[Cite as State v. Wagner, 2012-Ohio-2791.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 27
v. : T.C. NO. 11 CR 34
STEPHEN WAGNER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 22nd day of June , 2012.
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Clark County Prosecutor, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
TYLER D. STARLINE, Atty. Reg. No. 0078552, 260 North Detroit Street, Xenia, Ohio 45385 Attorney for Defendant-Appellant
STEPHEN WAGNER, #648663, London Correctional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant
.......... 2
FROELICH, J.
{¶ 1} Stephen Wagner pled guilty to robbery, a third degree felony, and was
sentenced to the maximum term of five years in prison. Wagner appealed from his
conviction, and his appellate counsel raised potential assignments of error pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967). For the
following reasons, the trial court’s judgment will be affirmed.
I.
{¶ 2} In January 2011, Wagner was indicted for two counts of aggravated robbery,
each with a firearm specification. His trial was scheduled for March 29, 2011. On the
morning of the scheduled trial date, the court informed the parties that it was currently
conducting another trial, which had started the day before. The court, on its own motion,
rescheduled Wagner’s trial for March 30, one day later. Within hours, the parties reached
an agreement on the charges.
{¶ 3} During the afternoon of March 29, Wagner pled guilty to an amended
charge of robbery. As part of the plea, the State agreed to dismiss the second charge of
aggravated robbery and the firearm specifications and to have a pre-sentence investigation
conducted. The parties presented the court with a guilty plea form, with those terms, which
Wagner had signed prior to the plea hearing.
{¶ 4} A pre-sentence investigation was conducted. After reviewing the
pre-sentence investigation report, hearing from defense counsel and the prosecutor, and
providing Wagner an opportunity to address the court, the trial court sentenced Wagner to
the maximum five years in prison. Wagner appealed from his conviction. 3
{¶ 5} Wagner’s counsel has filed an Anders brief, stating that after a thorough
review of the record, no non-frivolous issues for appellate review were found. Wagner’s
counsel identified three possible assignments of error that we should review. Wagner was
informed of his counsel’s brief, and he was granted time to file a pro se brief. No pro se
brief has been filed.
{¶ 6} We have conducted an independent review of the record. Penson v. Ohio,
488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
II.
{¶ 7} The first and second potential assignments of error both relate to Wagner’s
sentencing. They state:
The Trial Court prejudicially erred in its analysis of the statutory
sentencing purposes and factors when it sentenced Appellant Wagner to a
maximum prison sentence.
The Trial Court prejudicially erred by imposing a cruel and unusual
punishment.
{¶ 8} Wagner’s counsel raises that the trial court’s sentence is contrary to law,
because the court did not follow statutory procedures in imposing sentence and the
imposition of a maximum sentence constitutes cruel and unusual punishment.
{¶ 9} We review a felony sentence using a two-step procedure. State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law.’” State v. 4
Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting
Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court’s decision
be ‘reviewed under an abuse-of-discretion standard.’” Id.
{¶ 10} At the time of Wagner’s sentencing, the trial court was not required to make
any findings or give its reasons before imposing a maximum, consecutive, or non-minimum
sentence within the statutory range.1 State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, paragraph seven of the syllabus. Nevertheless, the trial court must still comply
with the sentencing laws unaffected by Foster, such as R.C. 2929.11 and 2929.12, which
require consideration of the purposes and principles of felony sentencing and the seriousness
and recidivism factors. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1.
The court does not have to make any specific findings to demonstrate its consideration of
those statutes. State v. Ramey, 2d Dist. Clark No. 2010 CA 19, 2011-Ohio-1288, ¶ 47;
Foster at ¶ 42. “Where the record is silent, a presumption exits that the trial court has
considered the factors. Further, where a criminal sentence is within statutory limits, an
appellate court should accord the trial court the presumption that it considered the statutory
mitigating factors. Consequently, the appellant has an affirmative duty to show otherwise.”
(Citations omitted.) Ramey at ¶ 47.
{¶ 11} Wagner pled guilty to robbery, a third degree felony. At the time of his
sentencing, a felony of the third degree warranted a definite prison term of one to five years.
1 Pursuant to State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, in H.B. 86, the Ohio legislature re-enacted statutes requiring certain judicial fact-finding before imposing consecutive sentencing, which had previously been found unconstitutional in Foster and were not “revived” following Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). See R.C. 2929.14(C)(4). 5
Former R.C. 2929.14(A). Wagner was sentenced to five years, which was within the
sentencing range.
{¶ 12} In imposing sentence, the trial court discussed Wagner’s juvenile and adult
record, as detailed in the pre-sentence investigation report. The court did not, during the
sentencing hearing, expressly state that it had considered the principles and purposes of
felony sentencing and the seriousness and recidivism factors as set forth in R.C. 2929.11 and
R.C. 2929.12. However, the court commented on the severity of Wagner’s robbery offense
and the fact that his conviction record reflected escalating violence, including the use of a
firearm. The court stated, “Defendant’s record would indicate most likely to re-offend and,
as indicated, seems to be getting more serious offenses.” The court’s subsequent judgment
entry indicated that “[t]he Court has considered the record, oral statements, any victim
impact statement and presentence report prepared, as well as the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11, and has balanced the seriousness of
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[Cite as State v. Wagner, 2012-Ohio-2791.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 27
v. : T.C. NO. 11 CR 34
STEPHEN WAGNER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 22nd day of June , 2012.
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Clark County Prosecutor, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
TYLER D. STARLINE, Atty. Reg. No. 0078552, 260 North Detroit Street, Xenia, Ohio 45385 Attorney for Defendant-Appellant
STEPHEN WAGNER, #648663, London Correctional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant
.......... 2
FROELICH, J.
{¶ 1} Stephen Wagner pled guilty to robbery, a third degree felony, and was
sentenced to the maximum term of five years in prison. Wagner appealed from his
conviction, and his appellate counsel raised potential assignments of error pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967). For the
following reasons, the trial court’s judgment will be affirmed.
I.
{¶ 2} In January 2011, Wagner was indicted for two counts of aggravated robbery,
each with a firearm specification. His trial was scheduled for March 29, 2011. On the
morning of the scheduled trial date, the court informed the parties that it was currently
conducting another trial, which had started the day before. The court, on its own motion,
rescheduled Wagner’s trial for March 30, one day later. Within hours, the parties reached
an agreement on the charges.
{¶ 3} During the afternoon of March 29, Wagner pled guilty to an amended
charge of robbery. As part of the plea, the State agreed to dismiss the second charge of
aggravated robbery and the firearm specifications and to have a pre-sentence investigation
conducted. The parties presented the court with a guilty plea form, with those terms, which
Wagner had signed prior to the plea hearing.
{¶ 4} A pre-sentence investigation was conducted. After reviewing the
pre-sentence investigation report, hearing from defense counsel and the prosecutor, and
providing Wagner an opportunity to address the court, the trial court sentenced Wagner to
the maximum five years in prison. Wagner appealed from his conviction. 3
{¶ 5} Wagner’s counsel has filed an Anders brief, stating that after a thorough
review of the record, no non-frivolous issues for appellate review were found. Wagner’s
counsel identified three possible assignments of error that we should review. Wagner was
informed of his counsel’s brief, and he was granted time to file a pro se brief. No pro se
brief has been filed.
{¶ 6} We have conducted an independent review of the record. Penson v. Ohio,
488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
II.
{¶ 7} The first and second potential assignments of error both relate to Wagner’s
sentencing. They state:
The Trial Court prejudicially erred in its analysis of the statutory
sentencing purposes and factors when it sentenced Appellant Wagner to a
maximum prison sentence.
The Trial Court prejudicially erred by imposing a cruel and unusual
punishment.
{¶ 8} Wagner’s counsel raises that the trial court’s sentence is contrary to law,
because the court did not follow statutory procedures in imposing sentence and the
imposition of a maximum sentence constitutes cruel and unusual punishment.
{¶ 9} We review a felony sentence using a two-step procedure. State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law.’” State v. 4
Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting
Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court’s decision
be ‘reviewed under an abuse-of-discretion standard.’” Id.
{¶ 10} At the time of Wagner’s sentencing, the trial court was not required to make
any findings or give its reasons before imposing a maximum, consecutive, or non-minimum
sentence within the statutory range.1 State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, paragraph seven of the syllabus. Nevertheless, the trial court must still comply
with the sentencing laws unaffected by Foster, such as R.C. 2929.11 and 2929.12, which
require consideration of the purposes and principles of felony sentencing and the seriousness
and recidivism factors. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1.
The court does not have to make any specific findings to demonstrate its consideration of
those statutes. State v. Ramey, 2d Dist. Clark No. 2010 CA 19, 2011-Ohio-1288, ¶ 47;
Foster at ¶ 42. “Where the record is silent, a presumption exits that the trial court has
considered the factors. Further, where a criminal sentence is within statutory limits, an
appellate court should accord the trial court the presumption that it considered the statutory
mitigating factors. Consequently, the appellant has an affirmative duty to show otherwise.”
(Citations omitted.) Ramey at ¶ 47.
{¶ 11} Wagner pled guilty to robbery, a third degree felony. At the time of his
sentencing, a felony of the third degree warranted a definite prison term of one to five years.
1 Pursuant to State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, in H.B. 86, the Ohio legislature re-enacted statutes requiring certain judicial fact-finding before imposing consecutive sentencing, which had previously been found unconstitutional in Foster and were not “revived” following Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). See R.C. 2929.14(C)(4). 5
Former R.C. 2929.14(A). Wagner was sentenced to five years, which was within the
sentencing range.
{¶ 12} In imposing sentence, the trial court discussed Wagner’s juvenile and adult
record, as detailed in the pre-sentence investigation report. The court did not, during the
sentencing hearing, expressly state that it had considered the principles and purposes of
felony sentencing and the seriousness and recidivism factors as set forth in R.C. 2929.11 and
R.C. 2929.12. However, the court commented on the severity of Wagner’s robbery offense
and the fact that his conviction record reflected escalating violence, including the use of a
firearm. The court stated, “Defendant’s record would indicate most likely to re-offend and,
as indicated, seems to be getting more serious offenses.” The court’s subsequent judgment
entry indicated that “[t]he Court has considered the record, oral statements, any victim
impact statement and presentence report prepared, as well as the principles and purposes of
sentencing under Ohio Revised Code Section 2929.11, and has balanced the seriousness of
recidivism factors [in] Ohio Revised Code 2929.12.” There is nothing in the record to
suggest that the trial court did not do so. Wagner’s first potential assignment of error has no
arguable merit.
{¶ 13} Wagner’s counsel further raises that his maximum five-year sentence for
robbery constitutes cruel and unusual punishment. “As a general rule, a sentence that falls
within the terms of a valid statute cannot amount to a cruel and unusual punishment.”
(Citations omitted.) McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964),
quoted by State v. Coffman, 2d Dist. Champaign No. 2010-CA-20, 2010-Ohio-4284, ¶ 9.
Wagner’s sentence was within the statutory range for a third degree felony. Accordingly, 6
his argument that his five-year sentence constituted cruel and unusual punishment is
frivolous.
{¶ 14} We further find no abuse of discretion in the trial court’s imposition of the
maximum five-year sentence. The record reflects that Wagner and another man broke into a
residence, pointed guns at the three occupants, and demanded money; one resident was hit in
the head with a gun. The trial court reasonably concluded that these actions amounted to
“one of the most serious” forms of the offense of robbery. Moreover, Wagner’s extensive
juvenile record over several years and his use of violence in committing the robbery
supported the trial court’s conclusion that Wagner was likely to re-offend and that a
maximum sentence was appropriate. Wagner’s second potential assignment of error has no
III.
{¶ 15} In his third potential assignment of error, Wagner’s counsel raises that “[t]he
trial court prejudicially erred by granting a sua sponte continuance of the scheduled jury trial
when no journal entry reflecting the sua sponte continuance was filed with the Clerk of
Courts.”
{¶ 16} A plea of guilty is a complete admission of guilt. E.g., State v. Wheeler, 2d
Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; State v. Barrett, 2d Dist. Montgomery
No. 24150, 2011-Ohio-2303, ¶ 3; Crim.R. 11(B)(1). Consequently, a guilty plea waives all
appealable errors that may have occurred in the trial court, unless such errors precluded the
defendant from knowingly, intelligently, and voluntarily entering his guilty plea. See, e.g.,
State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus; 7
Wheeler at ¶ 3; State v. Smith, 2d Dist. Clark No. 08 CA 60, 2009-Ohio-5048, ¶ 13. By
pleading guilty, Wagner has waived any challenge based on the trial court’s sua sponte
one-day continuance of his trial date. Even if Wagner’s argument were not waived, he has
failed to articulate how he was prejudiced by the trial court’s action.
{¶ 17} Wagner’s third potential assignment of error is frivolous.
IV.
{¶ 18} We agree with Wagner’s appellate counsel that there are no potential
assignments of error having arguable merit and that this appeal is wholly frivolous.
Accordingly, the judgment of the trial court will be affirmed.
GRADY, P.J. and DONOVAN, J., concur.
Copies mailed to:
Lisa M. Fannin Tyler D. Starline Stephen Wagner Hon. Richard J. O’Neill