State v. Miller , 2022 Ohio 2187 ( 2022 )

[Cite as State v. Miller, 2022-Ohio-2187.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-22-04
v.
JILL N. MILLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 20 05 0111
Judgment Affirmed
Date of Decision: June 27, 2022
APPEARANCES:
Dale D. Cook for Appellant
Eric C. Stewart for Appellee
Case No 8-22-04
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jill N. Miller (“Miller”) brings this appeal from the
judgment of the Court of Common Pleas of Logan County. On appeal Miller claims
that the sentence imposed was excessive. For the reasons set forth below, the
judgment is affirmed.
{¶2} On November 12, 2021, Miller, pursuant to a plea agreement, changed
her plea to guilty to one count of identity fraud in violation of R.C.
2913.49(E),(I)(2), a felony of the second degree. Doc. 83. The State then requested
the dismissal of the remaining counts. Doc. 83. On December 20, 2021, the trial
court held a sentencing hearing. Doc. 87. The trial court ordered that Miller serve
a prison term of five years to a maximum of seven and one-half years. Doc. 87.
Miller appeals from this sentence and on appeal raises one assignment of error.
The trial court’s unduly harsh and excessive sentence was clearly
and convincingly unsupported by the record.
{¶3} Miller’s sole assignment of error claims that her sentence was excessive
based upon the record before it. Pursuant to R.C. 2953.08(G)(2), an appellate court
will only reverse a sentence “if it determines by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that
the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1, 59 N.E.3d 1231. “Trial courts have full discretion to impose
any sentence within the statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-
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Case No 8-22-04
06, 2014-Ohio-5485, ¶ 9. Any sentence imposed within the statutory range is not
contrary to law as long as the trial court considers the factors set forth in R.C.
2929.11 and 2929.12. State v. Silfe, 3d Dist. Auglaize No. 2-20-17, 2021-Ohio-644,
¶ 10. The Supreme Court of Ohio has held that R.C. 2953.08(G)(2)(b) “does not
provide a basis for an appellate court to modify or vacate a sentence based on its
view that the sentence is not supported by the record under R.C. 2929.11 and
2929.12.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, ¶ 39, 169 N.E.3d
649. The Court further held that an appellate court errs if it modifies or vacates a
sentence “based on the lack of support in the record for the trial court’s findings
under R.C. 2929.11 and R.C. 2929.12.” Id. at ¶ 29.
{¶4} Here, Miller claims her sentence exceeds that which is needed pursuant
to the factors set forth in R.C. 2929.11. Miller argues that the trial court basically
imposed a maximum sentence despite the State’s recommendation of a four year
sentence and Miller’s lack of a criminal record. This Court initially notes that Miller
was convicted of a felony of the second degree. The penalties for a second degree
felony range from two to eight years in prison. R.C. 2929.14(A)(2)(a). The
minimum sentence imposed by the trial court was five years. In accordance with
R.C. 2929.144, the maximum sentence would then be a potential seven and one-half
years. At this time, Miller is not required to serve more than five years, which is
within the range of sentences for her offense. Because it is within the range and the
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Case No 8-22-04
trial court considered the appropriate statutes, the sentence is presumptively valid.
State v. Foster, 3d Dist. Union No. 14-20-17, 2021-Ohio-3408. This court has no
authority to modify or vacate the sentence based upon a claim that the sentence is
not supported by the record. This reason alone is sufficient to overrule the
assignment of error.
{¶5} Additionally, Miller acknowledged that she would be subject to an
indefinite sentence which could extend her minimum sentence by 50%. Doc. 83.
The plea agreement also informed Miller that, despite the State’s agreement to
recommend a sentence of four years, the trial court was not required to follow the
recommendation. Doc. 83. At the change of plea hearing, Miller was advised that
she was agreeing to the following:
The Court: * * * The State will recommend a prison sentence of
not more than four years. Reagan Tokes applies. Agreed
restitution figure of $627,849.16. I know that the sentence I will
receive is solely a matter within the control of the judge. I
understand if the State has agreed to a sentencing
recommendation, the Court is not bound to accept the
recommendation.
***
The possible then [sic] indefinite sentencing reads as follows: For
first- and second-degree felonies, I understand that for a
qualifying felony two, the judge will select a term from the
existing range of two, three, four, five, six, seven, or eight years
and that number will be the minimum term, which would be as
stated two, three, four, five, six, seven, or eight years. The
maximum term is the minimum term plus 50 percent or one half
of that minimum term imposed on the most serious qualifying
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Case No 8-22-04
felony one or felony two offense being sentenced; therefore, the
maximum sentence would be eight years plus the 50 percent
would be four years, so eight to 12 under the Regan [sic] Tokes
law. Do you understand the possible maximum penalty?
The Defendant: Yes.
Tr. 8-11. Thus, Miller was aware that she could be sentenced to more than the four
years recommended by the State at the time she entered her plea of guilty.
{¶6} For all of the reasons discussed above, this Court finds that Miller has
not established by clear and convincing evidence that the prison term imposed was
contrary to law. The assignment of error is overruled.
{¶7} Having found no error in the particulars assigned and argued, the
judgment of the Court of Common Pleas of Logan County is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/jlr
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