State v. Umphlettee , 2011 Ohio 1322 ( 2011 )

[Cite as State v. Umphlettee, 2011-Ohio-1322.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
RYAN UMPHLETTEE : Case No. 10-CA-89
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 09CR56
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 18, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ ROBERT D. ESSEX
20 South Second Street 1654 East Broad Street
4th Floor Suite 302
Newark, OH 43055 Columbus, OH 43203
Licking County, Case No. 10-CA-89 2
Farmer, J.
{¶1} On February 6, 2009, the Licking County Grand Jury indicted appellant,
Ryan Umphlettee, on three counts of trafficking in marijuana in violation of R.C.
2925.03, and one count of possession of marijuana with forfeiture specifications in
violation of R.C. 2925.11. On September 4, 2009, appellant pled guilty as charged. By
judgment entry filed September 8, 2009, the trial court sentenced appellant to three
years of community control.
{¶2} On January 21, 2010, a motion was filed to revoke appellant's community
control. By judgment entry filed February 16, 2010, the trial court extended appellant's
community control by two years.
{¶3} On June 10, 2010, a second motion was filed to revoke appellant's
community control. A hearing was held on July 12, 2010. By judgment entry filed same
date, the trial court revoked appellant's community control, and sentenced appellant to
an aggregate term of three and one-half years in prison as set forth in the original
sentencing entry.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "IN LIGHT OF OREGON V. ICE, THE TRIAL COURT ERRED IN FAILING
TO MAKE THE REQUIRED FINDINGS UNDER O.R.C. 2929.14(E)(4) TO JUSTIFY
CONSECUTIVE SENTENCES."
Licking County, Case No. 10-CA-89 3
I
{¶6} Appellant claims the imposition of consecutive sentences was contrary to
law. We disagree.
{¶7} Appellant argues the trial court "was still required to make findings under
2929.14(E)(4) prior to the imposition of consecutive sentences in this matter."
Appellant's Brief at 8. In support of his arguments, appellant cites the case of Oregon v.
Ice (2009), 555 U.S. 160, wherein the United States Supreme Court "upheld the
constitutional validity of an Oregon statute similar to Ohio's pre-Foster sentencing
statutes that requires Oregon's trial judges to make factual findings prior to imposing
consecutive sentences." State v. Hodge, ___ Ohio St.3d ___, 2010-Ohio-6320, ¶3.
{¶8} In the recently decided Hodge case, the Supreme Court of Ohio
thoroughly analyzed the Ice decision vis-à-vis its decision in State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, and concluded the following at ¶39-40:
{¶9} "For all the foregoing reasons, we hold that the decision of the United
States Supreme Court in Oregon v. Ice 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. Because the statutory provisions are not revived,
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.
{¶10} "The trial court in this case did not err in imposing consecutive sentences
without applying R.C. 2929.14(E)(4) and 2929.41(A), and defendants such as Hodge
who were sentenced without application of the statutes are not entitled to resentencing."
Licking County, Case No. 10-CA-89 4
{¶11} In the case sub judice, the trial court sentenced appellant to six months
each on the trafficking in marijuana convictions in the fifth and fourth degrees and two
years on the possession of marijuana conviction in the third degree, to be served
consecutively for a total of three and one-half years. Pursuant to R.C. 2929.14(A)(3),
felonies of the third degree are punishable by "one, two, three, four, or five years."
Felonies of the fourth degree are punishable by "six, seven, eight, nine, ten, eleven,
twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months" and felonies
of the fifth degree are punishable by "six, seven, eight, nine, ten, eleven, or twelve
months." R.C. 2929.14(A)(4) and (5).
{¶12} The sentences herein are within the statutory sentencing range, and the
trial court did not abuse its discretion in ordering them to be served consecutively. See,
State v. Mooney, Stark App. No.2005CA00304, 2006-Ohio-6014; State v. Firouzmandi,
Licking App. No 2006-CA-41, 2006-Ohio-5823; Blakemore v. Blakemore (1983) 5 Ohio
St.3d 217.
{¶13} Upon review, we find the imposition of consecutive sentences was not
contrary to law.
{¶14} The sole assignment of error is denied.
Licking County, Case No. 10-CA-89 5
{¶15} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ William B. Hoffman________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 228
Licking County, Case No. 10-CA-89 6
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RYAN UMPHLETTEE :
:
Defendant-Appellant : CASE NO. 10-CA-89
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.
_s/ Sheila G. Farmer__________________
_s/ William B. Hoffman________________
_s/ Patricia A. Delaney________________
JUDGES