State v. Goler

2013 Ohio 661

Opinion

[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