State v. Lyttle , 2013 Ohio 2608 ( 2013 )

[Cite as State v. Lyttle, 2013-Ohio-2608.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-12-22
v.
RUSSELL G. LYTTLE, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2012-CR-77
Judgment Affirmed
Date of Decision: June 24, 2013
APPEARANCES:
Gerald F. Siesel for Appellant
Edwin A. Pierce for Appellee
Case No. 2-12-22
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Russell G. Lyttle (“Lyttle”), appeals the
judgment of the Auglaize County Court of Common Pleas, finding him guilty and
sentencing him to thirty months in prison after Lyttle pled guilty to one count of
possession of marijuana. On appeal, Lyttle contends that his sentence was
contrary to law and an abuse of discretion because it greatly exceeded the jointly
recommended sentence in the plea agreement and because the trial court did not
properly consider and apply the felony sentencing guidelines. For the reasons set
forth below, the judgment is affirmed.
{¶2} On May 30, 2012, the Auglaize County Grand Jury returned a single-
count indictment charging Lyttle with possession of marijuana, in violation of
R.C. 2925.11(A)(C)(3)(e). The possession of more than 5,000 grams of
marijuana but less than 20,000 grams is a felony of the third degree.
{¶3} Lyttle, who was 32, lived in Detroit with his mother and eighty-year
old grandfather. Lyttle’s cousin, Tariq Haliburton (“Haliburton” or “co-
defendant”) lived in Washington State, but had come back to Detroit to visit.
Haliburton asked Lyttle to come with him for the weekend to a party in Dayton
where Haliburton had attended college at Central State. Haliburton did not have a
car, so Lyttle borrowed his grandfather’s car.
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{¶4} At about 12:25 a.m. on May 6, 2012, Trooper Barhorst clocked the
vehicle going 70 mph in a 65 mph zone. Upon following the vehicle, which
Haliburton was driving, the trooper observed suspicious behavior, slowing down
to 50 to 55 mph, as if the driver was attempting to get the trooper to pass him. The
trooper effectuated a traffic stop and noticed an odor of marijuana coming from
inside the vehicle. Haliburton admitted he had smoked some marijuana earlier
that day. During a pat-down search of Haliburton, the trooper discovered a
vacuum baggie that contained a small amount of marijuana (1.28 grams). Upon
searching the vehicle, 17 bags of marijuana totaling 7042.22 grams, or
approximately 15.53 pounds, were found in a black duffel bag inside the trunk of
the car. The estimated street value of the marijuana was approximately $112,000.
Lyttle, who was a passenger in the vehicle, stated that he was sleeping at the time
of the alleged traffic offense, so he did not know whether Haliburton had exceeded
the speed limit. He claimed that he did not know that Haliburton had marijuana in
the trunk of the car. Both Haliburton and Lyttle were arrested.
{¶5} Lyttle entered a plea of not guilty, and he was eventually released on
bond after twenty days in jail. Lyttle’s attorney also filed a motion to suppress.
{¶6} A hearing on the motion to suppress was scheduled for August 29,
2012. However, the parties advised the trial court that they had entered into plea
negotiations and had reached a joint agreement. The terms of the written plea
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agreement stated that “The State and Defendant jointly recommend an 18 month
sentence under [R.C.] 2953.08(D), and the 18 months [would] be either a period of
incarceration or community control notification.” In return, Lyttle would change
his plea to guilty and would also withdraw the motion to suppress. The trial court
advised Lyttle to “listen carefully to the negotiations that are going to be put
before me and make sure that that’s what you understand them to be, okay?”
{¶7} The prosecutor stated that the sole count in the indictment was a third
degree felony, which carried a maximum prison term of thirty-six months and a
maximum fine of $10,000. The prosecutor then stated:
Prison is not mandatory but it is presumed necessary. The State
would not object to a Presentence [Investigation] nor the
continuation of bond. The other agreement is that the State and the
Defendant jointly recommend an eighteen month sentence under
2953.08(D) and that the eighteen months be either a period of
incarceration or a community control notification.
(Change of Plea Hrg. Tr. 3-4) The State then presented the written plea agreement
to the trial court, which had been signed by the prosecutor, Lyttle, and Lyttle’s
attorney.
{¶8} The trial court proceeded with the Crim.R. 11 colloquy and informed
Lyttle of the rights that he was foregoing by entering his plea and not going
forward with a trial. Lyttle indicated that he understood. The trial court also
informed Lyttle that the court could determine he was not amenable to community
control sanctions and send him to prison, and that, in fact there was a presumption
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in favor of prison. As a third degree felony, the potential prison sentence for the
offense could be 9 months, 12 months, 18 months, 24 months, 30 months, up to a
maximum of 36 months, along with a license suspension, and possibly a fine. (Tr.
6-7).
{¶9} The trial court then repeated the terms of the plea agreement, stating
that “Now these two [referring to the prosecutor and Lyttle’s attorney] are entering
into a joint recommendation. That means they join in recommending an 18-month
sentence for you and if I follow that 18-month sentence, whether that’s an 18-
month notification or that’s an 18-month penitentiary sentence, in either event,
you’re giving up your rights to appeal. Do you understand?” (Tr. 11) The trial
court also reminded Lyttle that he would be “forever giving up those issues that
have been raised in the motion to suppress.” (Tr. 12)
{¶10} The following exchange also took place:
THE COURT: Do you understand that I am not obligated to follow
the recommendation that these two make? Just because they join in
a recommendation, the bottom line is at the end of the day I have to
look myself in the mirror. At the end of the day, I’m the guy who
has to call the sentencing. Do you understand?
LYTTLE: Yes, Your Honor.
THE COURT: So I listen to them and I consider their views and
what they have to say. I also consider several pages worth of Ohio
Revised Code, all the information that I can get and in the end, I
have to look at myself in the mirror, so I’m the guy who calls it. So
as I sit here right now, I don’t know what sentence that I’m going to
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give you, so nobody else can promise you anything on my behalf.
Do you understand?
LYTTLE: Yes, Your Honor.
(Tr. 13)
{¶11} The trial court then gave Lyttle an opportunity to ask questions,
ascertained that he was satisfied with his counsel’s representation, and then
proceeded to accept Lyttle’s guilty plea. The State reviewed the facts of the case,
as outlined above.
{¶12} The trial court then addressed Lyttle again.
THE COURT: Mr. Lyttle, whose pot was this?
LYTTLE: My cousin’s.
THE COURT: Who’s that?
LYTTLE: Mr. Halliburton
THE COURT: The driver?
LYTTLE: Yes, Your Honor.
THE COURT: Whose car was it?
LYTTLE: My grandfather’s.
THE COURT: Who borrowed it from grandpa?
LYTTLE: I did.
(Tr. 16)
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{¶13} The trial court then ordered a presentence investigation (“PSI”), and
continued sentencing for approximately six-to-eight weeks. Lyttle was
admonished to adhere to the conditions placed upon bond.
{¶14} The sentencing hearing was held on November 7, 2012. The State
presented its position on sentencing, which was a recommendation for community
control.
Your Honor, after reviewing the presentence investigation and the
facts of this case, and the fact that Mr. Lyttle’s co-defendant, Mr.
Haliburton, admitted to being the primary person involved in the
ownership in trafficking in the marijuana, the State is not opposed or
is recommending community control for Mr. Lyttle.
(Sent. Tr. 3)
{¶15} There was then a discussion of the PSI report, wherein Lyttle
indicated that it contained several errors concerning his criminal history. Lyttle
represented that his uncle and his uncle’s son both had the exact same name as he
did, and several of the offenses listed on the PSI belonged to his uncle or cousin.
The trial court then went through the various offenses in the PSI, and Lyttle
admitted to the offenses that were his, and told the court which ones involved his
relatives. Most of Lyttle’s admitted offenses involved traffic and DUI
convictions: 2001- driving while license suspended/revoked; 2002 - driving while
license suspended/revoked and DUI/open container; 2002 - failure to appear; 2004
- driving while license suspended/revoked; 2005 driving while license
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suspended/revoked; 2006 misdemeanor traffic offense; 2009 driving while license
suspended/revoked (report said 30 days in jail, but Lyttle stated it was only 3 days
in jail).
{¶16} There were two relatively more serious offenses in 2004 for uttering
and publishing, and larceny by conversion when he forged/altered/published a
cashier’s check in the amount of $7,459 involving payment for back child support.
Lyttle represented that he has been paying restitution to the county for that and he
had paid back about half of it. He completed his probation for this in 2010.
{¶17} There were also outstanding warrants for his arrest for two district
courts in Michigan, which Lyttle claimed were for traffic tickets, as well as for the
2002 failure to appear for DUI. He claimed he was trying to take care of these
matters, but was having difficulty because of scheduling issues with the courts and
the mix-up in records because of his family members with the same names. (Sent.
Tr. 15-16) He claimed that 85% of the tickets were not his and belonged to the
other family members. For example, he contends that he has a ticket on his record
from 1985, when he was seven years old. (Id.)
{¶18} There was also a discussion on the record about the fact that Lyttle
had tested positive for THC (marijuana), although the conditions of his bond were
that he could not use any drug of abuse. (Sent. Tr. 12) Lyttle claimed that he had
a prescription and a card for medical marijuana, and so he did not believe it
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qualified as an illicit substance. Lyttle represented that he was prescribed 3 grams
per week, at a cost of $50 per week that he takes to alleviate pain from an injury.
(Id. at 13) However, the trial court never received confirmation from the doctor’s
office to verify that he had a prescription. (Id.)
{¶19} After thoroughly questioning Lyttle concerning his employment,
education, and other background items, the trial court stated:
The Court notes that [Lyttle] has had outstanding warrants for his
arrest out of at least three jurisdictions at the time of the commission
of the offense in this case. This Court accepts almost all of
[Lyttle’s] comments concerning this relative and these other
offenses, the felonies and so forth. I accept that. But, there are
outstanding warrants and it’s [not] just pending court dates. They’re
outstanding warrants for [Lyttle’s] arrest. So, I do not accept the
statements concerning those matters.
The Court noting that this is a felony of the third degree, after
considering the information provided to the Court by the parties and
the PreSentence Investigation, the Court sentences [Lyttle] to thirty
months at the Department of Rehabilitation and Corrections plus
post release control which the court imposes as a mandatory term of
post release control for three years. * * *
(Sent. Tr. 16-17). The trial court did not impose a fine, noting that Lyttle was
indigent, and he was given credit for twenty days already served against his thirty-
month sentence.
{¶20} It is from this judgment that Lyttle now appeals, raising the
following assignment of error for our review.
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First Assignment of Error
The trial court’s sentencing of [Lyttle] to a sentence totaling 30
months, being in excess of the jointly recommended 18-month
sentence (R.C. 2953.08(D)) was contrary to law and further
constituted an abuse of discretion in failing to properly consider
and apply the felony sentencing guidelines set forth in Ohio
Revised Code, Section 2929.11 and 2929.12
{¶21} Lyttle raises several issues in his assignment of error, alleging that
the thirty-month sentence imposed by the trial court was excessive, contrary to
law, and an abuse of discretion. Lyttle asserts that the sentence was in excess of
the jointly recommended 18-month sentence. He also claims that the trial court
erred when it failed to consider the felony sentencing guidelines set forth in R.C.
2929.11 and R.C. 2929.12.
{¶22} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109
Ohio St.3d 1, 2006–Ohio–856, “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.” State v. Mathis, 109 Ohio St .3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶
37. The enactment of H.B. 86, effective September 30, 2011, modified some
aspects of the sentencing statutes and now requires a trial court to make certain
findings before imposing consecutive sentences. R.C. 2929.14(C)(4); State v.
Rust, 3d Dist. No. 9-12-49, 2013-Ohio-2151, ¶ 14. However, Lyttle’s sentence
does not involve consecutive sentences and his issue on appeal was not affected by
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the modification to the sentencing guidelines. The term abuse of discretion
implies that the court’s attitude is unreasonable, arbitrary or unconscionable. State
v. Adams, 62 Ohio St.2d 151, 157 (1980). It involves views or actions “that no
conscientious judge, acting intelligently, could honestly have taken .” (Internal
citations omitted.) State v. Hancock, 108 Ohio St.3d 57, 2006–Ohio–160, ¶ 129–
130.
{¶23} Courts, nevertheless, are still required to comply with the sentencing
laws unaffected by Foster, such as R.C. 2929.11 and 2929.12, which require
consideration of the purposes and principles of felony sentencing and the
seriousness and recidivism factors. Mathis at ¶ 38. However, a sentencing court
does not have to make any specific findings to demonstrate its consideration of
those general guidance statutes. Foster at ¶ 42.
{¶24} Lyttle complains that the trial court did not follow joint-sentencing
recommendation set forth in the plea agreement. However, it is well-settled that a
trial court has no duty to accept the State's sentencing recommendations. State v.
Graham, 3d Dist. No. 14-04-28, 2005-Ohio-1431, ¶ 11, citing State v. Kitzler, 3d
Dist. No. 16-02-06, 2002-Ohio-5253. Trial courts may reject plea agreements and
are not bound by a jointly recommended sentence. State v. Underwood, 124 Ohio
St.3d 365, 2010–Ohio–1, ¶ 28. “A trial court does not err by imposing a sentence
greater than that forming the inducement for the defendant to plead guilty when
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the trial court forewarns the defendant of the applicable penalties, including the
possibility of imposing a greater sentence than that recommended by the
prosecutor.” State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005–Ohio–3674, ¶
6; State v. Spencer, 3d Dist. No. 6–12–15, 6–12–16, 2013-Ohio-137, ¶ 10.
{¶25} In the case before us, the record demonstrates that the trial court very
clearly informed Lyttle that it was under no obligation to follow the
recommendation in the plea agreement. Lyttle indicated that he understood and
concurred.
{¶26} Lyttle also contends that his sentence was contrary to law because “at
sentencing the court failed to indicate on the record that it had considered any of
the applicable factors.” (Appellant’s Br. p. 10) He claims that the trial court’s
statements during the hearing “are silent as to any reference that the Court
considered the seriousness and recidivism factors enumerated in R.C. 2929.12,” or
any of the other factors in R.C. 2929.12. (Id. at p. 11) Lyttle then presents his
analysis under these statutory sections and then claims that the trial court erred
because it apparently did not come to the same conclusion.
{¶27} First, we find that the journal entry did clearly indicate that the trial
court considered the factors set forth in R.C. 2929.11 and R.C. 2929.12. See Nov.
7, 2012 J.E. (“The Court has considered the record, oral statements * * * and Pre-
Sentence Report prepared, as well as the principles and purposes of sentencing
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under Ohio Revised Code 2929.11, and has balanced the seriousness and
recidivism factors under Ohio Revised Code 2929.12.”) This is sufficient to
satisfy the requirements set forth in State v. Arnett, 88 Ohio St.3d 208, 2000-Ohio-
302. See, also, State v. Scanlon, 3d dist. No. 2-08-18, 2009-Ohio-2305, ¶ 4. And,
the sentence imposed was within the range allowed by R.C. 2929.14.
{¶28} Although the trial court did not specify which particular sections of
the statutory factors it considered, the record indicates that the trial court did
consider these factors as indicated in the extensive dialogue between the trial court
and Lyttle, both at his change of plea hearing and at the sentencing hearing. See
excerpts above. The trial court explicitly discussed applying the guidelines in the
Ohio Revised Code to the facts and information it is able to discern from
discussions with defendants and the PSI. (“I listen to them and I consider their
views and what they have to say. I also consider several pages worth of Ohio
Revised Code, all the information that I can get and in the end, I have to look at
myself in the mirror, so I’m the guy who calls it.” Sent. Tr. 13)
{¶29} The 30-month prison sentence handed down by the trial court was
within the range for a third degree felony, and the trial court clearly indicated that
it considered the applicable factors in the Revised Code when it sentenced Lyttle.
Accordingly, Lyttle’s assignment of error is overruled.
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{¶30} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and ROGERS, J., concur.
/jlr
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