State v. Johnson ( 2016 )

[Cite as State v. Johnson, 2016-Ohio-10.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. CT2015-0024
KENNETH R. JOHNSON : CT2015-0033
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case Nos.
CR2015-0002 & CR2015-0049
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 4, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX WILLIAM CRAMER
Prosecuting Attorney 470 Olde Worthington Road, Ste. 200
BY: GERALD V. ANDERSON Westerville, OH 43082
Assistant Prosecuting Attorney
27 North Fifth St., Box 189
Zanesville, OH 43702-0189
[Cite as State v. Johnson, 2016-Ohio-10.]
Gwin, P.J.
{¶1} Appellant, Kenneth R. Johnson [“Johnson”] appeals the Muskingum County
Court of Common Pleas sentences imposed by Judgment Entries filed May 11, 2015.
Facts and Procedural History
{¶2} In Muskingum County Court of Common Pleas Case No. CR-2015-0048,
Johnson pled guilty to robbery, a felony of the third degree, theft of a credit card, a felony
of the fifth degree, and petty theft, a misdemeanor of the first degree.1
{¶3} In Muskingum County Court of Common Pleas Case No. CR-2015-00028,
Johnson pled guilty to Escape, a felony of the third degree.2
{¶4} At the time of his convictions, Johnson had been on post release control in
Perry County Court of Common Pleas, Case No. 13CR0040.
{¶5} By Judgment Entry filed May 11, 2015 in Case No. CR-2015-0048, Johnson
was sentenced. The trial court merged one count of theft of a credit card, a felony of the
fifth degree, and petty theft, a misdemeanor of the first degree. The trial court imposed
no sentence upon the merged counts. (T, Apr. 29, 2015 at 12). The trial court sentenced
Johnson to a definite term of two years on the charge of robbery, a felony of the third
degree. In addition, the trial court terminated Johnson’s post release control in the Perry
County case and ordered the remainder of the term of post release control in Perry County
Court of Common Pleas Case No. 13CR0040 be imposed and served consecutive to the
two year term imposed in Muskingum County Court of Common Pleas Case No. CR-
2015-0048.
1 Fifth District, Muskingum No. CT2015-0033.
2 Fifth District, Muskingum No CT2015-0024.
Muskingum County, Case No. CT2015-0024 CT 2015-0033 3
{¶6} By Judgment Entry filed May 11, 2015 in Case No. CR-2015-0002, Johnson
was sentenced on one count of Escape, a felony of the third degree in violation of R.C.
2921.34(A) to a definite term of 12 months. The trial court ordered this sentence run
concurrently to the two-year sentence imposed in Muskingum County Court of Common
Pleas Case No. CR-2015-0048.
{¶7} Johnson appeals the trial court's decision to impose the remainder of his
post-release control time as a prison term.
{¶8} By Judgment Entry filed July 20, 2015, this Court consolidated 5th Dist.
Muskingum No. CT2015-0024 and 5th District, Muskingum No. CT2015-0033 for
purposes of appeal and ordered that the controlling case number was to be 5th Dist.
Muskingum No. CT2015-0024.
Assignment of Error
{¶9} Johnson raises one assignment of error,
{¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION UNDER R.C. 2929.141
BY IMPOSING ALL OF THE REMAINING POST-RELEASE CONTROL TIME AS A
PRISON SANCTION.”
Analysis
{¶11} At the outset, we note there is no constitutional right to an appellate review
of a criminal sentence. Moffitt v. Ross, 417 U.S. 600, 610–11, 94 S.Ct. 2437, 2444, 41
L.Ed.2d 341(1974); McKane v. Durston, 152 U.S. 684, 687, 14 S.Ct. 913. 917(1894);
State v. Smith, 80 Ohio St.3d 89, 1997–Ohio–355, 684 N.E.2d 668(1997); State v.
Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823. An individual has no
substantive right to a particular sentence within the range authorized by statute. Gardner
Muskingum County, Case No. CT2015-0024 CT 2015-0033 4
v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204–1205, 51 L.Ed.2d 393 (1977); State
v. Goggans, 5th Dist. Delaware No.2006–CA–07–0051, 2007–Ohio–1433, ¶ 28. In other
words “[t]he sentence being within the limits set by the statute, its severity would not be
grounds for relief here even on direct review of the conviction ... It is not the duration or
severity of this sentence that renders it constitutionally invalid....” Townsend v. Burke, 334
U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948).
{¶12} When a defendant on post-release control commits a new felony, he or she
is subject to additional punishment. R.C. 2929.141 governs commission of an offense by
person under post release control. Subsection (A) (1) states the following:
(A) Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court
may terminate the term of post-release control, and the court may do either
of the following regardless of whether the sentencing court or another court
of this state imposed the original prison term for which the person is on post-
release control:
(1) In addition to any prison term for the new felony, impose a prison
term for the post-release control violation. The maximum prison term for the
violation shall be the greater of twelve months or the period of post-release
control for the earlier felony minus any time the person has spent under
post-release control for the earlier felony. In all cases, any prison term
imposed for the violation shall be reduced by any prison term that is
administratively imposed by the parole board as a post-release control
sanction. A prison term imposed for the violation shall be served
Muskingum County, Case No. CT2015-0024 CT 2015-0033 5
consecutively to any prison term imposed for the new felony. The imposition
of a prison term for the post-release control violation shall terminate the
period of post-release control for the earlier felony.
{¶13} In State v. Proctor, 12th Dist. Butler Nos. CA2006–03–042, CA2006–03–
043, 2007–Ohio–909, the Court observed,
This statute clearly and unambiguously required the trial court to
order that appellant's sentence for the post-release control violation be
served consecutively with the sentence on the new felony. The statute
mandates imposition of consecutive sentences without reference to the
R.C. 2929.14(E) (4) consecutive factors which were found unconstitutional
in Foster. R.C. 2929.141(B) usurps the trial court's discretion to sentence
appellant to anything but consecutive sentences. Simply stated, the
unconstitutional consecutive factors in R.C. 2929.14(E)(4) have no
application to the present instance, where the trial court sentenced
appellant for a new felony violation, and then proceeded to sentence him
for a post-release control violation.
Proctor, ¶ 8; Accord, State v. Pena, 6th Dist. Lucas No. L–13–1030, 2014–Ohio–3438, ¶
15; State v. Sheehi, 10th Dist. Franklin No. 12AP–641, 2013–Ohio–2213, ¶ 13; State v.
Gillespie, 172 Ohio App.3d 304, 2007–Ohio–3439, 874 N.E.2d 870(2nd Dist.), ¶ 24.
{¶14} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.3
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31; State v.
3 This issue is presently before the Ohio Supreme Court. See, State v. Marcum, 141 Ohio St.3d
1453, 2015-Ohio-239, 23 N.E.3d 1195(Table).
Muskingum County, Case No. CT2015-0024 CT 2015-0033 6
Tammerine, 6th Dist. Lucas No. L–13–1081, 2014–Ohio–425, ¶10. We now review felony
sentences using the standard of review set forth in R.C. 2953.08. Id. at ¶11. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. Id.
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.
{¶15} During the April 29, 2015 sentencing hearing, the trial court observed,
Well, the Court has received the presentence investigation and had
an opportunity to review the same. The Court will note for the record in
regards to Case No. 0002, you entered a plea of guilty to one count that
count being a felony of the third degree. Case No. 0048, you entered pleas
of guilty to three counts, one being a felony of the third degree, a felony of
the fifth degree, and a misdemeanor of the first degree.
Court -- the Prosecution agreed to dismiss count four at the time of
sentencing. The Court will grant their motion to dismiss that count.
Upon review of the presentence investigation the Court will note for
the record you have seven prior felonies. You were on post-release control
at the time of committing this offense. You were released [sic.] that
offense was in 9 -- 2013, assault on a peace officer out of Perry County.
You were sentenced 14 months. You were released on July of 2014, sent
back to prison one month later for 90 days for violating your PRC. You were
Muskingum County, Case No. CT2015-0024 CT 2015-0033 7
released from there in [sic.] November 5th of 2014 and you committed this
offense one month later.
As such, the Court will, in regards to the 0002, impose a 12-month
sentence. In regards to 0048, the Court will impose, on the felony of the
third degree, a two-year sentence. The other two counts the Court finds
merge with that offense. Therefore, no sentence will be imposed on those.
The Court will order those sentences be served concurrently. The Court
will terminate your post-release control and order that the time you have left
be imposed and by law be served consecutively to the sentence I just gave
you.
You will also be given credit on the sentences I gave you of 130 days.
You also will be ordered to pay the court costs in this matter.
***
T., Apr. 29, 2015 at 11-13(emphasis in original).
{¶16} Upon review, we find that the trial court’s sentencing on the charge complies
with applicable rules and sentencing statutes. The sentence was within the statutory
sentencing range. Furthermore, the record reflects that the trial court considered the
purposes and principles of sentencing and the seriousness and recidivism factors as
required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised
Johnson regarding post release control. Therefore, the sentence is not clearly and
convincingly contrary to law.
Muskingum County, Case No. CT2015-0024 CT 2015-0033 8
{¶17} However, R.C. 2929.141 leaves it to the trial court's discretion to select the
appropriate sanction for the post release control violation. State v. Dotson, 8th Dist. No.
101911, 2015-Ohio-2392, 118.
{¶18} In the case at bar, the trial court noted that this is Johnson’s second violation
of post-release control in Perry County Court of Common Pleas Case No. 13CR0040.
Johnson was released after serving a sanction of 90 days and committed the instant
offense within one month of his release.
{¶19} In the case at bar, the record established that the trial court engaged in the
correct analysis and the record contains evidence to support the trial court’s findings.
{¶20} Upon review, we find that the trial did not abuse its discretion in ordering
Johnson to serve the unexpired portion of his post release control time.
{¶21} Johnson’s sole assignment of error is overruled.
Muskingum County, Case No. CT2015-0024 CT 2015-0033 9
{¶22} The judgment of the Muskingum County Court of Common Pleas,
Muskingum County, Ohio is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur