State v. Vandyne

[Cite as State v. Vandyne, 2022-Ohio-2640.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2021-0042
:
DAVID VANDYNE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2021-928
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 2, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD L. WELCH RYAN AGEE
MUSKINGUM COUNTY PROSECUTOR 100 S. Lafayette St.
Camden, OH 45311
TAYLOR P. BENNINGTON
27 North 5th Street – P.O. Box 189
Zanesville, OH 43701
Muskingum County, Case No. CT2021-0042 2
Delaney, J.
{¶1} Defendant-Appellant David Vandyne appeals the July 27, 2021 sentencing
judgment entry of the Muskingum County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
Indictment
{¶2} On February 18, 2021, the Muskingum County Grand Jury indicted
Defendant-Appellant David Vandyne on three counts: (1) theft, a fourth-degree felony in
violation of R.C. 2913.02(A)(1); (2) tampering with records, a third-degree felony in
violation of R.C. 2913.42(A)(1); and (3) theft, a fifth-degree felony in violation of R.C.
2913.02(A)(1). He entered a plea of not guilty to the charges.
Plea Hearing
{¶3} On June 9, 2021, Vandyne came before the trial court to withdraw his plea
of not guilty and to enter a plea of guilty to Count 1 of the indictment. (T. 3). The State
outlined the plea agreement between it and Vandyne. Upon Vandyne’s plea of guilty to
Count 1 as contained in the indictment, the parties agreed to a joint recommendation that
Vandyne be placed on community control for a period of two years. (T. 3). Vandyne
agreed to make restitution in the amount of $12,000 to be paid in full within one year from
the date of sentencing. (T. 3). The State agreed to dismiss the second and third counts
in the indictment. (T. 3).
{¶4} The trial court conducted the plea colloquy. (T. 4-11). The trial court informed
Vandyne that for the offense of fourth-degree felony theft, the possible penalty was six
to eighteen months of imprisonment in one month increments and a fine up to
$5,000. (T. 5). The trial court also asked Vandyne:
Muskingum County, Case No. CT2021-0042 3
THE COURT: The State of Ohio is recommending that you be placed upon
community control, and they agree to dismiss Counts 2 and 3. Is that your
understanding?
***
THE COURT: And you understand that the prosecutor’s recommendation
is not binding on the Court, I do not have to follow it?
THE DEFENDANT: Yes, Your Honor.
(T. 8).
{¶5} The State next reviewed the underlying facts with the trial court. Until
December 15, 2020, Vandyne had been employed as a car salesman at a car dealership
located in Zanesville, Ohio. On November 28, 2020, a customer purchased a car and paid
an $8,000 down payment. Vandyne retained the down payment without recording it or
putting it in his employer’s vault. On December 12, 2020, a customer purchased a car
and paid a $4,000 down payment. Vandyne again retained the down payment and did
not report it or put it in his employer’s vault. (T. 11).
{¶6} At the conclusion of the plea colloquy, the trial court accepted Vandyne’s
plea of guilty. (T. 11). The trial court ordered a presentence investigation and set the
matter for a sentencing hearing. (T. 12).
Sentencing Hearing
{¶7} The matter came on for sentencing on July 26, 2021. The State noted at
the hearing that as a felony of the fourth degree, there was a presumption of community
control and there was a joint recommendation for community control. (T. 3).
Muskingum County, Case No. CT2021-0042 4
{¶8} On Vandyne’s behalf, his counsel told the trial court that Vandyne was a
college graduate with degrees in financing and engineering. He was formerly employed
at U.S. Bank where he was once named banker of the year, but he stole money from the
bank’s vault and arrested. He was placed on probation, which he completed. (T. 4).
Counsel said that Vandyne was going to start taking online classes to address his
gambling addiction. (T. 5). He had family support in the area. (T. 5). Vandyne told the trial
court that he accepted responsibility for his actions and was going to reimburse the car
dealership for the missing funds. (T. 6).
{¶9} The trial court reviewed the presentence investigation on the record. It
stated:
You do have that prior conviction out of Fairfield County from 2015. You
were sentenced to five years. That’s where you admitted to stealing
$70,000 from your employer, U.S. Bank, where you were assistant
manager. And you were gambling the money away. And according to your
probation officer down there, you were a constant problem, a profuse liar,
and a manipulator. You were pv’d and sentenced to 13 days in jail in
October of 2017 after being caught back in the Hollywood Casino, violating
curfew and failing to pay your restitution and giving your mother problems.
After five years of supervision, you only paid about $2,500 towards your
restitution. * * * your probation was unsuccessfully terminated on November
17th of 2020 because the time had ran [sic] out. Eleven days later, you were
stealing the money in this case.
(T. 6-7).
Muskingum County, Case No. CT2021-0042 5
{¶10} After reviewing the presentence investigation report, the trial court
proceeded to sentencing. It found that Vandyne was not amenable to community control
and imposed a 16-month sentence. (T. 7). Vandyne was ordered to pay the agreed
restitution of $12,000. (T. 7). The trial court summarized:
Based upon your history in that last case and what happened since then, I
don’t trust you to pay him back in a year and I don’t trust you to be on
community control. That’s why I’m giving you this sentence.
(T. 7).
{¶11} The sentence was journalized on July 27, 2021. It is from this sentencing
judgment entry that Vandyne now appeals.
ASSIGNMENT OF ERROR
{¶12} Vandyne raises one Assignment of Error:
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ACCEPTING
VANDYNE’S JOINTLY RECOMMENDED SENTENCE.”
ANALYSIS
{¶14} Vandyne argues in his sole Assignment of Error that the trial court abused
its discretion when it did not accept the jointly-recommended sentence. We disagree.
{¶15} A “recommended” sentence is just as it sounds: “a nonbinding
recommendation to the court, which the court is not required to accept or comment on.”
State v. Link, 5th Dist. Licking No. 21CA0059, 2022-Ohio-2067, 2022 WL 2188993, ¶ 54
quoting State v. Harvey, 8th Dist. Cuyahoga No. 107168, 2019-Ohio-715, 2019 WL
989892, ¶ 7. Trial courts may reject plea agreements and they are not bound by a jointly-
recommended sentence. State v. Link, 5th Dist. Licking No. 21CA0059, 2022-Ohio-2067,
Muskingum County, Case No. CT2021-0042 6
2022 WL 2188993, ¶ 55 citing State v. Penrod, 5th Dist. Licking No. 16-CA-83, 2017-
Ohio-7732, ¶ 16, citing State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674,
831 N.E.2d 430, ¶ 6; State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 28. The decision to accept or reject a plea bargain rests solely within the discretion
of the trial court. State v. Jefferson, 5th Dist. Delaware No. 11 CAA 04 0033, 2012-Ohio-
148, ¶ 50, citing State v. Asberry, 173 Ohio App.3d 443, 2007-Ohio-5436, 878 N.E.2d
1082.
{¶16} Sentencing likewise is within the sound discretion of the trial court. State v.
Mathews, 8 Ohio App.3d 145, 456 N.E.2d 539 (1982). In this case, the record shows the
trial court told Vandyne before sentencing that it was not bound by the joint
recommendation for sentencing. The trial court also correctly informed Vandyne prior to
sentencing that the possible penalty for a fourth-degree felony was six to eighteen months
of imprisonment in one-month increments. After the trial court exercised its discretion and
rejected the jointly-recommended sentence at the sentencing hearing, it imposed a prison
sentence of sixteen months, which is within the statutory sentencing guidelines. This
Court has consistently held that a trial court does not err by imposing a sentence greater
than a sentence recommended by the state when the trial court forewarns the defendant
of the range of penalties which may be imposed upon conviction. State v. Parks, 5th Dist.
Licking No. 16-CA-4, 2016-Ohio-5745, ¶ 23, citing State v. Buchanan, 154 Ohio App.3d
250, 2003-Ohio-4772, 796 N.E.2d 1003.
{¶17} Upon this record, we find no error by the trial court and overrule Vandyne’s
sole Assignment of Error.
Muskingum County, Case No. CT2021-0042 7
CONCLUSION
{¶18} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.