State v. Rardain

2012 Ohio 2670

• Court: Ohio Court of Appeals
• Decided: June 14, 2012
• Docket: 2012-CA-0024
• Status: Published

Opinion

[Cite as State v. Rardain, 2012-Ohio-2670.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 2012-CA-0024 ROBERT W. RARDAIN : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 2008CR00770

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 14, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH OSWALT ROBERT W. RARDAIN Licking County Prosecuting Attorney Hocking Correctional Facility 20 South Second Street Box 59 Newark, OH 43055 16759 Snake Hollow Road Nelsonville, OH 45764-0059 [Cite as State v. Rardain, 2012-Ohio-2670.]

Gwin, P.J.

{¶1} Defendant-appellant Robert W. Rardain appeals a judgment of the Court of

Common Pleas of Licking County, Ohio, which overruled his motion to terminate his

allegedly void or voidable judgment and sentence. Appellant assigns a single error to

the trial court:

{¶2} “I. THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES

UPON THE APPELLANT IS CLEARLY AND CONVINCINGLY CONTRARY TO LAW,

AND THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE

SENTENCES. VIOLATING THE APPELLANT’S FOURTEENTH AMENDMENT OF

THE UNITED STATES CONSTITUION.(SIC)”

{¶3} The record indicates appellant was sentenced in June 2009 after he

changed his plea to guilty of three counts of rape, six counts of gross sexual imposition

and one count of importuning. There is no transcript of the sentencing hearing, but the

court stated in its written judgment entry it had considered the record, oral statements,

the principles and purposes of sentencing, and the balance of the seriousness and

recidivism factors. After consideration of the statutory factors, the court found that

prison is consistent with purposes of the Revised Code and appellant was not amenable

to any available community control sanction. The court sentenced appellant to an

aggregate of fourteen years. The court also informed appellant he was subject to post-

release control and would be classified as a Tier III sexual offender.

{¶4} On January 10, 2012, appellant filed his motion to terminate his sentence,

arguing the trial court should have made his sentences concurrent rather than running

some of them consecutively. Licking County, Case No. 2012-CA-0024 3

{¶5} Appellant argues he has an independently created liberty interest to be

sentenced to concurrent prison terms on all charges pursuant to R.C. 5145.01. He

asserts his equal protection rights were violated when the sentencing court imposed

consecutive prison terms. Appellant asserts the court records must demonstrate why

R.C. 5145.01 regarding duration of sentences was inapplicable, and he asserts

consecutive terms are contrary to law.

{¶6} The State suggests the matter is res judicata because appellant did not

raise these issues in a timely direct appeal. Appellant responds he was unaware of his

appellate rights and never pursued a direct appeal.

{¶7} We find we need not address the procedural issues here because

appellant cannot prevail on the merits. In State v. Smith, Fifth District Nos. 08CA42 and

08CA43, 2009-Ohio-1684, this court rejected the argument R.C. 5145.01 prevents trial

courts from imposing consecutive sentences. We cited State v. Kalish, 120 Ohio St. 3d

23, 2008-Ohio-4912, 896 N.E.2d 124 as holding that trial courts have full discretion to

impose a prison sentence within the statutory range and are not required to make

findings or state reasons for imposing maximum, consecutive, or more than the

minimum sentences. Smith, at paragraph 57.

{¶8} Appellant also argues his plea agreement is not enforceable because his

sentence is contrary to R.C. 5145.01. Appellant’s written plea of guilty states no

promises have been made to him as part of the plea agreement except that he would

receive an aggregate sentence of fourteen years. Because we find the sentence was

not contrary to law, we find no merit herein. Licking County, Case No. 2012-CA-0024 4

{¶9} Appellant has not moved the court to allow him to withdraw his guilty plea

and has not argued his plea was not voluntary.

{¶10} We find no constitutional violation or legal error herein.

{¶11} The assignment of error is overruled.

{¶12} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER WSG:clw 0604 [Cite as State v. Rardain, 2012-Ohio-2670.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : ROBERT W. RARDAIN : : : Defendant-Appellant : CASE NO. 2012-CA-0024

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed. Costs to

appellant.

_________________________________ HON. SHEILA G. FARMER