State v. Cusac, Unpublished Decision (4-22-1998)
State v. Cusac, Unpublished Decision (4-22-1998)
Opinion of the Court
OPINION
This appeal is brought by John Cusac, Appellant, from a judgment of the Court of Common Pleas of Hancock County sentencing Appellant to fifteen months in prison and also suspending Appellant's license for fifteen months after Appellant pled guilty to one count of Trafficking in Cocaine.On August 14, 1997, Appellant pled guilty to violating R.C.
Appellant now appeals the sentence imposed by the trial court, asserting three assignments of error for our review.
First Assignment of Error
Error occurs when a lower court judge mistakes a greater level felony offense upon which Appellant was sentenced and disregards factors which indicate Defendant's amenability to community control and orders a prison sentence, despite having found that a prison sentence is not consistent with the principles and purposes of sentencing under R.C.
2929.11 and R.C.2929.12 .
As a threshold matter, Appellant's assignment of error references two statements made by the trial court during sentencing which Appellant claims illustrates error in sentencing by the trial court. First, Appellant cites the trial court's statement that Appellant's case is "a felony three drug case." A complete reading of the transcript reveals that the trial court acknowledged this error and corrected itself, stating Appellant's crime was a felony of the fourth degree. Second, Appellant cites the trial court's statement at the sentencing hearing that a prison term in this case would not be consistent with the principle and purposes of sentencing. Given the context in which this statement was made (which was amidst the court's recitation of factors indicating Appellant's likelihood of recidivism, followed by the court's assertion that Appellant was not amenable to any available community control sanction), we believe this was also a misstatement by the trial court. Moreover, the journal entry of sentencing stated a prison term would be consistent with the sentencing purposes. We are mindful that "[i]n Ohio a court speaks through its journal entry." State v. King (1994),
Appellant also contends that the trial court erred when it sentenced him to prison instead of finding him amenable to community control sanctions.
According to R.C.
The record in this case reveals that the trial court carefully considered the factors set out in R.C.
We recognize that the trial court has broad discretion when sentencing within the statutory limits. State v. Cassidy (1984),
Second Assignment of Error
A sentence is contrary to law and error occurs when a license suspension under R.C.
2925.03 (G) is ordered consecutive to any other license suspension and not immediately imposed.
In his second assignment of error, Appellant argues that the trial court erred in ordering Appellant's license suspension be served consecutive to any other license suspension. Appellant claims that this is not permitted under R.C.
We find no error in the trial court's order of consecutive license suspensions. While R.C.
In addition to any prison term authorized or required by the section * * * the court that sentences an offender who is convicted of or pleads guilty to a violation of section * * *
2925.03 * * * of the Revised Code either shall revoke or, if it does not revoke, shall suspend for not less than six months or more than five years, as specified in the section that establishes the offense, the person's driver's or commercial license or permit. * * * If the person's driver's or commercial driver's license or permit is under suspension on the date the court imposes sentence upon the person, any period of suspension imposed * * * shall take effect on the next day immediately following the end of the period of suspension.
Clearly, the trial court acted within its authority when suspending Appellant's license consecutive to any other suspension. Moreover, Crim.R. 32 has not been violated since Appellant was sentenced without unnecessary delay on November 20, 1997. Nor do we find R.C.
Third Assignment of Error
The bad time provisions of Senate Bill 2 are unconstitutional and a denial of due process guaranteed by the
Fourteenth Amendment of the U.S. Constitution and error occurs when a Defendant may be exposed to unconstitutional punishment.
We find Appellant lacks standing to challenge the constitutionality of the "bad time" provisions contained in R.C.
The constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision.
Palazzi v. Estate of Gardner (1987),
To have standing to challenge R.C.
In this case, Appellant's sentence has not been extended pursuant to the bad time provisions of R.C.
Having found no error prejudicial to the Appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
SHAW, P.J., and BRYANT, J., concur.
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