State v. Little , 2012 Ohio 2895 ( 2012 )

[Cite as State v. Little, 2012-Ohio-2895.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2011-0057
ANTHONY S. LITTLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Common Pleas Court, Case No.
CR2011-0077
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT L. SMITH DAVID A. SAMS
Assistant Prosecuting Attorney Box 40
27 North Fifth Street W. Jefferson, Ohio 43162
Zanesville, Ohio 43701
Muskingum County, Case No. CT2011-0057 2
Hoffman, J.
{¶1} Defendant-appellant Anthony S. Little appeals his sentence entered by the
Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶2} On March 23, 2011, Appellant was indicted for rape of a child under the
age of thirteen, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree.
{¶3} On September 19, 2011, Appellant entered a plea of guilty to an amended
charge of sexual battery, in violation of R.C. 2907.03(A)(1), a felony of the third degree.
Pursuant to the plea agreement, the State agreed to make no recommendation as to
sentencing.
{¶4} On October 24, 2011, the trial court conducted a sentencing hearing,
during which the trial court ordered Appellant serve a mandatory prison term of sixty
months. The court also designated Appellant a Tier II sexual offender.
{¶5} Appellant now appeals, assigning as error:
{¶6} “I. THE TRIAL COURT ERRED WHEN IMPOSING A MAXIMUM
SENTENCE UPON DEFENDANT-APPELLANT CONTRARY TO THE OVERRIDING
PURPOSES OF FELONY SENTENCING UNDER HB 86.”
{¶7} Appellant asserts the trial court erred in imposing the maximum sentence
contrary to the minimum sentence presumption established in H.B. 86, in the absence
of R.C. 2929.12 factors which would overcome the presumption. As a result, Appellant
argues his sentence is contrary to the newly enacted H.B. 86; therefore, must be
vacated and he should be resentenced. We disagree.
Muskingum County, Case No. CT2011-0057 3
{¶8} H.B. 86 became effective September 30, 2011, sixteen days after the
alleged offense, but prior to the sentencing herein. The enacted legislation reads at
Section 4,
{¶9} "The amendments to sections 926.99, 1333.99, 1707.99, 1716.99,
2909.03, 2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913. 31,
2913.32, 2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46,
2913.47, 2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917. 21, 2917.31, 2917.32,
2921.13, 2921.41, 2923.31, and 2981.07, division (B) of section 2929.13, and division
(A) of section 2929.14 of the Revised Code that are made in this act apply to a person
who commits an offense specified or penalized under those sections on or after the
effective date of this section and to a person to whom division (B) of section 1.58 of the
Revised Code makes the amendments applicable.
{¶10} "The provisions of sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,
2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913. 32,
2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,
2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917. 31, 2917.32, 2921.13,
2921.41, 2923.31, and 2981.07 of the Revised Code in existence prior to the effective
date of this section shall apply to a person upon whom a court imposed sentence prior
to the effective date of this section for an offense specified or penalized under those
sections. The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,
2909. 05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.32,
2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,
2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917.31, 2917. 32, 2921.13,
Muskingum County, Case No. CT2011-0057 4
2921.41, 2923.31, and 2981.07 of the Revised Code that are made in this act do not
apply to a person who upon whom a court imposed sentence prior to the effective date
of this section for an offense specified or penalized under those sections."
{¶11} As set forth above, Appellant entered a plea to sexual battery, in violation
of R.C. 2907.03(A)(1). H.B. 86 did not amend or change the statute for which Appellant
was convicted. Further, H.B. 86, Section 4 does not specifically include sexual battery
as one of the offenses for which the legislation is to be applied retroactively.
{¶12} Accordingly, we find Appellant's argument the trial court was required to
comply with the requirements of H.B. 86 in issuing Appellant’s sentence herein is not
well taken.
{¶13} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912 set forth a two step process for examining felony sentences. 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.” Kalish at ¶ 4. If this first step “is satisfied,” the second step requires the
trial court's decision be “reviewed under an abuse-of-discretion standard .” Id.{¶14} The relevant sentencing law at the time of sentencing herein was
controlled by the Ohio Supreme Court's decision in State v. Foster, i.e. “ * * * trial courts
have full discretion to impose a prison sentence within the statutory range and are no
longer required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences.” 109 Ohio St.3d 1, 30, 2006–Ohio–
856 at ¶ 100, 845 N.E.2d 470, 498.
Muskingum County, Case No. CT2011-0057 5
{¶15} Upon review of Appellant's sentence, the same is within the parameters
for the offense and does not amount to an abuse of discretion. We find the record fails
to demonstrate the trial court failed to give careful and substantial deliberation to the
relevant statutory considerations.
{¶16} Appellant's sentence in the Muskingum County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE
Muskingum County, Case No. CT2011-0057 6
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ANTHONY S. LITTLE :
:
Defendant-Appellant : Case No. CT2011-0057
For the reason stated in our accompanying Opinion, Appellant's sentence in the
Muskingum County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise______________________
HON. JOHN W. WISE