State v. Miller

[Cite as State v. Miller, 2014-Ohio-1803.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 13CA5
vs. :
AARON S. MILLER, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Michael D. Hess, 214 South Court Street, Ste. 200, P.O.
Box 682, Circleville, Ohio, 43113
COUNSEL FOR APPELLEE: Judy C. Wolford, Pickaway County Prosecuting Attorney,
and Jayme Hartley Fountain, Pickaway County Assistant
Prosecuting Attorney, 203 South Scioto Street, P.O. Box
910, Circleville, Ohio 43113
____________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-21-14
ABELE, P.J.
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment of
conviction and sentence. Aaron S. Miller, defendant below and appellant herein, pled guilty to
(1) breaking and entering in violation of R.C. 2911.13(A), and (2) theft in violation of R.C.
2913.02(A)(1). Appellant assigns the following error for review:
“THE LOWER COURT ERRED IN SENTENCING
DEFENDANT-APPELLANT TO THE MAXIMUM ON EACH
COUNT AND IN SENTENCING DEFENDANT-APPELLANT
PICKAWAY, 13CA5 2
TO CONSECUTIVE SENTENCES.”
{¶ 2} On July 13, 2012, the Pickaway County Grand Jury returned an indictment that
charged appellant with the aforementioned offenses, as well as (1) (count one) burglary in
violation of R.C. 2911.12(A) (1), (2) (count two) grand theft of a firearm in violation of R.C.
2913.02(A)(1), (3) (count three) possession of criminal tools in violation of R.C. 2923.24(A),
and (4) (count four) attempted theft of a motor vehicle in violation of R.C.
2923.02(A)/2913.02(A)(1). Appellant initially pled not guilty on all counts.
{¶ 3} The parties apparently reached a plea agreement whereby appellant would plead
guilty to theft and breaking and entering in exchange for the dismissal of the first four counts.
At the February 27, 2013 hearing the following colloquy occurred between the court and counsel:
“[Assistant Prosecutor]: Thank you, your honor, my understanding is that Mr.
Miller is going to be pleading guilty to counts five and six, breaking and entering
and theft, both of these are F-5's. [Defense Counsel] indicates Mr. Miller wants to
go forward with sentencing today, recommend twelve months consecutive on each
sentence, dismiss the balance of those charges. (Emphasis added.)
{¶ 4} The Court: [Defense Counsel]?
{¶ 5} [Defense Counsel]: That’s the agreement, your honor.”
{¶ 6} A few moments later, the trial court asked appellant if he understood that the State
would ask for the maximum penalty that "would total of twenty-four months." Appellant
answered in the affirmative. The trial court then (1) sentenced appellant to serve twelve months
on each count, (2) ordered the sentence to be served consecutively, and (3) dismissed the four
remaining counts. This appeal followed.
{¶ 7} Appellant asserts in his assignment of error that the trial court erred by (1)
imposing maximum sentences for these offenses, and (2) ordering that the sentences be served
PICKAWAY, 13CA5 3
consecutively. R.C. 2953.08(D)(1) prohibits an appeal of a sentence that is authorized by law
and is part of an agreed plea. See State v. Estep, 4th Dist. Lawrence No. No. 11CA7,
2012-Ohio-6296, at ¶9; State v. Brown, 4th Dist. Athens No. 07CA4, 2008-Ohio-175, at ¶7. It is
unclear from the record whether the proposed sentences are part of the underlying plea
agreement, or if the State simply warned appellant that maximum, consecutive sentences would
be its recommendation.
{¶ 8} However, even if maximum consecutive sentences are not part of the plea
agreement, we would hold that the appellant is barred from challenging them under the invited
error doctrine. At the change of plea hearing, appellant was obviously aware that he would
receive twenty-four months imprisonment. Appellant consented to the agreement and pled
guilty on counts five and six of the indictment in exchange for a dismissal of the first four counts.
Furthermore, on February 27, 2013 a “Petition to Enter Plea of Guilty” was filed with the trial
court. That “Petition” bears appellant’s signature and informs him that (1) he could receive the
maximum penalty of twelve months imprisonment on counts five and six, and (2) the sentences
could be served consecutively.
{¶ 9} The “invited error doctrine” prohibits a party from taking advantage of an error
that he, himself induced a court to make. State v. Hicks, 4th Dist. Adams No. 11CA933,
2012–Ohio–3831, at ¶11; State v. Rizer, 4th Dist. Meigs No. 10CA3, 2011–Ohio–5702, at ¶ 27.
This doctrine applies to errors that arise from negotiated plea agreements. See State v. Barnett,
4th Dist Scioto No. 12CA3527, 2013-Ohio-3838, at ¶9; State v. Marcum, 4th Dist. Hocking Nos.
12CA22, 12CA26, 2013–Ohio–2189, at ¶10. Here, appellant was aware that multiple,
consecutive sentences could be imposed. If not explicitly part of the plea agreement, appellant
PICKAWAY, 13CA5 4
at least implicitly signaled his willingness to accept that punishment in exchange for the
dismissal of the four remaining counts. Appellant cannot be heard now to complain about a
sentence that he willingly accepted.
{¶ 10} For all of these reasons, we find no merit to appellant’s assignment of error and it
is hereby overruled. Accordingly, we hereby affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Hoover, J.: Dissents.
{¶ 11} I believe that the trial court should have made findings on the record for imposing
the consecutive sentences. This Court stated in State v. Black, 4th Dist. Ross No. 12CA3327,
2013-Ohio-2105 at paragraph 57:
Thus, R.C. 2929.14(C)(4), requires the sentencing court to conduct a three-step
analysis in order to impose a consecutive sentence. Midlam, 4th Dist. No. 12CA2,
2012–Ohio–6299, at ¶ 9. In each step of the analysis, the sentencing court must
“find” the relevant factors before imposing consecutive sentences. Id.; R.C.
2929.14(C)(4).
{¶ 12} In this case, the trial court did not "find" the relevant factors before imposing
consecutive sentences; therefore, I respectfully dissent.
[Cite as State v. Miller, 2014-Ohio-1803.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the
costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway
County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted,
it is continued for a period of sixty days upon the bail previously posted. The purpose of said
stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, J.: Concurs in Judgment & Opinion
Hoover, J.: Dissents with Dissenting Opinion
For the Court
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.