State v. Lowery

2011 Ohio 3287

Opinion

[Cite as State v. Lowery, 2011-Ohio-3287.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

: STATE OF OHIO Plaintiff-Appellee : C.A. CASE NO. 24332

vs. : T.C. CASE NO. 06-CR-159

: (Criminal Appeal from CHARLES B. LOWERY Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of June, 2011.

Mathias H. Heck, Jr., Johnna M. Shia, Atty Reg. No. 0067685, Assistant Prosecuting Attorney, P.O. Box 937, 301 West Third Street, Dayton, OH 45422 Attorneys for Plaintiff-Appellee

Charles B. Lowery, #A536-057, Warren County Correctional Institution, P.O. Box 120, State Route 63, Lebanon, OH 45036 Defendant-Appellant, Pro Se

GRADY, P.J.:

{¶ 1} Defendant, Charles B. Lowery, appeals from a final order

denying Lowery’s request to modify his prison sentences.

{¶ 2} Lowery was found guilty in 2006 of two counts of

aggravated robbery, R.C. 2911.01(A)(2), following a jury trial.

The trial court imposed mandatory prison terms of four years for 2

those first degree felony sentences, to be served consecutively.

We affirmed Lowery’s convictions and the sentences they involved

on direct appeal. State v. Lowery, Montgomery App. No. 21879,

2007-Ohio-6608.

{¶ 3} On or about October 20, 2010, Lowery sent a letter to

the trial court, asking the court to modify his two sentences for

aggravated robbery. Lowery attached to the letter an excerpt from

a transcript of his sentencing hearing, in which the court expressed

concern over the “escalating pattern of seriousness and

dangerousness” portrayed by Lowery’s criminal conduct. The court

made reference to a presentence investigation report indicating

that Lowery had two prior felony convictions; a 1989 conviction

for receiving stolen property and a 1990 conviction for aggravated

burglary. Because of those prior felony one and two convictions,

the court imposed mandatory prison terms for his two aggravated

robbery offenses.

{¶ 4} In his letter, Lowery contended that the presentence

investigation report on which the court relied was incorrect.

Lowery alleged that his 1989 conviction was on a reduced charge

of unauthorized use of a motor vehicle, R.C. 2913.03, which in

1989 was not a felony but a first degree misdemeanor. Lowery asked

“that you will resentence me, if only to run the two (2) four (4)

year sentences together.” 3

{¶ 5} The trial court treated Lowery’s request as a motion,

which the court denied. The court found that Lowery and his counsel

had been afforded an opportunity to review the presentence

investigation report prior to sentencing, pursuant to R.C.

2951.03(B)(2), but did not then object that the contents of the

report were incorrect. The court further found that it lacked

jurisdiction to modify Lowery’s two sentences because they are

valid sentences which have been executed. Lowery filed a notice

of appeal from the trial court’s judgment.

ASSIGNMENT OF ERROR

{¶ 6} “TRIAL JUDGE ENTERED FALSE INFORMATION AT SENTENCING

AND ALLOWED IT TO BE SOLE REASON FOR SENTENCE GIVEN.”

{¶ 7} The two aggravated robbery offenses of which Lowery was

convicted are first degree felonies. R.C. 2911.01(A)(2), (C).

If a court elects or is required to impose a prison term for a

first degree felony offense, the court is authorized to impose

a term of three, four, five, six, seven, eight, nine, or ten years.

R.C. 2929.14(A)(1).

{¶ 8} The four year terms the court imposed are well within,

and are in fact on the lower end, of the sentencing range authorized

by R.C. 2929.14(A)(1). Those sentences are clearly not contrary

to law. Therefore, on direct review of convictions in which those

sentences were imposed, we may reverse Defendant’s sentences only 4

on a finding that the court abused its discretion when it imposed

those sentences. State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912.

{¶ 9} Absent specific statutory authority, the trial court

lacked jurisdiction to modify Defendant’s valid, executed prison

sentence, State v. Hayes (1993), 86 Ohio App.3d 110; State v.

Addison (1987), 40 Ohio App.3d 7, especially after this court

had affirmed Defendant’s sentence. State v. Young, Montgomery

App. No. 20813, 2005-Ohio-5584. The trial court correctly

overruled Defendant’s motion to modify his sentence for that

reason.

{¶ 10} Defendant’s assignment of error is overruled. The

judgment of the trial court will be affirmed.

Fain, J. and Froelich, J. concur.

Copies mailed to:

Johnna M. Shia, Esq. Charles B. Lowery Hon. Dennis J. Langer