State v. Kelley, Unpublished Decision (2-13-2006)
State v. Kelley, Unpublished Decision (2-13-2006)
Opinion of the Court
{¶ 2} On November 19, 2004, Ryan's father, Michael Kelley ("Michael"), called the Wapakoneta Police Department to report that Ryan had stolen personal checks belonging to himself and Ryan's mother. Michael also reported that Ryan had transferred money from the Kelleys' savings account and into their checking account in order to cash checks, and he requested that the police arrest Ryan upon his arrival at their home. At the Kelley residence, police officers placed Ryan in the back of a cruiser for questioning, but while the officers were inside the home, Ryan's girlfriend released him. Although canines tracked Ryan, he was not apprehended that evening. On December 3, 2004, Ryan was arrested in Licking County on unrelated matters. On December 10, 2004, Ryan was booked at the Auglaize County Jail. During the booking process, a corrections officer retrieved a small glass vial of white powdery residue from Ryan's person. The substance was subsequently tested and confirmed to be cocaine. At the time of the offenses, Ryan was on post release control.
{¶ 3} On January 28, 2005, the Auglaize County Grand Jury indicted Ryan on one count of receiving stolen property, a violation of R.C.
{¶ 4} The trial court held a joint change of plea hearing on June 8, 2005. In case number 02-05-35, Ryan pled guilty to receiving stolen property and the forgery charge was dismissed, and in case number 02-05-34, Ryan pled guilty to the charge of possession of cocaine. The trial court held a joint sentencing hearing on July 28, 2005 and filed its judgment entries on July 29, 2005. The court sentenced Ryan to serve an aggregate prison term of 49 months and 30 days: 11 months for receiving stolen property served consecutively to 11 months for possession of cocaine served consecutively to 27 months and 30 days for the post release control violations. Ryan appeals the sentences and asserts the following assignments of error:
The trial court's ordering that the sentences ofDefendant-Appellant are to be served consecutively to each otherwas unsupported by the record and was contrary to law.
The trial court committed prejudicial error when it failed toproperly follow the sentencing criteria set forth in Ohio RevisedCode, Section
{¶ 5} In the first assignment of error, Ryan contends that the evidence does not support the trial court's findings as to consecutive sentences. An appellate court may not modify a trial court's sentence unless it finds by clear and convincing evidence that the record does not support the trial court's findings or the sentence is contrary to law. R.C.
{¶ 6} When a trial court sentences an offender for multiple offenses, it is required to impose the sentences concurrently unless it complies with R.C.
(a) The offender committed one or more of the multipleoffenses while the offender was awaiting trial or sentencing, wasunder a sanction imposed pursuant to section
The trial court is required to make these findings and state its reasons therefore on the record at the sentencing hearing.State v. Comer,
{¶ 7} Our review of the record reveals more than ample evidence to support the trial court's findings. Although the trial court did not recite the specific language used in R.C.
[t]he reason I'm sentencing you this way is because I reallythink that you are so messed up that you really need tounderstand what you're dealing with here. * * * It's not myintention to do anything other than try to give you theopportunity to realize that you're either going [to] get cleanand follow the law or you're gonna do time in prison. Treatmenthas not worked[.]
Hearing Tr., Oct. 11, 2005, 34:4-6; 37:16-19. The court also noted Ryan's lengthy juvenile and criminal records, which evidence a pattern of theft offenses. Id. at 33:15. The evidence in this case clearly and convincingly supports the trial court's findings and the imposition of consecutive sentences. The first assignment of error is overruled.
{¶ 8} In the second assignment of error, Ryan contends that the trial court erred by imposing the maximum sentence allowed for his post release control violation without making the findings required by R.C.
{¶ 9} When a person violates any condition of post release control by committing a felony, that person may be prosecuted for the new felony. R.C.
Upon the person's conviction of or plea of guilty to the newfelony, the court shall impose sentence for the new felony, thecourt may terminate the term of post-release control if theperson is a releasee and the court may do either or both of thefollowing for a person who is either a releasee or parolee * * *f
(1) * * * impose a prison term for the violation. If theperson is a releasee, the maximum prison term for theviolation shall be the greater of twelve months or the period ofpost-release control for the earlier felony minus any time thereleasee has spent under post-release control for the earlierfelony. * * * In all cases, any prison term imposed for theviolation shall be served consecutively to any prison termimposed for the new felony.
R.C.
[e]xcept as provided in division (G) of this section or inChapter 2925. of the Revised Code, the court imposing a sentenceupon an offender for a felony may impose the longest prisonterm authorized for the offense pursuant to division (A) of thissection only upon offenders who committed the worst forms ofthe offense, upon offenders who pose the greatest likelihood ofcommitting future crimes, upon certain major drug offenders underdivision (D)(3) of this section, and upon certain repeat violentoffenders in accordance with section (D)(2) of this section.
(emphasis added). We can not agree with the appellant's proposition.
{¶ 10} If the General Assembly's intent can be ascertained from the plain meaning of a statute, and if the words are clear and unambiguous, the court may not resort to any other rules of interpretation or construction. See State v. Hairston,
{¶ 11} The judgments of the Auglaize County Common Pleas Court are affirmed.
Judgments Affirmed. Rogers and Shaw, JJ., concur.
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