State v. Little

2012 Ohio 2895

Opinion

[Cite as State v. Little, 2012-Ohio-2895.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2011-0057 ANTHONY S. LITTLE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Common Pleas Court, Case No. CR2011-0077

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 25, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT L. SMITH DAVID A. SAMS Assistant Prosecuting Attorney Box 40 27 North Fifth Street W. Jefferson, Ohio 43162 Zanesville, Ohio 43701 Muskingum County, Case No. CT2011-0057 2

Hoffman, J.

{¶1} Defendant-appellant Anthony S. Little appeals his sentence entered by the

Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE

{¶2} On March 23, 2011, Appellant was indicted for rape of a child under the

age of thirteen, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree.

{¶3} On September 19, 2011, Appellant entered a plea of guilty to an amended

charge of sexual battery, in violation of R.C. 2907.03(A)(1), a felony of the third degree.

Pursuant to the plea agreement, the State agreed to make no recommendation as to

sentencing.

{¶4} On October 24, 2011, the trial court conducted a sentencing hearing,

during which the trial court ordered Appellant serve a mandatory prison term of sixty

months. The court also designated Appellant a Tier II sexual offender.

{¶5} Appellant now appeals, assigning as error:

{¶6} “I. THE TRIAL COURT ERRED WHEN IMPOSING A MAXIMUM

SENTENCE UPON DEFENDANT-APPELLANT CONTRARY TO THE OVERRIDING

PURPOSES OF FELONY SENTENCING UNDER HB 86.”

{¶7} Appellant asserts the trial court erred in imposing the maximum sentence

contrary to the minimum sentence presumption established in H.B. 86, in the absence

of R.C. 2929.12 factors which would overcome the presumption. As a result, Appellant

argues his sentence is contrary to the newly enacted H.B. 86; therefore, must be

vacated and he should be resentenced. We disagree. Muskingum County, Case No. CT2011-0057 3

{¶8} H.B. 86 became effective September 30, 2011, sixteen days after the

alleged offense, but prior to the sentencing herein. The enacted legislation reads at

Section 4,

{¶9} "The amendments to sections 926.99, 1333.99, 1707.99, 1716.99,

2909.03, 2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913. 31,

2913.32, 2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46,

2913.47, 2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917. 21, 2917.31, 2917.32,

2921.13, 2921.41, 2923.31, and 2981.07, division (B) of section 2929.13, and division

(A) of section 2929.14 of the Revised Code that are made in this act apply to a person

who commits an offense specified or penalized under those sections on or after the

effective date of this section and to a person to whom division (B) of section 1.58 of the

Revised Code makes the amendments applicable.

{¶10} "The provisions of sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,

2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913. 32,

2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,

2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917. 31, 2917.32, 2921.13,

2921.41, 2923.31, and 2981.07 of the Revised Code in existence prior to the effective

date of this section shall apply to a person upon whom a court imposed sentence prior

to the effective date of this section for an offense specified or penalized under those

sections. The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,

2909. 05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.32,

2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,

2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917.31, 2917. 32, 2921.13, Muskingum County, Case No. CT2011-0057 4

2921.41, 2923.31, and 2981.07 of the Revised Code that are made in this act do not

apply to a person who upon whom a court imposed sentence prior to the effective date

of this section for an offense specified or penalized under those sections."

{¶11} As set forth above, Appellant entered a plea to sexual battery, in violation

of R.C. 2907.03(A)(1). H.B. 86 did not amend or change the statute for which Appellant

was convicted. Further, H.B. 86, Section 4 does not specifically include sexual battery

as one of the offenses for which the legislation is to be applied retroactively.

{¶12} 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.

{¶13} 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.

{¶14} 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. Muskingum County, Case No. CT2011-0057 5

{¶15} 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.

{¶16} Appellant's sentence in the Muskingum County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ John W. Wise _____________________ HON. JOHN W. WISE Muskingum County, Case No. CT2011-0057 6

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ANTHONY S. LITTLE : : Defendant-Appellant : Case No. CT2011-0057

For the reason stated in our accompanying Opinion, Appellant's sentence in the

Muskingum County Court of Common Pleas is affirmed. Costs to Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise______________________ HON. JOHN W. WISE