State v. Goler

[Cite as State v. Goler, 2013-Ohio-661.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 12-CA-64
MICHAEL R. GOLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 09CR00119
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 22, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EARL L. FROST SIOBHAN R. CLOVIS
Assistant Prosecuting Attorney Reese, Pyle, Drake & Meyer, P.L.L.
Licking County Prosecutor's Office 36 N. Second Street
20 S. Second St., 4th Floor P.O. Box 919
Newark, Ohio 43055 Newark, Ohio 43058-0919
Licking County, Case No. 12-CA-64 2
Hoffman, J.
{¶1} Defendant-appellant Michael R. Goler appeals the sentence entered by
the Licking County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On May 21, 2009, Appellant entered a plea of guilty to two counts of
trafficking in crack cocaine, in violation of R.C. 2925.03(CC), and one count of
permitting drug abuse, in violation of R.C. 2925.13. All of the transactions occurred at
Appellant’s residence, which is located within 990 feet of a school. Accordingly,
Appellant’s felony convictions include specifications the crimes occurred within 1000
feet of a school.
{¶3} The trial court accepted the plea, and convicted Appellant of the charges.
The trial court conducted a sentencing hearing on July 2, 2009. Appellant was
sentenced to five years of community control, and was informed if he violated the terms
of the community control, he would then be sentenced to eighteen months on each
count of trafficking, with the sentences to be served consecutively, and six months in jail
for the misdemeanor, to run concurrently with the other sentences.
{¶4} Appellant violated the terms of his community control, and, on July 5,
2012, the trial court revoked his probation. On the same date, the trial court sentenced
Appellant to eighteen months on each count of trafficking, consecutive to each other,
and six months in jail for the misdemeanor, to run concurrently.
{¶5} Appellant now appeals, assigning as error:
1
A recitation of the underlying facts is unnecessary to the resolution of this appeal.
Licking County, Case No. 12-CA-64 3
{¶6} “I. IT WAS ERROR TO SENTENCE MR. GOLER, A NONVIOLENT
DRUG OFFENDER WHO WAS INITIALLY SENTENCED TO COMMUNITY CONTROL,
TO CONSECUTIVE SENTENCES WITHOUT PROVIDING THE STATUTORILY
REQUIRED RATIONALE THEREFOR.”
I.
{¶7} In the sole assignment of error, Appellant maintains the trial court erred in
imposing consecutive sentences without providing the statutorily required rationale for
imposing consecutive sentences.
{¶8} As set forth in the Statement of the Case, supra, Appellant was initially
sentenced on June 15, 2009. The sentencing occurred prior to the effective date of H.B.
86, September 30, 2011. H.B. 86 is not retroactive. State v. Latham, 5th 12CA00004,
2012-Ohio-4516; State v. Davis, 5th CT2011-0033, 2012-Ohio-4922.
{¶9} In State v. Little, Fifth App. Dist. No. CT2011–0057, 2012–Ohio–2895, this
Court held,
{¶10} “Accordingly, we find Appellant's argument the trial court was required to
comply with the requirements of H.B. 86 in issuing Appellant's sentence herein is not
well taken.
{¶11} “The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912 set forth a two step process for examining felony sentences. The first step is
to ‘examine the sentencing court's compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law.’ Kalish at ¶ 4. If this first step ‘is satisfied,’ the second step requires the
trial court's decision be ‘reviewed under an abuse-of-discretion standard.’ Id.Licking County, Case No. 12-CA-64 4
{¶12} “The relevant sentencing law at the time of sentencing herein was
controlled by the Ohio Supreme Court's decision in State v. Foster, i.e. ‘ * * * 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.’ 109 Ohio St.3d 1, 30, 2006–Ohio–
856 at ¶ 100, 845 N.E .2d 470, 498.
{¶13} “Upon review of Appellant's sentence, the same is within the parameters
for the offense and does not amount to an abuse of discretion. We find the record fails
to demonstrate the trial court failed to give careful and substantial deliberation to the
relevant statutory considerations.”
{¶14} As in Little, H.B. 86 is not applicable to Appellant's sentencing herein;
therefore, pursuant to Kalish, supra, we find the trial court properly considered the
principles and factors necessary in imposing the sentence rendered. We find the trial
court did not abuse its discretion in sentencing Appellant to the term imposed.
{¶15} Appellant’s sole assignment of error is overruled.
{¶16} The sentence entered by the Licking County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Licking County, Case No. 12-CA-64 5
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MICHAEL R. GOLER :
:
Defendant-Appellant : Case No. 12-CA-64
For the reason stated in our accompanying Opinion, Appellant's sentence
entered by the Licking County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER