State v. McRae

2011 Ohio 1639

• Court: Ohio Court of Appeals
• Decided: March 31, 2011
• Docket: CT10-0037
• Status: Published

Opinion

[Cite as State v. McRae , 2011-Ohio-1639.]

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. CT10-0037 JAMES MCCRAE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2009-0089

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 31, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH ROBERT D. ESSEX Assistant Prosecuting Attorney 1654 East Broad Street Suite 302 Muskingum County, Ohio Columbus, Ohio 43203 27 North Fifth Street, P.O.Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT10-0037 2

Hoffman, J.

{¶1} Defendant-appellant James McCrae appeals his sentence entered by the

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

STATEMENT OF THE CASE1

{¶2} On April 26, 2010, Appellant entered pleas of guilty to one count of

involuntary manslaughter, in violation of R.C. 2903.04(A), with a firearm specification;

and one count of having a weapon under disability, in violation of R.C. 2923.13(A). The

parties jointly recommended a fifteen year prison sentence.

{¶3} Following a hearing, the trial court imposed the maximum, consecutive

prison sentence totaling eighteen years.

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

{¶5} “I. IN LIGHT OF OREGON V. ICE, THE TRIAL COURT ERRED IN

FAILING TO MAKE THE REQUIRED FINDINGS UNDER O.R.C. 2929.14(E)(4) TO

JUSTIFY CONSECUTIVE SENTENCES.”

{¶6} Appellant asserts in the wake of the United States Supreme Court

decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, the Ohio

Supreme Court decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-

Ohio-856, has been overruled and the fact finding provisions of R.C. 2929.14(E)(4)

have been resurrected. We disagree.

{¶7} The Ohio Supreme Court recently addressed this issue in State v. Hodge

(2010), 128 Ohio St.3d 1, holding:

1 A rendition of the facts pertaining to the appeal is unnecessary for our disposition. Muskingum County, Case No. CT10-0037 3

{¶8} “The United States Supreme Court's decision in Oregon v. Ice (2009), 555

U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio's former consecutive-

sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held

unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.”

{¶9} The Ohio Supreme Court concluded trial court judges are not obligated to

engage in judicial fact-finding prior to imposing consecutive sentences unless the

General Assembly enacts new legislation requiring findings be made.

{¶10} Accordingly, Appellant’s sole assignment of error is overruled, and the

judgment of the Muskingum County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, 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. CT10-0037 4

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

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JAMES MCCRAE : : Defendant-Appellant : Case No. CT10-0037

For the reason stated in our accompanying Opinion, the judgment of 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