State v. Rush , 2013 Ohio 2728 ( 2013 )

[Cite as State v. Rush, 2013-Ohio-2728.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
RANDALL D. RUSH : Case No. CT12-0038
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2012-0038
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:
For Defendant-Appellant: For Plaintiff-Appellee:
DAVID E. MORTIMER D. MICHAEL HADDOX
HOWARD ZWELLING MUSKINGUM CO. PROSECUTOR
MICHELI, BALDWIN, NORTHRUP LLP 27 N. Fifth St., 2nd Floor
3803 James Court, Suite 2 Zanesville, OH 43701
Zanesville, OH 43701
Delaney, J.
{¶1} Appellant Randall D. Rush appeals from the judgment entry of conviction
and sentence entered in the Muskingum County Court of Common Pleas on June 21,
2012. Appellee is the state of Ohio and did not file a brief.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not
necessary to our resolution of this appeal.
{¶3} Appellant was originally charged by indictment with six counts of gross
sexual imposition pursuant to R.C. 2907.05(A)(1), all felonies of the fourth degree; one
count of rape pursuant to R.C. 2907.02(A)(1)(c), a felony of the first degree; one count
of sexual battery pursuant to R.C. 2907.03(A)(2), a felony of the third degree; and one
count of child endangering pursuant to R.C. 2919.22(A), a misdemeanor of the first
degree. On May 18, 2012, appellee entered a nolle prosequi as to counts two through
nine and amended count one to attempted child endangering pursuant to R.C.
2923.02 and 2919.22(A), a felony of the fourth degree. Appellant entered a plea of no
contest to the amended charge of attempted child endangering.
{¶4} The “Plea of No Contest” form signed by appellant, his counsel, and the
prosecutor states in pertinent part:
* * *.
The defendant acknowledges that the parties have engaged in
plea negotiations and the defendant accepts and agrees to be
bound by the following agreement, which is the product of such
negotiations.
Upon a plea of “no contest” to Count One as amended, the State
agrees to make no recommendation and leave sentencing to the
discretion of the Court. The State further agrees to Nolle Counts 2
through 9 at the time of sentencing.
The defendant further acknowledges that he/she understands that
the prosecutor’s recommendation does not have to be followed by
the Court.
* * *.
{¶5} The trial court ordered a pre-sentence investigation.1
{¶6} Appellant appeared before the trial court for sentencing on June 18,
2012, and the trial court sentenced him to a prison term of 18 months. At the
sentencing hearing, the trial court stated the following:
* * * *.
THE COURT: And the state has made no recommendation when
it comes to sentencing. I’ll also note for the record I have received
the presentence investigation and I have reviewed it thoroughly.
Included in the presentence investigation is a victim impact
statement, as well as a specific letter from the victim concerning
this matter, as well as letters from many others supporting the
victim, as well as letters [defense counsel] has filed supporting
you, Mr. Rush. All of that is included in the Court’s file.
1
The pre-sentence investigation is not in the record.
I understand, Mr. Rush, that you have taken no responsibility for
any sexual misconduct by this plea, but I think it’s pretty clear that
there’s alleged sexual misconduct. Agreed, [defense counsel]?
[DEFENSE COUNSEL:] Yes, Your Honor.
THE COURT: [Prosecutor?]
[PROSECUTOR:] Yes, Your Honor.
THE COURT: That’s why we’re here. That’s why this case
started. That’s why the charges were initially filed were based
upon sex charges (sic), and that the gross sexual imposition,
Count 1, was amended to attempted child endangering, a felony of
the fourth degree. Based upon that, Mr. Rush, your sentence on
Count 1 will be 18 months in prison.
* * * *.
{¶7} Appellant now appeals from the judgment entry of his conviction and
sentence.
ASSIGNMENT OF ERROR
{¶8} Appellant raises one Assignment of Error:
{¶9} “I. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT
TO A PRISON SENTENCE, SPECIFICALLY A MAXIMUM TERM, CONTRARY TO
THE SENTENCING STATUTES.”
ANALYSIS
I.
{¶10} Appellant argues his maximum sentence for attempted child endangering
does not comply with R.C. 2929.13 and therefore he should have been sentenced to
community control or a lesser prison term instead of a maximum term of 18 months.
We agree.
{¶11} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,
the Ohio Supreme Court set forth a two-step process for examining felony sentences.
The first step is to “examine the sentencing court's compliance with all applicable rules
and statutes in imposing the sentence to determine whether the sentence is clearly
and convincingly contrary to law.” Kalish at ¶ 4. If this first step “is satisfied,” the
second step requires the trial court's decision be “reviewed under an abuse-of-
discretion standard.” Id.{¶12} Appellant was sentenced on June 18, 2012. R.C. 2929.13(B), effective
September 30, 2011, states:
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if
an offender is convicted of or pleads guilty to a felony of the fourth
or fifth degree that is not an offense of violence or that is a
qualifying assault offense, the court shall sentence the offender to
a community control sanction of at least one year's duration if all
of the following apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation
and correction pursuant to division (B)(1)(c) of this section, the
department, within the forty-five-day period specified in that
division, provided the court with the names of, contact information
for, and program details of one or more community control
sanctions of at least one year's duration that are available for
persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded
guilty to a misdemeanor offense of violence that the offender
committed within two years prior to the offense for which sentence
is being imposed.
(b) The court has discretion to impose a prison term upon an
offender who is convicted of or pleads guilty to a felony of the
fourth or fifth degree that is not an offense of violence or that is a
qualifying assault offense if any of the following apply:
(i) The offender committed the offense while having a firearm on
or about the offender's person or under the offender's control.
(ii) If the offense is a qualifying assault offense, the offender
caused serious physical harm to another person while committing
the offense, and, if the offense is not a qualifying assault offense,
the offender caused physical harm to another person while
committing the offense.
(iii) The offender violated a term of the conditions of bond as set
by the court.
(iv) The court made a request of the department of rehabilitation
and correction pursuant to division (B)(1)(c) of this section, and
the department, within the forty-five-day period specified in that
division, did not provide the court with the name of, contact
information for, and program details of any community control
sanction of at least one year's duration that is available for
persons sentenced by the court.
(v) The offense is a sex offense that is a fourth or fifth degree
felony violation of any provision of Chapter 2907. of the Revised
Code.
(vi) In committing the offense, the offender attempted to cause or
made an actual threat of physical harm to a person with a deadly
weapon.
(vii) In committing the offense, the offender attempted to cause or
made an actual threat of physical harm to a person, and the
offender previously was convicted of an offense that caused
physical harm to a person.
(viii) The offender held a public office or position of trust, and the
offense related to that office or position; the offender's position
obliged the offender to prevent the offense or to bring those
committing it to justice; or the offender's professional reputation or
position facilitated the offense or was likely to influence the future
conduct of others.
(ix) The offender committed the offense for hire or as part of an
organized criminal activity.
(x) The offender at the time of the offense was serving, or the
offender previously had served, a prison term.
(xi) The offender committed the offense while under a community
control sanction, while on probation, or while released from
custody on a bond or personal recognizance.
{¶13} We have closely examined the record of this case. The trial court’s
sentencing decision was due to the fact that the resulting attempted child endangering
conviction was reduced from gross sexual imposition, and it is true that a sentencing
court may consider charges that have been dismissed or reduced pursuant to a plea
agreement. State v. Parsons, supra, 2013–Ohio–1281, ¶ 18, citing State v. Starkey,
7th Dist. No. 06MA110, 2007–Ohio–6702, ¶ 2; State v. Cooey, 46 Ohio St.3d 20, 35,
544 N.E.2d 895 (1989). “The fact that the charges were dramatically reduced also is a
factor in support of the court's decision to impose the maximum sentence.” Id.{¶14} Nevertheless, we are constrained by the fact that the charge was
reduced to attempted child endangering, a violation of R.C. 2919.22(A) and R.C.
2923.02, which is not an offense of violence. We are also constrained by the record of
this case, which we have examined for factors pursuant to R.C. 2929.13(B)(1)(a) and
find the only sentence available to the trial court was community control. And again,
we note appellee did not file a brief in this case which might have given us the benefit
of an argument on behalf of the victim of this offense. We note appellant
acknowledges the victim of the charged offenses, and the resulting reduced offense of
attempted child endangering, is appellant’s stepdaughter. Absent the pre-sentence
investigation, we are unable to find any basis for a sentence other than community
control based upon R.C. 2929.13(B).
{¶15} We find that pursuant to R.C. 2929.13(B), in light of appellant’s
conviction upon one count of a non-violent felony of the fourth degree, the trial court
was required to sentence him to community control. See, State v. Henson, 5th Dist.
No. 11 CAA 11 0112, 2012-Ohio-2894. The 18-month sentence, therefore, is clearly
and convincingly contrary to law.
CONCLUSION
{¶16} Appellant’s sole assignment of error is sustained and the judgment of the
Muskingum County Court of Common Pleas is reversed. This matter is remanded to
the trial court for further proceedings consistent with this opinion.
By: Delaney, J.
Hoffman, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
PAD:kgb
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff-Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. CT12-0038
RANDALL D. RUSH :
:
Defendant-Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Muskingum County Court of Common Pleas is reversed and this matter is remanded
to the trial court for further proceedings consistent with this opinion. Costs assessed
to Appellee.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE