State v. Perkins

2017 Ohio 154

• Court: Ohio Court of Appeals
• Decided: January 17, 2017
• Docket: 2015-T-0115
• Status: Published

Opinion

[Cite as State v. Perkins, 2017-Ohio-154.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2015-T-0115 - vs - :

CHRISTOPHER G. PERKINS, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 00436.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).

Rhonda L. Granitto Santha, 6401 State Route 534, Farmington, OH 44491 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Christopher G. Perkins, appeals his sentence following his

guilty plea to aggravated burglary. We affirm.

{¶2} Perkins was indicted on one count of aggravated burglary and one count

of robbery for stealing a woman’s purse from her home. He pleaded guilty to

aggravated burglary and the state dismissed the robbery charge with court approval. The parties jointly recommended a three-year prison term, and Perkins waived his right

to a presentence investigation. The trial court accepted Perkins’ guilty plea and

imposed the recommended prison term.

{¶3} Appellant’s sole assignment of error asserts: “Appellant was denied the

opportunity to present evidence to overcome the presumption of imprisonment for his

pled offense by the Trial Court’s failure to request a pre-sentence investigation.”

{¶4} R.C. 2953.08 sets forth certain rights and grounds on which to appeal a

felony conviction. Whereas R.C. 2953.08(D)(1) sets forth an exception to the right to

appeal: “A sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the

defendant and the prosecution in the case, and is imposed by a sentencing judge.”

{¶5} “If all three conditions are satisfied, the defendant’s sentence is not

reviewable.” State v. Wardlow, 12th Dist. Butler No. CA2014-01-011, 2014-Ohio-5740,

¶10, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶16.

{¶6} As for the first condition, whether a sentence is authorized by law, “a

sentence is ‘authorized by law’ and is not appealable within the meaning of R.C.

2953.08(D)(1) only if it comports with all mandatory sentencing provisions. A trial court

does not have the discretion to exercise its jurisdiction in a manner that ignores

mandatory statutory provisions. See State v. Simpkins, 117 Ohio St.3d 420, 2008 Ohio

1197, 884 N.E.2d 568, ¶27 (‘Every judge has a duty to impose lawful sentences’).”

Underwood, supra, at ¶20.

{¶7} Perkins does not allege that any mandatory sentencing provisions were

ignored in his case. Notwithstanding, a sentence is “authorized by law” for R.C.

2 2953.08(D)(1) purposes if it is within the statutory range of available sentences. State

v. Freeman, 7th Dist. Mahoning No. 14MA25, 2014-Ohio-5725, ¶26.

{¶8} Perkins was convicted of aggravated burglary, a first-degree felony in

violation of R.C. 2911.11. R.C. 2929.14(A)(1) dictates that if the court is required or

elects to impose a prison term for a felony of the first degree, “the prison term shall be

three, four, five, six, seven, eight, nine, ten, or eleven years.” The trial court’s imposition

of the three-year sentence was within the permissible range, and accordingly, the first

condition is satisfied.

{¶9} The second and third conditions are also satisfied since the sentencing

judge imposed the jointly recommended prison term consistent with Perkins’ written

guilty plea negotiated with the state.

{¶10} Accordingly, Perkins’ sentence is not subject to review pursuant to R.C.

2953.08(D)(1), and as such, his sole assigned error lacks merit. The judgment of the

Trumbull County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., concurs in judgment only.

COLLEEN MARY O’TOOLE, concurs in judgment only.