[Cite as State v. Mayle, 2016-Ohio-7499.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. CT2016-0014 JAMES MAYLE : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2015-0359
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 21, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD ANDERSON II DAVID SAMS Box 189 Box 40 Zanesville, OH 43702 West Jefferson, OH 43162 [Cite as State v. Mayle, 2016-Ohio-7499.]
Gwin, P.J.
{¶1} Appellant appeals the February 18, 2016 judgment entry of the Muskingum
Court of Common Pleas sentencing appellant to a prison term of nine (9) months.
Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On November 17, 2015, the Central Ohio Drug Task Force made a
controlled buy of marijuana from appellant James D. Mayle using a confidential informant.
Appellant was charged with the following in a November 25, 2015 indictment: trafficking
in drugs (marijuana), a felony of the fifth degree; permitting drug abuse, a felony of the
fifth degree; possession of drug paraphernalia, a fourth-degree misdemeanor; and
possession of drugs (marijuana), a minor misdemeanor.
{¶3} On January 11, 2016, appellant entered a plea of guilty to all four counts.
At the plea hearing, appellant stated he understood each of the two felonies carried a
possible penalty of six to twelve months imprisonment. At the plea hearing, the State of
Ohio recommended an aggregate sentence of six months in prison. Also at the plea
hearing, the trial court judge inquired of appellant, “And you understand the prosecutor’s
recommendation is not binding on this Court, I do not have to follow it?” Appellant
responded, “Yes, sir.”
{¶4} Also on January 11, 2016, appellant signed a “plea of guilty” form, stating
he withdrew his former not guilty plea and entered a plea of guilty to all four counts. The
form stated appellant understood the maximum penalties, including the potential prison
terms for each count. Further, that the parties agreed to a joint recommendation of
sentence of an aggregate term of six months in prison. In the plea of guilty form, appellant Muskingum County, Case No. CT2016-0014 3
specifically acknowledged he “understands any sentencing recommendation does not
have to be followed by the Court.” The trial court entered a judgment entry on January
15, 2016 on appellant’s plea of guilty, found the plea was a knowing, intelligent, and
voluntary waiver of his rights. The trial court deferred sentence and ordered a pre-
sentence investigation report (“PSI”).
{¶5} The trial court held a sentencing hearing on February 16, 2016 and noted
the joint recommendation of six months in prison. Counsel for appellant stated appellant
acknowledged his prior criminal record, as contained in the PSI, but was remorseful for
his actions. The trial court stated that, upon the review of the PSI, appellant had six prior
felonies. As such, the trial court declined to follow the joint recommendation. Rather, the
trial court sentenced appellant to a prison term of nine months on each felony count, a
thirty-day term of incarceration for the fourth-degree misdemeanor, and a fine for the
minor misdemeanor. The trial court further found the prison terms should be served
concurrently, for a total aggregate prison term of nine months.
{¶6} The trial court entered a sentencing entry on February 18, 2016, stating the
court considered the record, the plea recommendation, the principles and purpose of R.C.
2929.11, and the factors contained in R.C. 2929.12, in sentencing appellant to a prison
term of nine months. The trial court stated it made judicial findings that appellant has a
prior felony record.
{¶7} Appellant appeals the February 18, 2016 judgment entry of the Muskingum
County Court of Common Pleas and assigns the following as error: Muskingum County, Case No. CT2016-0014 4
{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT-
APPELLANT TO A LONGER PRISON TERM THAN JOINTLY RECOMMENDED BY
THE PARTIES.”
I.
{¶9} The Ohio Supreme Court recently announced the standard of review
appellate courts are to apply to felony sentences. In State v. Marcum, -- N.E.3d ----, 2016-
Ohio-1002, the Court held that R.C. 2953.08(G)(2)(a) compels us to modify or vacate
sentences if we find, by clear and convincing evidence, that the record does not support
any relevant findings under “division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.” Id.
Clear and convincing evidence is that measure or degree of proof which is more than a
mere “preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will produce in the
mind of the trier of facts a firm belief a conviction as to the facts sought to be established.
Id., citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).
{¶10} Appellant contends the trial court erred when it deviated from the jointly
recommended sentence. However, this Court has previously held that a trial court is not
bound by a recommendation proffered by the State. State v. Hartrum, 5th Dist. Licking
No. 2014 CA 00106, 2015-Ohio-3333, citing State v. Kitzler, 3rd Dist. Wyandot No. 16-
02-06, 2002-Ohio-5253. “A trial court does not err by imposing a sentence greater than
that recommended by the State when the trial court sufficiently explains to the defendant
the potential incarceration periods and sentencing ranges which may be imposed upon
conviction.” State v. Bailey, 5th Dist. Knox No. 05-CA-13, 2005-Ohio-5329. In this case, Muskingum County, Case No. CT2016-0014 5
in the “plea of guilty” form signed January 11, 2016 by appellant, appellant acknowledged
he understood the maximum sentence for each count. During the plea hearing on
January 11, 2016, the trial court appraised appellant of the nature of the offenses, the
ranges of penalties and fines provided for the offenses, the possibility of the imposition of
post-release control, and the potential consequences for a violation of post-release
control. Appellant stated he understood the nature of the charges against him, and the
maximum penalties for each count; specifically, that each of the two felonies carried a
possible penalty of six to twelve months imprisonment.
{¶11} During the plea colloquy, the trial court adequately informed appellant of the
possibility of receiving the maximum sentence despite the joint sentencing
recommendation, as the trial court asked appellant, “And you understand the prosecutor’s
recommendation is not binding on this Court, I do not have to follow it?” Appellant
responded, “Yes, sir.” Further, in the “plea of guilty” form, appellant specifically
acknowledged he “understands any sentencing recommendation does not have to be
followed by the Court.” Finally, during the sentencing hearing, the trial court adequately
explained why it sentenced appellant to the nine month sentence as a result of the trial
court’s review of the PSI and his six prior felonies. See State v. Hartrum, 5th Dist. Licking
No.
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[Cite as State v. Mayle, 2016-Ohio-7499.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. CT2016-0014 JAMES MAYLE : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2015-0359
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 21, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD ANDERSON II DAVID SAMS Box 189 Box 40 Zanesville, OH 43702 West Jefferson, OH 43162 [Cite as State v. Mayle, 2016-Ohio-7499.]
Gwin, P.J.
{¶1} Appellant appeals the February 18, 2016 judgment entry of the Muskingum
Court of Common Pleas sentencing appellant to a prison term of nine (9) months.
Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On November 17, 2015, the Central Ohio Drug Task Force made a
controlled buy of marijuana from appellant James D. Mayle using a confidential informant.
Appellant was charged with the following in a November 25, 2015 indictment: trafficking
in drugs (marijuana), a felony of the fifth degree; permitting drug abuse, a felony of the
fifth degree; possession of drug paraphernalia, a fourth-degree misdemeanor; and
possession of drugs (marijuana), a minor misdemeanor.
{¶3} On January 11, 2016, appellant entered a plea of guilty to all four counts.
At the plea hearing, appellant stated he understood each of the two felonies carried a
possible penalty of six to twelve months imprisonment. At the plea hearing, the State of
Ohio recommended an aggregate sentence of six months in prison. Also at the plea
hearing, the trial court judge inquired of appellant, “And you understand the prosecutor’s
recommendation is not binding on this Court, I do not have to follow it?” Appellant
responded, “Yes, sir.”
{¶4} Also on January 11, 2016, appellant signed a “plea of guilty” form, stating
he withdrew his former not guilty plea and entered a plea of guilty to all four counts. The
form stated appellant understood the maximum penalties, including the potential prison
terms for each count. Further, that the parties agreed to a joint recommendation of
sentence of an aggregate term of six months in prison. In the plea of guilty form, appellant Muskingum County, Case No. CT2016-0014 3
specifically acknowledged he “understands any sentencing recommendation does not
have to be followed by the Court.” The trial court entered a judgment entry on January
15, 2016 on appellant’s plea of guilty, found the plea was a knowing, intelligent, and
voluntary waiver of his rights. The trial court deferred sentence and ordered a pre-
sentence investigation report (“PSI”).
{¶5} The trial court held a sentencing hearing on February 16, 2016 and noted
the joint recommendation of six months in prison. Counsel for appellant stated appellant
acknowledged his prior criminal record, as contained in the PSI, but was remorseful for
his actions. The trial court stated that, upon the review of the PSI, appellant had six prior
felonies. As such, the trial court declined to follow the joint recommendation. Rather, the
trial court sentenced appellant to a prison term of nine months on each felony count, a
thirty-day term of incarceration for the fourth-degree misdemeanor, and a fine for the
minor misdemeanor. The trial court further found the prison terms should be served
concurrently, for a total aggregate prison term of nine months.
{¶6} The trial court entered a sentencing entry on February 18, 2016, stating the
court considered the record, the plea recommendation, the principles and purpose of R.C.
2929.11, and the factors contained in R.C. 2929.12, in sentencing appellant to a prison
term of nine months. The trial court stated it made judicial findings that appellant has a
prior felony record.
{¶7} Appellant appeals the February 18, 2016 judgment entry of the Muskingum
County Court of Common Pleas and assigns the following as error: Muskingum County, Case No. CT2016-0014 4
{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT-
APPELLANT TO A LONGER PRISON TERM THAN JOINTLY RECOMMENDED BY
THE PARTIES.”
I.
{¶9} The Ohio Supreme Court recently announced the standard of review
appellate courts are to apply to felony sentences. In State v. Marcum, -- N.E.3d ----, 2016-
Ohio-1002, the Court held that R.C. 2953.08(G)(2)(a) compels us to modify or vacate
sentences if we find, by clear and convincing evidence, that the record does not support
any relevant findings under “division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.” Id.
Clear and convincing evidence is that measure or degree of proof which is more than a
mere “preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will produce in the
mind of the trier of facts a firm belief a conviction as to the facts sought to be established.
Id., citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).
{¶10} Appellant contends the trial court erred when it deviated from the jointly
recommended sentence. However, this Court has previously held that a trial court is not
bound by a recommendation proffered by the State. State v. Hartrum, 5th Dist. Licking
No. 2014 CA 00106, 2015-Ohio-3333, citing State v. Kitzler, 3rd Dist. Wyandot No. 16-
02-06, 2002-Ohio-5253. “A trial court does not err by imposing a sentence greater than
that recommended by the State when the trial court sufficiently explains to the defendant
the potential incarceration periods and sentencing ranges which may be imposed upon
conviction.” State v. Bailey, 5th Dist. Knox No. 05-CA-13, 2005-Ohio-5329. In this case, Muskingum County, Case No. CT2016-0014 5
in the “plea of guilty” form signed January 11, 2016 by appellant, appellant acknowledged
he understood the maximum sentence for each count. During the plea hearing on
January 11, 2016, the trial court appraised appellant of the nature of the offenses, the
ranges of penalties and fines provided for the offenses, the possibility of the imposition of
post-release control, and the potential consequences for a violation of post-release
control. Appellant stated he understood the nature of the charges against him, and the
maximum penalties for each count; specifically, that each of the two felonies carried a
possible penalty of six to twelve months imprisonment.
{¶11} During the plea colloquy, the trial court adequately informed appellant of the
possibility of receiving the maximum sentence despite the joint sentencing
recommendation, as the trial court asked appellant, “And you understand the prosecutor’s
recommendation is not binding on this Court, I do not have to follow it?” Appellant
responded, “Yes, sir.” Further, in the “plea of guilty” form, appellant specifically
acknowledged he “understands any sentencing recommendation does not have to be
followed by the Court.” Finally, during the sentencing hearing, the trial court adequately
explained why it sentenced appellant to the nine month sentence as a result of the trial
court’s review of the PSI and his six prior felonies. See State v. Hartrum, 5th Dist. Licking
No. 2014 CA 00106, 2015-Ohio-3333. Accordingly, we find the trial court did not err in
rejecting the joint recommendation.
{¶12} Appellant argues the case of State v. Buell in analogous to the instant case.
10th Dist. Franklin No. 15AP-789, 2016-Ohio-2734. However, we find Buell
distinguishable from the instant case. Buell does not address whether a trial court must
follow a joint recommendation. Id. Rather, the issue in Buell was whether the trial court Muskingum County, Case No. CT2016-0014 6
abused its discretion when it denied Buell’s motion to withdraw his pre-sentence guilty
plea, which the Tenth District Court of Appeals noted “should be freely and liberally
granted.” Id. The trial court found a joint recommendation was never promised to Buell
by a previous trial judge. Id. The Court of Appeals found the conclusion that a joint
recommendation was never promised was an erroneous conclusion and likely impacted
the trial court judge’s evaluation of whether the defendant had a reasonable and
legitimate basis for wanting to withdraw his guilty plea. Id. Thus, the facts and legal
rationale in Buell are inapplicable to the instant case where appellant pled guilty to the
offenses, was informed of the maximum penalties for the charges, and acknowledged
during the plea and in the plea form that he understood the trial court was not required to
follow the joint recommendation for sentence.
{¶13} Though appellant cites R.C. 2953.08(D)(1) in conjunction with Buell, R.C.
2953.08(D)(1) is not cited or mentioned in Buell. R.C. 2953.08(D)(1) does not require a
trial court to follow a joint recommendation and, as this Court has previously held, R.C.
2953.08(D)(1) provides that a case is not properly reviewable on appeal when a sentence
is jointly recommended. State v. Owens, 5th Dist. Perry No. 15-CA-00015, 2016-Ohio-
1203.
{¶14} In his brief, appellant also contends the trial court’s citation of six previous
felonies in refusing to follow the joint recommendation was erroneous because there was
no indication when the felonies occurred, whether appellant served prison time for these
felonies, and that R.C. 2929.13(B)(1) prohibits a prison term for fifth degree felonies
unless certain exceptions are met. Appellant is correct that R.C. 2929.13(B)(1) provides
that an offender convicted of a non-violent fourth or fifth degree felony shall be sentenced Muskingum County, Case No. CT2016-0014 7
to community control. However, this mandatory community control only applies if, “the
offender previously has not been convicted of or pleaded guilty to a felony offense.” R.C.
2929.13(B)(1)(a)(i).
{¶15} In this case, there is no question appellant has prior felony convictions, as
these prior felony convictions were detailed in the PSI and acknowledged by counsel for
appellant at appellant’s sentencing hearing. Pursuant to the plain language of R.C.
2929.13(B)(1), there is no requirement that the trial court undertake a colloquy during the
sentencing hearing as to the dates of the felonies or circumstances surrounding the
felonies. In this case, the trial court, after the plea hearing obtained a PSI prior to the
sentencing hearing, with the pertinent information contained in it. The nine month prison
sentence is within the range provided for a fifth degree felony. Further, R.C.
2929.13(B)(1) requires only a prior felony conviction, the statute does not require a prior
prison sentence to avoid the presumption of community control. State v. Mann, 5th Dist.
Coshocton No. 2012CA0018, 2013-Ohio-2133; State v. Kerr, 5th Dist. Ashland No. 13
COA 044, 2014-Ohio-2013.
{¶16} We find the sentence in this case is not clearly and convincingly contrary to
law. The sentence was within the statutory range for a fifth-degree felony. The trial court
also reviewed and considered the PSI, as well as the statements of appellant and his
counsel. The trial court noted appellant’s prior felony record at sentencing. See State v.
Riter, 5th Dist. Stark No. 2013CA0011, 2014-Ohio-1465. Muskingum County, Case No. CT2016-0014 8
{¶17} Based on the foregoing, appellant’s assignment of error is overruled. The
February 18, 2016 judgment entry of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur