State v. McGraw , 2012 Ohio 174 ( 2012 )

[Cite as State v. McGraw, 2012-Ohio-174.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96606
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN A. MCGRAW
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534815
BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 19, 2012
ATTORNEY FOR APPELLANT
Regis E. McGann
600 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Kristin Karkutt
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, John A. McGraw (“McGraw”), appeals his
sentence and the trial court’s judgment denying his post-sentencing motion to
withdraw his guilty plea. For the reasons that follow, we affirm.
{¶ 2} In March 2010, McGraw was indicted under a seven-count
indictment pertaining to a homicide and high speed chase that occurred
thereafter. Count 1 charged McGraw with aggravated murder (prior
calculation and design), in violation of R.C. 2903.01(A); Count 2 charged
aggravated murder (felony murder, kidnapping), in violation of R.C.
2903.01(B); and Count 3 charged aggravated murder (felony murder,
aggravated burglary), in violation of R.C. 2903.01(B). All of the aggravated
murder counts contained three death penalty specifications.
{¶ 3} Count 4 charged McGraw with kidnapping in violation of R.C.
2905.01(A)(3); Count 5 charged aggravated burglary in violation of R.C.
2911.11(A)(1); and Counts 6 and 7 charged failure to comply with order or
signal of police, in violation of R.C. 2921.331(B).
{¶ 4} The case proceeded to a capital jury trial where, on the fourth day
of jury selection, McGraw entered into a plea agreement. Pursuant to the
plea agreement, the State dismissed all of the capital specifications attendant
to Count 1, aggravated murder. McGraw pled guilty to Count 1, aggravated
murder; Count 5, aggravated burglary; and Count 7, failure to comply with
order or signal of police. The State nolled all other counts. On February 18,
2011,1 the trial court sentenced McGraw to 30 years to life on the aggravated
The statutes and applicable law cited herein are those that were in effect on March 1, 2010
1
and February 18, 2011 when McGraw committed the offenses and was sentenced. They do not
murder charge, 10 years on the aggravated burglary charge, and 5 years on
the failure to comply count, all to be served consecutively, for a total
aggregate term of 45 years to life in prison.
{¶ 5} McGraw, pro se, filed his notice of appeal on March 30, 2011.
Subsequently, on May 25, 2011, McGraw moved to withdraw his guilty plea,
which the trial court denied on June 6, 2011. No notice of appeal was taken
from the judgment entry denying McGraw’s post-conviction motion.
I.
{¶ 6} In his first assignment of error, McGraw contends that the trial
court abused its discretion when it imposed consecutive sentences without
adequate justification and that the sentence is contrary to law because the
record does not reflect that the court considered the seriousness and
recidivism factors.
{¶ 7} Appellate courts must apply a two-step approach when reviewing a
defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124, ¶ 4. “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.
reflect any modifications that may have occurred as a result of House Bill 86, effective September 20,
2011. See R.C. 1.58.
If this first prong is satisfied, the trial court’s decision shall be reviewed
under an abuse-of-discretion standard.” Id.{¶ 8} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, the Ohio Supreme Court held that 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.” Id. at ¶ 100. Indeed,
Foster severed those sections of the Revised Code that required trial courts to
make findings of fact before sentencing an offender to maximum or
consecutive sentences. Id. at paragraphs one and three of the syllabus. The
Supreme Court recently upheld Foster in State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768.
{¶ 9} McGraw does not challenge that he received a term of
imprisonment, but challenges that consecutive sentences lacked justification.
We find that McGraw’s sentence was within the statutory range for his
convictions; thus, in light of Kalish, no findings or reasons for imposing a
consecutive sentence were required.
{¶ 10} In Kalish, the Supreme Court explained that “[a]lthough Foster
eliminated mandatory judicial fact-finding for upward departures from the
minimum, it left intact R.C. 2929.11 and 2929.12. The trial court must still
consider these statutes.” Id. at ¶ 13, citing State v. Mathis, 109 Ohio St.3d
54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 11} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.” Kalish
at ¶ 17. “Instead, they serve as an overarching guide for trial judges to
consider in fashioning an appropriate sentence. In considering these statutes
in light of Foster, the trial court has full discretion to determine whether the
sentence satisfies the overriding purpose of Ohio’s sentencing structure.
Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its
discretion in considering whether its sentence complies with the purposes of
sentencing.” Id. “Therefore, assuming the trial court has complied with the
applicable rules and statutes, the exercise of its discretion in selecting a
sentence within the permissible statutory range is subject to review for abuse
of discretion pursuant to Foster.” Id.{¶ 12} In Kalish, the Supreme Court also made clear that even after
Foster, “where the trial court does not put on the record its consideration of
R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper
consideration to those statutes.” Id. at fn. 4, citing State v. Adams, 37 Ohio
St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus.
{¶ 13} R.C. 2929.11(A) provides that when a trial court sentences an
offender for a felony conviction it must be guided by the “overriding purposes
of felony sentencing.” Those purposes are “to protect the public from future
crime by the offender and others and to punish the offender.” R.C.
2929.11(B) states that a felony sentence “must be reasonably calculated to
achieve the purposes set forth under R.C. 2929.11(A), commensurate with
and not demeaning to the seriousness of the crime and its impact on the
victim, and consistent with sentences imposed for similar crimes committed
by similar offenders.” And R.C. 2929.12 sets forth factors concerning the
seriousness of the offense and recidivism factors.
{¶ 14} Although the court is no longer required to make findings on the
record to justify its sentence, the record in this case demonstrates that the
court considered the applicable factors and principles contained in R.C.
2929.11 and 2929.12, including recidivism factors and the need to punish the
offender.
{¶ 15} At sentencing, the trial court received a sentencing memoranda
from the State, heard statements from the victim’s family, and considered
mitigation arguments by McGraw’s attorney and father. Additionally, the
trial court also considered McGraw’s allocution, which included statements of
remorse, acceptance of responsibility, and an apology to the victim’s family.
{¶ 16} In sentencing McGraw, the trial judge stated that he considered
all the factors, finding that the crime was horrific, but recognizing and giving
credence to McGraw’s military service to this country. The record before this
court demonstrates that the trial court weighed all the factors; therefore,
McGraw’s sentence was not contrary to law or an abuse its discretion.
{¶ 17} Accordingly, McGraw’s first assignment of error is overruled.
II.
{¶ 18} In his second assignment of error, McGraw contends that the trial
court abused its discretion and erred when it denied his motion to withdraw
his post-sentencing plea.
{¶ 19} A party seeking to appeal must timely file a proper notice of
appeal to invest the court of appeals with jurisdiction to review a final
judgment or order of the trial court. Richards v. Indus. Comm., 163 Ohio St.
439, 127 N.E.2d 402 (1955), paragraph two of the syllabus. App.R. 3(D)
states, in relevant part, that “[t]he notice of appeal shall specify the party or
parties taking the appeal; shall designate the judgment, order or part thereof
appealed from; and shall name the court to which the appeal is taken.” If a
party seeks to include additional judgments or orders subsequently decided
by the trial court in the same proceeding, App.R. 3(F) permits the party to
amend his or her appeal to add such judgments or orders. See State v. West,
2d Dist. No. 2000CA56, 2001 WL 43110 (Jan. 19, 2001).
{¶ 20} An appellate court “is without jurisdiction to review a judgment or
order that is not designated in the appellant’s notice of appeal.” Slone v. Bd.
of Embalmers & Funeral Directors of Ohio, 123 Ohio App.3d 545, 548, 704
N.E.2d 633 (8th Dist. 1997); Schloss v. McGinness, 16 Ohio App.3d 96, 97-98,
474 N.E.2d 666 (8th Dist. 1984). This promotes the purpose of App.R. 3(D):
“to notify potential appellees of an appeal and advise them as to what orders
the appellant is appealing from.” Maunz v. Eisel, 6th Dist. No. L-02-1379,
2003-Ohio-5197, 2003 WL 22233859, ¶ 32, citing Parks v. Baltimore & Ohio
RR., 77 Ohio App.3d 426, 428, 602 N.E.2d 674 (8th Dist. 1991).
{¶ 21} In this case, McGraw moved to withdraw his guilty plea after he
filed his notice of appeal to this court. The record indicates that McGraw did
not file a new notice of appeal or seek to amend his prior notice of appeal to
include this judgment. See App.R. 3(F). Accordingly, this court lacks the
authority to address McGraw’s second assignment of error. See Regan v.
Paxton, 6th Dist. No. L-01-1205, 2002-Ohio-383, 2002 WL 126077 (concluding
that the appellate court did not have jurisdiction to hear the appeal, as the
appellant failed to file a new notice of appeal or amend his previously filed
appeal to include the subsequent judgment).
{¶ 22} Accordingly, we lack jurisdiction to consider McGraw’s second
assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR