purposes of departure from the minimum term. Apprendi and Blakely apply to individual sentences but not consecutive sentences. Citing State v. Carter, Lucas App. No. L-00-1082, 2002-Ohio-3433; United States v. Wingo (6th Cir. 2003), 76 Fed. Appx. 30, 35-36; United States v. Sauceda (6th Cir. 2002), 46 Fed. Appx. 322, 323.

State v. Sanders, Lake App. No. 2003-L-144, 2004-Ohio-5937 -- In a case where the defendant received more than the minimum sentence and the PSI indicated a prior conviction, the court concludes that while Blakely and Apprendi potentially implicate the validity of some of the court's findings, Apprendi makes exception for the fact of a prior conviction. Also see State v. Moore, Allen App. No. 1-04-09, 2005-Ohio-676; State v. Sherman, Summit App. No. 22227, 2005-Ohio-720.

State v. Washatka, Cuyahoga App. No. 83679, 2004-Ohio-5384, ¶11 --"Under Blakely, the maximum sentence that the law allows the court to impose on offenders who have not served prison time is the shortest term...In order to deviate from the shortest term, the court would have to make findings of fact that were neither determined by a jury nor agreed to by the defendant, namely that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protest the public from future crimes by the offender or others..." Also see State v. Mason, Cuyahoga App. No. 84061, 2004-Ohio-5388.

State v. Moore, Cuyahoga App. No. 83653, 2004-Ohio-5383 -- Applying Blakely, imposition of consecutive sentences requires fact-finding by a jury or the waiver of the constitutional right to have facts determined by a jury.

State v. Bruce, Hamilton App. No. C-040421, 2005-Ohio-373 -- Applying Blakely, the statutory maximum is the number of years a judge may impose without additional findings. Thus imposition of the stated maximum without the right to have the applicable factors decided by a jury violates the Sixth Amendment. The court adopts the Booker position that the issue is viable in all cases on direct review that have not become final.

State v. Scheer, 158 Ohio App. 3d 432, 2004-Ohio-4792, ¶13-16 -- Regarding Blakely and a court's reliance on unproven facts in sentencing, the court finds Ohio's sentencing scheme does not mirror Washington's. Blakely is said not to invalidate Williams v. New York (1949), 337 U.S. 241 which permits judges to rely on information from witnesses not subject to cross-examination. Also see State v. Wheeler, Washington App. No. 04CA1, 2004-Ohio-6598; State v. Hardie, Washington App. No. 04CA24, 2004-Ohio-7277; State v. Hardie, Washington App. No. 04CA24, 2004-Ohio-7278.

State v. Trubee, Marion App. No. 9-03-65, 2005-Ohio-552 -- Court looks to the interplay between O'Connor's dissenting opinion in Apprendi and a footnote in the majority opinion in concluding imposing more than the minimum is a proper matter of judicial discretion within the range of sentences supported by the jury verdict. Furthermore, Ohio's scheme does not make imposition of a greater sentence mandatory. Also, reliance on past record as the basis for an increased sentence falls within the Apprendi exception.

State v. Henry, Delaware App. No. 2004-CAA-06-047, 2004-Ohio-6711 -- The court finds no Sixth Amendment violation in consideration of R.C. 2929.11 and 2929.12 factors in imposing a maximum term for an F-3 on which there is no presumption either for or against imprisonment. Those statutes merely codify factors traditionally considered by courts in choosing a sentence within the prescribed range.

State v. O'Conner, Delaware App. No. 04CAA04-028, 2004-Ohio-6752 -- The court finds no Sixth Amendment violation in imposing prison on fourth and fifth degree felonies. Opinion is not responsive to the assignment of error and primarily relies on the court's prior decision in State v. Iddings, Delaware App. No. 2004CAA06043, 2004-Ohio-7312.

State v. Walizer, Wayne App. No. 04CA0029, 2004-Ohio-7187 -- Assuming arguendo that Blakely applies, the defendant admitted facts supporting the sentence.

State v. Schaub, Lake App. No. 2003-L-091, 2005-Ohio-703, ¶60 -- "The instant case is distinguishable from Blakely because appellant tendered an unchallenged confession in addition to a voluntary plea...Barring further input from the Ohio Supreme Court as to when additional evidence may be considered, we conclude the trial court may use the facts admitted in an uncontested confession, in conjunction with a voluntary plea, to determine whether the shortest prison term would demean the seriousness of the offender's conduct or would not adequately protect the public from future crime." Apparently the confession was a written confession to the police offered as an exhibit at the sex offender classification hearing that preceded sentencing. See dissent. Also see State v. Curd, 11th Dist. No. 2003-L-030, 2004-Ohio-7222.

State v. Barnette, Mahoning App. No. 02 CA 65, 2004-Ohio-7211 -- Failure to raise Sixth Amendment claims in the trial court amounts to waiver. Also see State v. Bernhard, Greene App. No. 2004 CA 66, 2005-Ohio-1052; State v. Austin, Montgomery App. No. 20445, 2005-Ohio-1035. Court also finds no constitutional violation with regard to imposition of more than minimum, maximum and consecutive sentences. See dissent.

Shepard v. United States (2005), 123 S.Ct. 1254 -- In a federal prosecution the issue arose whether the court could look beyond statutory element, charging documents and jury instructions to determine whether an earlier conviction was for "generic burglary." The court agreed with the trial judge that police reports and complaint applications were beyond the scope of review. Four justices also saw an Apprendi violation.

State v. Gann, Butler App. No. CA2004-01-028, 2005-Ohio-678 -- Blakely does not apply to consecutive sentences.

State v. Latham, Lucas App. No. L-03-1188, 2005-Ohio-321 -- App. R. 26(A) motion for reconsideration granted. Anders brief was filed, but case presents a Blakely claim. Issue at this stage is whether proposed assignment of error is frivolous, not the merits.

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Misdemeanor sentence appeals

State v. Rutherford, Champaign App. No. 2003 CA 14, 2004-Ohio-2429 -- Court erred by imposing maximum fines and maximum consecutive sentences based on its assessment of the defendant's credibility. Court failed to consider factors enumerated in R.C. 2929.22(A).

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Corrections; Resentencing

State v. Arnold, 189 Ohio App. 3d 238, 2009-Ohio-3636 – A court’s jurisdiction to resentence a defendant, here pursuant to R.C. 2929.191, ends with completion of the journalized sentence, not release from prison upon completion of multiple sentences. OAC provisions control the Department of Corrections, not courts. Remanded for determination which of two consecutive sentences was to be served first. Even though the defendant faced a single term of postrelease control, the order would be of consequence in the event of clemency or subsequent successful litigation.

State v. Godfrey, 183 Ohio App. 3d 344, 2009-Ohio-3726 – Defendant was sentenced in 1997, with a correction by entry in 1998 following limited relief in the Court of Appeals. When he went back to court in 2008, apparently to have postrelease control added to his sentence the judge said he felt constrained to reimposes the original 29-year sentence. Reversed. Judge was required to consider the statutory factors guiding sentencing. Since the new sentencing hearing will be de novo, Colon claims are premature. Court suggests the defendant revisit his merger claims.

State v. Riley, 184 Ohio App. 3d 211, 2009-Ohio-3227 – When the court conducts a de novo resentencing hearing it must include allocution, advise on postrelease control, and advice on appellate rights.

State v. Roberts, 119 Ohio St. 3d 294, 2008-Ohio-3835 – Syllabus: "When a defendant‘s sentence is stayed on appeal, but the defendant is released from prison under the assumption that the sentence has been served, the defendant has no expectation of finality in that sentence for purposes of the Double Jeopardy Clause." Blakely claim netted defendant a reduced sentence from the Court of Appeals but ultimately the Supreme Court‘s decision in Foster permitted a return to the original sentence. Meanwhile the defendant had completed the reduced term. United States v. DiFrancesco (1980), 449 U.S. 117, followed.

State v. Bradley, 184 Ohio App. 3d 443, 2009-Ohio-5299 – At resentencing following the third appeal in this case, the judge imposed a greater aggregate sentence. The presumption of vindictiveness was not overcome by the judge’s reference to calls made to the defendant’s son soliciting perjury that had now become the subject of a further conviction, as these calls had been acknowledged at the time of trial. Nor was the court’s claim that the defendant “still” had no genuine remorse for his conduct, as it was at odds with the judge’s prior statements. Rather than remanding for resentencing, the court of appeals imposes sentence, and remands for implementation.

State v. Howard, 174 Ohio App. 3d 562, 2007-Ohio-4334 – Defendant received a greater sentence when resentenced following a Foster reversal. Because a different judge presided, the presumption of vindictiveness does not apply.

Ohio Div. of Wildlife v. Kendrick, 180 Ohio App. 3d 662, 2009-Ohio-380 – When the defendant was sentenced in 1993 for 35 hunting-related offenses the court permanently revoked his right to obtain a hunting or fishing license, though at the time such penalty was not provided by statute. Fifteen years later he applied to have that portion of his sentence set aside. Ordinarily such a defect would not render the judgment voidable but not void, but applying State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the court is compelled to find the 1993 sentence is void.

State v. Sellers, 173 Ohio App. 3d 60, 2007-Ohio-4681 -- Defendant initially was sentenced to four years for aggravated assault, then seven years for involuntary manslaughter after the victim died after eight years in a persistent vegetative state. Defendant successfully appealed the denial of funds for a defense expert, then was sentenced to eight years after being found guilty by a jury. Sentence modified back to seven years because the record did not offer affirmative reasons supporting the increased sentence. Earlier the court had rejected claims that judicial bias amounted to structural error and that the death was the result of intervening causes. A footnote states the opinion does not affirm the trial court‘s ruling that collateral estoppel allowed the jury to be informed the state had already proven most of the elements of involuntary manslaughter in the initial aggravated assault trial.

State v. Johnson, 174 Ohio App. 3d 130, 2007-Ohio-6512 -- Defendant won merger and Foster claims on appeal but on resentencing the court increased the sentence on one count, netting the same aggregate sentence. The court treats this as an increase and applies the North Carolina v. Pearce presumption of vindictiveness, but concludes the defendant was not punished for exercising his right to appeal and that the length of the sentence is not an abuse of discretion.

State v. Thrasher, 178 Ohio App. 3d 587, 2008-Ohio-5182 -- Following a successful Foster claim the defendant received a greater term upon resentencing. Presumption of vindictiveness not overcome. The judge reviewed the same PSI offered at the original hearing. Claim he had been constrained by former findings requirements rejected as he had previously made findings which would have supported maximum sentences. Appellate court reimposes the original sentences and remands for the trial court to provide notice to the Department of Rehabilitation and Correction.

State v. Johnson, 179 Ohio App. 3d 151, 2008-Ohio-5769 – Defendant was back in court following a State v. Foster remand and was unhappy trial counsel, who he believed to have been ineffective, was there to represent him. The court blew off his complaints, stating "whether you have this man or any other attorney isn‘t going to have anything to do with the resentencing," and proceeded to resentence. Reversed. ¶46: "We find this reasoning baffling. If the sentence is mandatory, it presumably does not matter what attorney stands beside the defendant, Elmer Fudd or Clarence Darrow. When the court is about to exercise discretion, that is when the assistance of counsel is arguably the most crucial."

State v. James, 179 Ohio App. 3d 633, 2008-Ohio-6139 – When conviction was affirmed appeal bond was revoked. Sentence included both an 11-month prison sentence and community control. Forty-four months went by before the court ordered execution of sentence. During that time the defendant served terms on other convictions which were ordered served concurrently. While speedy trial rights do not apply in these circumstances, and delays do not generally render sentences unenforceable, the delay here constituted a denial of due process. Prison term deleted from sentence.

State v. Bruce, 170 Ohio App. 3d 92, 2007-Ohio-175 -- Retroactive application of State v. Foster-excised portions of the felony sentencing statutes does not violate due process in a manner analogous to the ban on ex post facto laws.

State v. Akers, Ashland App. No. 04COA56, 2005-Ohio-969 -- Following a successful sentencing appeal, the defendant may not be resentenced in absentia. Also see State v. Waffle, 163 Ohio App. 3d 645, 2005-Ohio-5378.

State v. Taogaga, 165 Ohio App. 3d 775, 2006-Ohio-692 -- When a sentence has been vacated in its entirety, claims of merger are not barred by res judicata because they were not advanced in a previous appeal.

State v. Aliane, Franklin App. Nos. 02AP-948 and 986 -- A resentencing hearing must follow the requisites of an initial sentencing hearing, including allocution, findings and advisements. Sentence reflected by judgment entry must be as pronounced in court. Error to add restitution order. Also see State v. Culver, 160 Ohio App. 3d 172, 2005-Ohio-1359.

State v. Singh, 157 Ohio App. 3d 603, 2004-Ohio-3213 -- Rare instance of sentence being changed from eight months of imprisonment to five years of community control with six months on the shelf in the event of a violation. Physician was convicted of possession of Oxycontin after two tables were found in his possession following an auto accident. Trial court's findings were muddled.

State v. Clark, Hamilton App. No. C-020550, 2003-Ohio-2669 -- Court failed to adequately inquire into cause of dissatisfaction when the defendant asked for new counsel at a resentencing hearing. ¶ 6: "We first stress that a resentencing hearing is just as important and pivotal an aspect of the criminal proceedings as the original sentencing hearing. The hearing is not 'only a resentence.' It is an opportunity for the trial court to correct its prior sentencing error and to sentence a defendant as mandated by the legislature, with all his constitutional and statutory rights intact. It is not to be treated as a pro forma rubber stamp of the original sentence. It is a process by which the defendant is to be sentences anew, with the trial court following the instructions provided by a reviewing court."

Sate v. Garrie, Washington App. No. 03CA49, 2004-Ohio-1224 -- Where the trial court had failed to make findings, appellate court draws a distinction between cases where the sentence has been vacated and where there has merely been reversal and remand. In State v. Bolton (2001), 143 Ohio App. 3d 185 and State v. Steimle, Cuyahoga App. Nos. 79154 and 79155, 2002-Ohio-2238 vacated the sentence and ordered resentencing, which require a full hearing. Reversal and remand requires less. Besides, in the court's view the trial court did conduct a full hearing.

State v. Maxwell, Franklin App. No. 02AP-1271, 2004-Ohio-5660, ¶13- 16 -- A reviewing court's remand effectuates a revival of a trial court's authority to conduct further proceedings in a case. If this includes resentencing, the court may impose a lesser term than previously imposed, provided the term remains within statutory limits.

State v. Jones 93 Ohio St. 3d 391, 397-400, 2001-Ohio-1341 -- Where the trial court failed to make findings in support of more than minimum sentence for a first offender, and consecutive sentences, unless the sentence is clearly unsupported by the record the appellate court should remand the case to the trial court for clarification rather than impose a modified sentence, though it is authorized to do so by R.C. 2953.08(G).

State v. Garretson (2000), 140 Ohio App. 3d 554 -- Defendant was mistakenly let out of prison early by the Department of Corrections. Prosecutor filed a motion in the trial court to have him taken back to serve the rest of his time. Defendant showed up as a spectator at the hearing, and was taken back to prison when the court granted the motion. Since the original sentencing order was valid, "when Garretson was delivered to the permanent detention facility, the authority of the judicial branch over Garretson's sentence ended. Thereafter the trial court had no authority in the motion proceeding before it to order that Garretson be returned to prison to serve an additional eight months."

Euclid v. Brackis (1999), 135 Ohio App. 3d 729 -- Twenty-one month delay in resentencing following reversal constitutes a Sixth Amendment speedy trial violation.

State v. Lilly (2000), 139 Ohio App. 3d 560 -- Court of Appeals decision was reversed by the Supreme Court and remanded to the trial court which imposed a lesser sentence. Reversed.

State v. Randlett, Franklin App. Nos. 03AP-385, 386, 387 and 388, 2003-Ohio-6934 -- To remedy the variance between sentences as pronounced in court and as set forth in the judgment entries, the court of appeals modifies the judgment in accordance with the sentence pronounced in court.

State v. Dickens (1987), 41 Ohio App. 3d 354 -- A sentence outside statutory limits is void and may be corrected by the trial court, even if it means the defendant, who has been released on parole, must be returned to custody. Court had apparently inadvertently imposed a sentence below the required period of actual incarceration. (Question whether double jeopardy dictates a different result where state fails to appeal original sentence.)

State v. McCollough (1991), 78 Ohio App. 3d 42 -- Court mistakenly sentenced defendant to concurrent ten year terms under a revised sentencing statute when it should have applied the sentencing statute in force at the time of the offense. Because the initial sentence was void, the court did not violate the Double Jeopardy Clause when resentencing defendant to consecutive 5-25 year terms, even though maximum was increased from 25 to 50 years.

State v. Sawicki (1998), 128 Ohio App. 3d 585 -- Prison escapee pleaded to F-3 escape and received a one-year sentence. Prison wrote the court pointing out he had been serving time for an F-1 and should have received more time for an F-2 violation of the escape statute. Plea was vacated, the indictment amended, and ultimately a longer sentence was imposed. Held to be double jeopardy since the error lay in the nature of the offense charged and not the sentencing.

State v. Jackson (1985), 30 Ohio App. 3d 149 -- Headnote 1: "Under North Carolina v. Pearce (1969), 395 U.S. 711, 726, upon conviction after a remand, an increased sentence must be based upon 'conduct on the part of the defendant occurring after the time of the original sentencing proceeding,' not the offense itself, or the consequences thereof." Also see Wasman v. United States (1984), 468 U.S. 424; Texas v. McCullough (1986), 475 U.S. 134.

State v. Peck (1985), 26 Ohio App. 3d 133 -- Due process violation found where: (1) defendant won on appeal, (2) by the time he came up for resentencing he had been released on shock parole, and (3) resentencing resulted in return to prison instead of continuation of parole status.

Lodi v. McMasters (1986), 31 Ohio App. 3d 275 -- While there is a presumption of vindictiveness when a second trial before the same judge results in a higher sentence, when the retrial is before a different judge the defendant must affirmatively prove vindictiveness.

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Other issues

State v. Cunigan, 195 Ohio App. 3d 162, 2011-Ohio-4010 – At a resentencing hearing the court referred to institutional infraction reports. The appellate court characterizes this as invited error, as the defendant had asserted he had a good prison record.

State v. Kase, 187 Ohio App. 3d 590, 2010-Ohio-2688 – After pleading to a life-rape charge for which the punishment was either 15-life or life without parole, the defendant made a rude comment about the victim and was sentenced to “life imprisonment.” Remanded as it is unclear which sentence this referred to. Advice in court as to Tier III status at the time the plea was entered was OK, but error not to include tier status in judgment entry.

State ex rel. Culgan v. Medina County Court of Common Pleas, 119 Ohio St. 3d 535, 2008-Ohio-4609 – Judgment entry did not set forth the plea or the verdict or the court findings on which convictions were based as required by Crim. R. 32(C). Trial court denied motion for resentencing. Court of appeals denied writs of mandamus and procedendo. Reversed. Writs issued.

State v. Perz, 173 Ohio App. 3d 99, 2007-Ohio-3962 -- Official pled guilty to knowingly filing a false financial statement and agreed to pay a $1,000 fine. She was also ordered to pay a pro rata share of the expenses of the Ohio Ethics Commission in investigating the matter. Construing the misdemeanor sentencing statutes, this is held to be an abuse of discretion. However, the court can order payment of the costs of prosecution. Ethics Commission costs might have been addressed as restitution, but the trial court did not use the word restitution.

State v. Roberts, 180 Ohio App. 3d 216, 2008-Ohio-6827 – Visiting judge sentenced the defendant to five years for trafficking in heroin. Entry was silent about placement in a boot camp program. ODRC sent the required veto letter to the judge who had taken the seat of the visiting judge upon retirement, not to the judge originally assigned the case. By the time the defendant lost his first appeal he had completed boot camp and had been released. Nonetheless, the originally assigned judge sent him back to prison to serve the balance of the five year term. This is OK with the majority, though the fault lay with ODRC and not the defendant. Dissent faults the originally assigned judge for treating placement in boot camp a personal insult in need of redress. Roberts had previously been unsuccessful seeking relief through a prohibition action. State ex rel. Roberts v. Winkler, 176 Ohio App. 3d 685, 2008-Ohio-2843. Reversed: State v. Roberts, 123 Ohio St. 3d 465, 2009-Ohio-5800. In a two-page opinion the Supreme Court finds "the state has failed to prove that he sentencing court never received notice of the intended placement of appellant in an intensive prison program."

State v. Martin (2000), 140 Ohio App. 3d 326 -- (1) At the plea hearing the defendant was advised he would not be eligible for judicial release until he had served six months, but he was later given a seven year, eleven month sentence which required waiting five years. The court was not limited to imposing a sentence permitting judicial release after six months. Avenue for seeking relief is a motion to withdraw the guilty plea. (2) Court erred by ordering payment of restitution directly to victim for loss covered by his insurance carrier, but court could order restitution to carrier.

State v. Rangel (2000), 140 Ohio App. 3d 29 -- Sentence was 180 days with 150 suspended until the defendant announced he wanted to appeal. Then the sentence was changed to 180 days and an appeal bond was set. Majority of the Hamilton County Court of Appeals cites failure of trial counsel to object and refuses to reverse as plain error. See dissent.

Rollins v. Haviland 93 Ohio St. 3d 590, 2001-Ohio-1884 -- Good time under former R.C. 2967.19 does not require release before completion of the maximum sentence. Also see State ex rel. Bealler v. Ohio Adult Parole Authority 91 Ohio St. 3d 36, 2001-Ohio-231.

State v. Brown, 152 Ohio App. 3d 8, 2003-Ohio-1218 -- Three-year delay in sentencing defendant who had been transported to Colorado on other charges was unreasonable. Rather than fully dismiss charges, conviction stands but sentence is reversed.

Ewing v. California (2003), 123 S. Ct. 1179 -- California's three strikes law does not violate the Eighth Amendment ban on cruel and unusual punishment.

State v. Harris, Cuyahoga App. No. 81677, 2003-Ohio-1003 -- Failure to advise sex offender of mandatory post-release control requires remand.

State v. Peacock, Lake App. No. 2002-L-115, 2003-Ohio-6772, ¶40-41 -- Failure to advise concerning post-release control at the time of sentencing renders a sentence void. Case remanded for resentencing with the defendant present.

State v. Kinder (2000), 140 Ohio App. 3d 235 -- Applying R.C. 1.58, the defendant was entitled to the benefit of the version of controlling statutes which went into effect shortly before the sentencing hearing, which reduced the length of the license suspension the court was permitted to impose.

Adkins v. McFaul (1996), 76 Ohio St. 3d 350 -- Inmates serving sentences in county jails are not entitled to good time credit comparable to that received under former 2967.19(A).

Bonds v. Ohio Department of Rehabilitation and Correction (1996), 116 Ohio App. 3d 144, 150 -- Good time is calculated based on the entire sentence and not the sentence less time served.

State v. Quisenberry (1994), 69 Ohio St. 3d 556 -- The sentence for failure to appear on a recognizance bond is a definite term ranging between one and five years and not an indefinite term of from one to five years.

State v. Graham (1997), 119 Ohio App. 3d 208 -- Court was without statutory authority to order defendant to reimburse the state for the cost of his incarceration in a state operated prison. Also see State v. Henson (1985), 27 Ohio App. 3d 275.

State v. Hawes (1996), 111 Ohio App. 3d 777 -- Defendant was charged with felonious assault but pled guilty to aggravated assault. He did not plead guilty to a physical harm specification. Court was without authority to impose an indeterminate sentence.

State v. Witwer (1992), 64 Ohio St. 3d 421 -- Syllabus: "A court of common pleas may impose the indefinite term of incarceration prescribed by R.C. 2929.11(B)(7) where an accused has been convicted of a fourth degree felony the commission of which caused physical harm to any person, provided the indictment which initiated the criminal proceedings contains the specification contained in R.C. 2941.143 and the accused was convicted thereon." (Real issue was whether increased penalty constituted double jeopardy.) Compare State v. Conley (1991), 77 Ohio App. 3d 489 -- Allegation of prior offense of violence plus nature of the principal offense (felonious assault) placed defendant sufficiently on notice he would receive an indefinite sentence if convicted of the lesser offense of aggravated assault. (Impliedly overruled by Witwer?)

State v. Calhoun (1981), 2 Ohio App. 3d 472 -- Sentences including terms of actual incarceration may be served concurrently.

State v. Oxenrider (1979), 60 Ohio St. 2d 60 -- Period of actual incarceration required as a part of felony drug offense sentence must be served in a state penal facility and not in a local facility as a condition of probation pursuant to R.C. 2929.51(A).

State v. Arnold (1991), 61 Ohio St. 3d 175 -- When the sentence for a drug offense requires a period of actual incarceration, this is in addition to the indefinite sentence provided for under R.C. 2929.11(B). Also see State v. Bachman (1991), 72 Ohio App. 3d 496; State v. Jarrell (May 24, 1990), Franklin Co. App. No. 90AP-220, unreported (1990 Opinions 2024); State v. Combs (1991), 73 Ohio App. 3d 823; State v. Smith (1989), 42 Ohio St. 3d 60.

Lakewood v. O'Meara (1987), 35 Ohio App. 3d 107 -- A court does not have the inherent authority to indefinitely suspend execution of sentence. Once probation period has ended, so does authority to impose original sentence.

State v. Bilder (1987), 39 Ohio App. 3d 135 -- Person convicted of public indecency and given maximum days and fine could not be further ordered to stay out of the court house and city-county building unless on official business.

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