State v. Rardain ( 2012 )

[Cite as State v. Rardain, 2012-Ohio-2670.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2012-CA-0024
ROBERT W. RARDAIN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
2008CR00770
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT ROBERT W. RARDAIN
Licking County Prosecuting Attorney Hocking Correctional Facility
20 South Second Street Box 59
Newark, OH 43055 16759 Snake Hollow Road
Nelsonville, OH 45764-0059
[Cite as State v. Rardain, 2012-Ohio-2670.]
Gwin, P.J.
{¶1} Defendant-appellant Robert W. Rardain appeals a judgment of the Court of
Common Pleas of Licking County, Ohio, which overruled his motion to terminate his
allegedly void or voidable judgment and sentence. Appellant assigns a single error to
the trial court:
{¶2} “I. THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES
UPON THE APPELLANT IS CLEARLY AND CONVINCINGLY CONTRARY TO LAW,
AND THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE
SENTENCES. VIOLATING THE APPELLANT’S FOURTEENTH AMENDMENT OF
THE UNITED STATES CONSTITUION.(SIC)”
{¶3} The record indicates appellant was sentenced in June 2009 after he
changed his plea to guilty of three counts of rape, six counts of gross sexual imposition
and one count of importuning. There is no transcript of the sentencing hearing, but the
court stated in its written judgment entry it had considered the record, oral statements,
the principles and purposes of sentencing, and the balance of the seriousness and
recidivism factors. After consideration of the statutory factors, the court found that
prison is consistent with purposes of the Revised Code and appellant was not amenable
to any available community control sanction. The court sentenced appellant to an
aggregate of fourteen years. The court also informed appellant he was subject to post-
release control and would be classified as a Tier III sexual offender.
{¶4} On January 10, 2012, appellant filed his motion to terminate his sentence,
arguing the trial court should have made his sentences concurrent rather than running
some of them consecutively.
Licking County, Case No. 2012-CA-0024 3
{¶5} Appellant argues he has an independently created liberty interest to be
sentenced to concurrent prison terms on all charges pursuant to R.C. 5145.01. He
asserts his equal protection rights were violated when the sentencing court imposed
consecutive prison terms. Appellant asserts the court records must demonstrate why
R.C. 5145.01 regarding duration of sentences was inapplicable, and he asserts
consecutive terms are contrary to law.
{¶6} The State suggests the matter is res judicata because appellant did not
raise these issues in a timely direct appeal. Appellant responds he was unaware of his
appellate rights and never pursued a direct appeal.
{¶7} We find we need not address the procedural issues here because
appellant cannot prevail on the merits. In State v. Smith, Fifth District Nos. 08CA42 and
08CA43, 2009-Ohio-1684, this court rejected the argument R.C. 5145.01 prevents trial
courts from imposing consecutive sentences. We cited State v. Kalish, 120 Ohio St. 3d
23, 2008-Ohio-4912, 896 N.E.2d 124 as holding that trial courts have full discretion to
impose a prison sentence within the statutory range and are not required to make
findings or state reasons for imposing maximum, consecutive, or more than the
minimum sentences. Smith, at paragraph 57.
{¶8} Appellant also argues his plea agreement is not enforceable because his
sentence is contrary to R.C. 5145.01. Appellant’s written plea of guilty states no
promises have been made to him as part of the plea agreement except that he would
receive an aggregate sentence of fourteen years. Because we find the sentence was
not contrary to law, we find no merit herein.
Licking County, Case No. 2012-CA-0024 4
{¶9} Appellant has not moved the court to allow him to withdraw his guilty plea
and has not argued his plea was not voluntary.
{¶10} We find no constitutional violation or legal error herein.
{¶11} The assignment of error is overruled.
{¶12} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0604
[Cite as State v. Rardain, 2012-Ohio-2670.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ROBERT W. RARDAIN :
:
:
Defendant-Appellant : CASE NO. 2012-CA-0024
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER