State v. Triggs

[Cite as State v. Triggs, 2010-Ohio-4178.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-10-03
v.
DAVID TRIGGS, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2009 CR 53
Judgment Affirmed
Date of Decision: September 7, 2010
APPEARANCES:
Joseph A. Benavidez for Appellant
Todd C. Schroeder for Appellee
Case No. 12-10-03
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant David Triggs (“Triggs”) brings this appeal from
the judgment of the Court of Common Pleas of Putnam County sentencing him to
a total of ten years in prison. For the reasons set forth below, the judgment is
affirmed.
{¶2} On September 25, 2009, the Putnam County Grand Jury indicted
Triggs on three counts of rape in violation of R.C. 2907.02 and one count of
kidnapping in violation of R.C. 2905.01, all felonies of the first degree. Triggs
entered pleas of not guilty to all charges. On October 5, 2009, Triggs filed a not
guilty by reason of insanity plea and a motion requesting a competency evaluation.
Pursuant to a negotiated plea with the State, Triggs, on December 30, 2009,
changed his plea to guilty to the first two counts of the indictment which were
amended to sexual battery in violation or R.C. 2907.03, felonies of the third
degree. The State, in exchange agreed to dismiss all remaining counts and to
remain silent on sentencing. On February 16, 2010, a sentencing hearing was held
and trial court imposed five years in prison on each count and ordered the
sentences to be served consecutively. Triggs appeals from this judgment and
raises the following assignment of error.
[Triggs] is entitled to an appeal of his sentence as a matter of
right pursuant to the trial court imposing maximum sentences
and sentencing [Triggs] contrary to law.
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Case No. 12-10-03
{¶3} Triggs sole assignment of error alleges that the trial court erred by
imposing maximum, consecutive sentences. When determining the appropriate
sentence, the trial court may consider charges and their supporting facts that are
dismissed pursuant to a plea agreement when the defendant is entering a plea to
reduced charges. State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926
N.E.2d 714. “[T]rial 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, ¶37, 846 N.E.2d
1. Appeals of a sentence for any reason, other than an appeal of the application of
the factors in R.C. 2929.12, shall be reviewed using a clear and convincing
evidence standard as set forth in R.C. 2953.08(G). See concurring opinion in
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶42, 896 N.E.2d 124.
{¶4} Here, Triggs argues that the trial court imposed a sentence as if he
“tendered pleas of guilt (sic) to charges of rape instead of sexual battery.” Br. 3.
This court notes that before entering the guilty pleas, Triggs was warned that he
could receive sentences of up to five years for each conviction and that they could
be served consecutively.
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Case No. 12-10-03
Q. Do you understand that the amendment would be on each
of two counts, being Count 1, rape, being amended to sexual
battery, and Count 2, rape, being amended to sexual battery?
A. Yes, your Honor.
Q. Do you understand that each of those counts carries a
potential sentence of up to five years in prison and a potential
fine of up to $10,000?
A. Yes, your Honor.
Q. Do you understand that the counts could be ordered
consecutive, meaning that the prison term, if ordered, could be
ordered to be served one after another, meaning for a total
potential time of up to 10 years in prison?
A. Yes, your Honor.
***
Q. What plea are you entering to Count 1 as amended, being
sexual battery, a felony of the third degree?
A. Guilty, Your Honor.
Q. Are you entering that plea voluntarily?
A. Yes, Your Honor.
Q. What plea are you entering to Count 2, sexual battery, a
felony of the third degree?
A. Guilty, Your Honor.
Q. Are you entering that plea voluntarily?
A. Yes, Your Honor.
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Case No. 12-10-03
Dec. 30, 2009, Tr. 3-4. At the sentencing hearing, the trial court gave
consideration to the pre-sentence investigation and other reports in the record.
Based upon the information contained in those documents, as well as Triggs’ own
statements, the trial court made the following statements at sentencing.
The Court: As indicated, the record in front of me shows that
there are repeated forcible violent acts of rape that occurred in
the events that are before the Court here today. There also
appears to be questions about your past sexual activity that
have been raised in the pre-sentence report. The activities
appear to be a pattern in which you are taking advantage of
other individuals including in this case of a significantly
developmentally disabled individual, and that they were
repeated acts that you knew to be wrong, that you have in the
past denied were your responsibility, and clearly were violent
acts of sexual offenses.
Feb. 16, 2010, Tr. 10. Although the offenses to which Triggs entered a guilty plea
were amended, the underlying facts did not change. All of the statements made
by the trial court concerning the underlying facts and patterns of behavior were
set forth in the pre-sentence investigation.1 The trial court may rely upon the facts
set forth in the pre-sentence investigation when determining the sentence to
impose. The sentence ordered was within the statutory range. Thus, the trial
court did not err and the assignment of error is overruled.
1
The pre-sentence investigation included a claim by Triggs’ mother-in-law that he forcibly raped her and
a claim by a different cousin that Triggs forcibly raped her. It also contained the victim’s statements that
Triggs had held her down and forcibly raped her causing pain and injury.
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Case No. 12-10-03
{¶5} Having found no error prejudicial to the appellant, the judgment of
the Court of Common Pleas of Putnam County is affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur in Judgment Only.
/jlr
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