DocketNumber: No. 08 MA 20.
Citation Numbers: 2009 Ohio 1505
Judges: DeGENARO, J.
Filed Date: 3/24/2009
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On October 2, 2002, subsequent to a trial by jury, Moore was convicted on 12 counts of aggravated robbery, rape, complicity to rape, kidnapping, conspiracy to commit aggravated robbery, and aggravated menacing, along with 11 firearm specifications. The trial court imposed maximum consecutive sentences on all counts for a total of 141 years. Moore appealed that decision and on June 24, 2005, this court partially reversed and remanded the decision. State v. Moore,
{¶ 3} Subsequent to the Ohio Supreme Court's decision inFoster, Moore filed another appeal. State v. Foster,
{¶ 4} This court has identified seven issues and considerations for our review of non-merit briefs:
{¶ 5} "1. An indigent accused has a constitutional right to court-appointed counsel for the purposes of appeal from his conviction.
{¶ 6} "2. Court-appointed counsel should conscientiously examine the record of the trial court and present any assignments of error which could arguably support the appeal.
{¶ 7} "3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent's appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.
{¶ 8} "4. Court-appointed counsel's conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.
{¶ 9} "5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶ 10} "6. Where the Court of Appeals make such an examination and concludes that the appeal is wholly frivolous, the motion of an indigent appellant for the appointment of new counsel for the purposes of appeal should be denied. *Page 3
{¶ 11} "7. Where the Court of Appeals determines that an indigents appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed. Toney at syllabus.
{¶ 12} In the present case, counsel for Moore noted that this is the third time Moore's case has been before this court, that the most recent appearance before the trial court was for the limited purpose of resentencing pursuant to the Ohio Supreme Court's decision inFoster, and that the trial court exercised its discretion in imposing Moore's sentence pursuant to Foster. Counsel concluded that he was unable to identify any issue that could arguably support an appeal.
{¶ 13} We proceed to examine the entire record below, along with the assignment of error identified by Moore pro-se, to determine if his appeal wholly lacks merit. Given that we last remanded this case solely for resentencing pursuant to Foster, our review of Moore's case is limited to issues within Moore's most recent sentencing hearing, specifically, whether the trial court followed the mandates ofFoster in reaching its sentencing decision.
{¶ 14} When reviewing a felony sentence, an appellate court first reviews the sentence de novo to ensure that the sentencing court clearly and convincingly complied with the applicable laws. State v.Kalish,
{¶ 15} Trial courts have the discretion to impose a sentence within the statutory range for the offense, and are not required to give reasons for imposing more than the minimum sentence. Kalish at ¶ 11, quoting State v. Foster,
{¶ 16} In this case, Moore had ultimately been convicted and sentenced for the following offenses: three counts of aggravated robbery, in violation of R.C.
{¶ 17} The trial court heard statements from Moore, Moore's mother, counsel for both sides, and took such statements into consideration. The trial court stated that it *Page 5 considered the principles and policies behind sentencing, took into account the age of both the defendant and the victim, and listed many seriousness and recidivism factors. The trial court's thorough consideration of such factors indicates that it did not proceed in an unreasonable, arbitrary or unconscionable manner by imposing maximum and consecutive sentences.
{¶ 18} Pursuant to the guidelines of Toney, this court has conducted a thorough examination of the record. As this is the third appeal of Moore's original case, most issues are res judicata for the purposes of this appeal. The resentencing hearing and subsequent sentence were decided in accordance with the law and within the discretion of the sentencing court. We conclude, as did counsel, that there are no arguable non-frivolous issues that could be presented on appeal.
{¶ 19} Moore puts forth the following sole assignment of error:
{¶ 20} "The imposition of maximum consecutive sentences to first time offender whose offenses occurred prior to State v. Foster pursuant to the revised statute is unconstitutional because the revised statutes' statutory maximum sentences are significantly higher than those in effect when the Appellant was originally sentenced. See Rogers v.Tennessee (2001),
{¶ 21} Moore argues that the application of Foster violates the prohibition against ex post facto laws because it involves an expansion of the maximum sentences allowed by statute. Moore indicates that this expansion occurs because Foster eliminated the presumptions of minimum concurrent terms that existed at the time of Moore's offenses.
{¶ 22} Upon review of Moore's most recent sentencing transcript, Moore failed to raise his ex post facto and due process arguments before the trial court at his resentencing hearing. It is therefore not necessary for this court to reach the merits of Moore's argument. By failing to raise the issue below, Moore cannot compel this court to address the merits of his claim. State v. Davis,
{¶ 23} Even if this court addresses the merits of Moore's appeal, his argument fails. This court has conclusively determined that the retroactive application of Foster does not violate the Ex Post Facto Clause or a defendant's right to due process of law. State v.Palmer, 7th Dist. No. 06-JE-20,
{¶ 24} Because Moore's argument is the same as the arguments we have rejected in Palmer and subsequent cases, we will continue to adhere to our prior decisions and conclude that the trial court did not violate Moore's rights under the Due Process and Ex Post Facto Clauses when resentencing him pursuant to Foster. Moore's sole assignment of error is meritless. Accordingly, the judgment of the trial court is affirmed and counsel's motion to withdraw is granted.
Vukovich, P.J., concurs.
Waite, J., concurs. *Page 1
State v. Stone, 08 Ma 64 (11-26-2008) , 2008 Ohio 6296 ( 2008 )
State v. Hawkins, 07 Je 14 (3-18-2008) , 2008 Ohio 1529 ( 2008 )
State v. Moore , 2005 Ohio 3311 ( 2005 )
State v. Moore, 05 Ma 178 (12-31-2007) , 2007 Ohio 7215 ( 2007 )
State v. Jones, 07 Ma 159 (6-27-2008) , 2008 Ohio 3336 ( 2008 )