State v. Lowery ( 2011 )

[Cite as State v. Lowery, 2011-Ohio-3287.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
STATE OF OHIO
Plaintiff-Appellee : C.A. CASE NO. 24332
vs. : T.C. CASE NO. 06-CR-159
: (Criminal Appeal from
CHARLES B. LOWERY Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of June, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Johnna M. Shia, Atty Reg. No. 0067685,
Assistant Prosecuting Attorney, P.O. Box 937, 301 West Third
Street, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Charles B. Lowery, #A536-057, Warren County Correctional
Institution, P.O. Box 120, State Route 63, Lebanon, OH 45036
Defendant-Appellant, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Charles B. Lowery, appeals from a final order
denying Lowery’s request to modify his prison sentences.
{¶ 2} Lowery was found guilty in 2006 of two counts of
aggravated robbery, R.C. 2911.01(A)(2), following a jury trial.
The trial court imposed mandatory prison terms of four years for
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those first degree felony sentences, to be served consecutively.
We affirmed Lowery’s convictions and the sentences they involved
on direct appeal. State v. Lowery, Montgomery App. No. 21879,
2007-Ohio-6608.
{¶ 3} On or about October 20, 2010, Lowery sent a letter to
the trial court, asking the court to modify his two sentences for
aggravated robbery. Lowery attached to the letter an excerpt from
a transcript of his sentencing hearing, in which the court expressed
concern over the “escalating pattern of seriousness and
dangerousness” portrayed by Lowery’s criminal conduct. The court
made reference to a presentence investigation report indicating
that Lowery had two prior felony convictions; a 1989 conviction
for receiving stolen property and a 1990 conviction for aggravated
burglary. Because of those prior felony one and two convictions,
the court imposed mandatory prison terms for his two aggravated
robbery offenses.
{¶ 4} In his letter, Lowery contended that the presentence
investigation report on which the court relied was incorrect.
Lowery alleged that his 1989 conviction was on a reduced charge
of unauthorized use of a motor vehicle, R.C. 2913.03, which in
1989 was not a felony but a first degree misdemeanor. Lowery asked
“that you will resentence me, if only to run the two (2) four (4)
year sentences together.”
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{¶ 5} The trial court treated Lowery’s request as a motion,
which the court denied. The court found that Lowery and his counsel
had been afforded an opportunity to review the presentence
investigation report prior to sentencing, pursuant to R.C.
2951.03(B)(2), but did not then object that the contents of the
report were incorrect. The court further found that it lacked
jurisdiction to modify Lowery’s two sentences because they are
valid sentences which have been executed. Lowery filed a notice
of appeal from the trial court’s judgment.
ASSIGNMENT OF ERROR
{¶ 6} “TRIAL JUDGE ENTERED FALSE INFORMATION AT SENTENCING
AND ALLOWED IT TO BE SOLE REASON FOR SENTENCE GIVEN.”
{¶ 7} The two aggravated robbery offenses of which Lowery was
convicted are first degree felonies. R.C. 2911.01(A)(2), (C).
If a court elects or is required to impose a prison term for a
first degree felony offense, the court is authorized to impose
a term of three, four, five, six, seven, eight, nine, or ten years.
R.C. 2929.14(A)(1).
{¶ 8} The four year terms the court imposed are well within,
and are in fact on the lower end, of the sentencing range authorized
by R.C. 2929.14(A)(1). Those sentences are clearly not contrary
to law. Therefore, on direct review of convictions in which those
sentences were imposed, we may reverse Defendant’s sentences only
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on a finding that the court abused its discretion when it imposed
those sentences. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912.
{¶ 9} Absent specific statutory authority, the trial court
lacked jurisdiction to modify Defendant’s valid, executed prison
sentence, State v. Hayes (1993), 86 Ohio App.3d 110; State v.
Addison (1987), 40 Ohio App.3d 7, especially after this court
had affirmed Defendant’s sentence. State v. Young, Montgomery
App. No. 20813, 2005-Ohio-5584. The trial court correctly
overruled Defendant’s motion to modify his sentence for that
reason.
{¶ 10} Defendant’s assignment of error is overruled. The
judgment of the trial court will be affirmed.
Fain, J. and Froelich, J. concur.
Copies mailed to:
Johnna M. Shia, Esq.
Charles B. Lowery
Hon. Dennis J. Langer