State v. Rogers

2013 Ohio 2057

Opinion

[Cite as State v. Rogers, 2013-Ohio-2057.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : KENNETH G. ROGERS : Case No. CT2012-0053 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2012-0178

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 16, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellee

RON WELCH VALERIE K. WIGGINS 27 North Fifth Street P.O. Box 116 Zanesville, OH 43701 Roseville, OH 43777-0116 Muskingum County, Case No. CT2012-0053 2

Farmer, J.

{¶1} On August 22, 2012, appellant, Kenneth Rogers, pled guilty to a bill of

information charging him with three counts of breaking and entering in violation of R.C.

2911.13 and three counts of theft in violation of R.C. 2913.02. The trial court merged

the theft counts with the breaking and entering counts and the state elected to have

appellant sentenced on the latter three counts. By sentencing entry filed October 9,

2012, the trial court sentenced appellant to an aggregate term of one year in prison.

{¶2} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶3} "THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

SENTENCED THE DEFENDANT-APPELLANT TO A ONE-YEAR PRISON TERM

INSTEAD OF IMPOSING COMMUNITY CONTROL SANCTIONS AS REQUIRED BY

R.C. §2929.13(B)(1)(a)."

{¶4} Appellant claims the trial court erred in sentencing him to one year in

prison for three counts of breaking and entering in the fifth degree as

R.C.2929.13(B)(1)(a) mandates that he receive community control sanctions. We

disagree.

{¶5} R.C. 2929.13(B)(1)(a) states the following:

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if

an offender is convicted of or pleads guilty to a felony of the fourth or fifth Muskingum County, Case No. CT2012-0053 3

degree that is not an offense of violence or that is a qualifying assault

offense, the court shall sentence the offender to a community control

sanction of at least one year's duration if all of the following apply:

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation

and correction pursuant to division (B)(1)(c) of this section, the

department, within the forty-five-day period specified in that division,

provided the court with the names of, contact information for, and program

details of one or more community control sanctions of at least one year's

duration that are available for persons sentenced by the court.

(iv) The offender previously has not been convicted of or pleaded

guilty to a misdemeanor offense of violence that the offender committed

within two years prior to the offense for which sentence is being imposed.

{¶6} Appellant pled to a bill of information of three counts of breaking and

entering and three counts of theft. The trial court merged the theft counts with the

breaking and entering counts and the state elected to have appellant sentenced on the

breaking and entering counts, felonies in the fifth degree. The sentencing entry filed

October 9, 2012 reflects the fact that appellant's plea was made pursuant to a

negotiated plea. Muskingum County, Case No. CT2012-0053 4

{¶7} During the plea hearing held on August 22, 2012, the prosecutor

explained the negotiated plea and stated, "[i]n exchange for the defendant's plea, the

State of Ohio is recommending that the defendant be sentenced to one year in prison,

and I believe the Court has already been provided with a waiver and plea of guilty to the

bill of information." August 22, 2012 T. at 3. Following this recommendation of one

year in prison and the trial court's explanation of all the possible penalties, appellant

entered his guilty pleas. Id. at 5-8, 11-12.

{¶8} Despite this plea agreement, defense counsel during the sentencing

hearing objected to the one year prison term, arguing R.C. 2929.13 and the fact that

"my client has not been convicted or plead guilty to a felony offense or to an offense of

violence that is a misdemeanor that was committed within two years prior to the offense

for which the sentence is now being imposed." October 1, 2012 T. at 5. Thereafter, the

trial court specifically found, and appellant agreed, that appellant had a prior felony of

burglary and theft in 2009, a prior breaking and entering, theft, and criminal damaging in

2005, a prior domestic violence in 2004, and various misdemeanor offenses involving

theft, passing bad checks, domestic violence, and a "sundry of driving offenses." Id. at

6-7.

{¶9} Pursuant to R.C. 2929.13(B)(1)(a)(i), the trial court was not mandated to

sentence appellant to community control sanctions.

{¶10} Upon review, we find the trial court did not err in sentencing appellant to

one year in prison pursuant to the negotiated plea. See State v. Leasure, 5th Dist. No.

2011-COA-031, 2012-Ohio-318.

{¶11} The sole assignment of error is denied. Muskingum County, Case No. CT2012-0053 5

{¶12} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.

s/ Sheila G. Farmer________________

_s/ W. Scott Gwin_________________

_s/ John W. Wise_________________

JUDGES

SGF/sg 509 [Cite as State v. Rogers, 2013-Ohio-2057.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff -Appellee : : -vs- : JUDGMENT ENTRY : KENNETH G. ROGERS : : Defendant - Appellant : CASE NO. CT2012-0053

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

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

to appellant.