State v. Flowers, Unpublished Decision (3-24-2006)
State v. Flowers, Unpublished Decision (3-24-2006)
Opinion of the Court
OPINION
{¶ 1} This matter is before the Court on the Notice of Appeal of Michael E. Flowers, filed May 23, 2005. On February 24, 2005 a Montgomery County Grand Jury indicted Flowers with one count of receiving stolen property, namely checks, in violation of R.C.
{¶ 2} Flowers first assignment of error is as follows:
{¶ 3} "THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO PRISON WITHOUT MAKING INQUIRY OF THE DEFENDANT WITH REGARD TO THE SENTENCING AND BY NOT PROVIDING FINDINGS WITH REASONS FOR THE NINE (9) MONTH PRISON TERM IN ACCORDANCE WITH O.R.C. § 2929.19."
{¶ 4} The State argued that Flowers failed to comply with App.R. 9(A); the State filed its brief herein on August 16, 2005, and Flowers did not submit to this Court a transcript of the sentencing hearing, as App.R. 9(A) requires, until November 14, 2005. Since the transcript of the proceedings herein is now before us, we will address the merits of Flowers' brief.
{¶ 5} R.C.
{¶ 6} After thoroughly reviewing the transcript of Flowers' sentencing hearing, we agree that the trial court failed to ask Flowers, pursuant to R.C.
{¶ 7} Flowers also argues that the sentencing court violated R.C.
{¶ 8} The Supreme Court severed R.C.
{¶ 9} Due to the sentencing court's failure to inquire of Flowers as to the imposition of sentence, we sustain Flower's first assignment of error in part. Also, in light of Foster, we remand this matter to the trial court for a new sentencing hearing. At the sentencing hearing, the trial court "shall consider those portions of the sentencing code that are unaffected by [Foster] and impose any sentence within the appropriate felony range."
{¶ 10} Flowers' second assignment of error is as follows:
{¶ 11} "THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO PRISON WITHOUT FIRST CONSIDERING IMPOSITION OF EITHER A FINE OR A COMMUNITY CONTROL SANCTION AS THE SOLE SANCTION IN ACCORDANCE WITH O.R.C. 2929.13(A)."
{¶ 12} Our ruling on Flowers' first assignment of error renders moot this second assignment of error, as we are remanding this matter for a new sentencing hearing consistent withFoster.
{¶ 13} We will address Flowers' third and fourth assignments of error together. They are as follows:
{¶ 14} "THE TRIAL COURT ERRED IN CONVICTING AND SENTENCING DEFENDANT FOR FORGERY AND RECEIVING STOLEN PROPERTY BASED ON INSUFFICIENT EVIDENCE AS A MATTER OF LAW" and
{¶ 15} "DEFENDANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE"
{¶ 16} Flowers entered a guilty plea herein. "A guilty plea is a full admission that the defendant is, in fact and law, guilty of the offense alleged." State v. Brown (September 30, 1992), Montgomery App. No. 12949; Crim. R. 11(B). In entering his guilty plea, Flowers waived any claims that his conviction was not supported by sufficient evidence or was against the manifest weight of the evidence. Accordingly, Flowers' third and fourth assignments of error are overruled.
{¶ 17} The sentence is reversed, and the matter is remanded for resentencing. In all other respects, the judgment of conviction will be affirmed.
Grady, P.J. and Wolff, J., concur.
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