State v. High , 2019 Ohio 523 ( 2019 )

[Cite as State v. High, 2019-Ohio-523.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
CHRISTOPHER HIGH : Case No. 2018CA00088
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016 CR 0090
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 11, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DONOVAN HILL
Prosecuting Attorney 116 Cleveland Avenue North
By: KRISTINE W. BEARD Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2018CA00088 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Christopher High, appeals the June 6, 2018 judgment
entry of the Court of Common Pleas of Stark County, Ohio, on resentencing. Plaintiff-
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 30, 2016, appellant was found guilty of one count of aggravated
robbery in violation of R.C. 2911.01(A)(1) and/or (3), one count of aggravated burglary in
violation of R.C. 2911.11(A)(1) and/or (2), and one count of felonious assault in violation
of R.C. 2903.11(A)(1). All three counts carried attendant firearm specifications in violation
of R.C. 2941.145. By judgment entry filed April 11, 2016, the trial court (a visiting judge)
sentenced appellant to six years on the aggravated robbery count, six years on the
aggravated burglary count, both to be served concurrently, and four years on the
felonious assault count, to be served consecutively to the six year sentence. The trial
court merged the sentences on the firearm specifications and imposed an additional three
years, to be served consecutively to the ten year sentence for a total term of thirteen
years in prison.
{¶ 3} Appellant filed an appeal, challenging his sentence. This court found the
trial court failed to make findings relative to consecutive sentencing, and failed to merge
the felonious assault and aggravated robbery convictions. This court vacated the
sentence and remanded the matter to the trial court for resentencing. State v. High, 5th
Dist. Stark No. 2016CA00095, 2017-Ohio-1242 (High I).
{¶ 4} Upon remand, the trial court (a different judge) held a resentencing hearing
on May 24, 2017. By judgment entry filed June 2, 2017, the trial court sentenced appellant
Stark County, Case No. 2018CA00088 3
to ten years on the merged aggravated robbery and felonious assault counts, plus three
years on the firearm specification, and ten years on the aggravated burglary count, plus
three years on the firearm specification, to be served concurrently for a total term of
thirteen years in prison.
{¶ 5} Appellant filed an appeal, again challenging his sentence. This court found
the trial court failed to make findings relative to the purposes and principles of sentencing
and the seriousness and recidivism factors, failed to include postrelease control in the
judgment entry, and failed to inform appellant of his right to appeal. This court vacated
the sentence and remanded the matter to the trial court for resentencing. State v. High,
5th Dist. Stark No. 2017CA00115, 2018-Ohio-829 (High II).
{¶ 6} Upon remand, the trial court (the same judge for resentencing) held
resentencing hearings on May 30 and 31, 2018. By judgment entry filed June 6, 2018,
the trial court sentenced appellant to the previously imposed resentence of thirteen years.
{¶ 7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 8} "APPELLANT'S SENTENCE WAS CONTRARY TO LAW."
I
{¶ 9} In his sole assignment of error, appellant claims the trial court's second
resentence was contrary to law. We disagree.
{¶ 10} Appellant argues on remand, the trial court resentenced him to increased
years (from six to ten), giving "the appearance of penalizing Appellant for exercising his
Stark County, Case No. 2018CA00088 4
rights, by virtue of imposing higher sentences on the charges than were originally
imposed." Appellant's Brief at 3.
{¶ 11} The visiting judge sentenced appellate to an aggregate thirteen years in
prison. Upon remand, the resentencing judge merged the aggravated robbery and
felonious assault convictions as ordered, and sentenced appellant to an aggregate
thirteen years in prison. In doing so, the trial court increased the prison term from six to
ten years on the principal offenses, but kept the aggregate term the same.
{¶ 12} Appellant now argues if the visiting judge would have resentenced
appellant, with the six years originally imposed and the merger, his sentence would have
been an aggregate nine years.
{¶ 13} In High II, appellant argued the trial court (the resentencing judge) abused
its discretion in resentencing him to thirteen years, arguing a more reasonable sentence
would be an aggregate term of nine years. We note appellant never raised the issue of
being resentenced by a different judge and therefore cannot argue that issue now. This
court reviewed the individual sentences and determined at ¶ 11 that the "sentences are
within the statutory range," but found the sentences were contrary to law in part because
the trial court did not adequately consider the factors under R.C. 2929.11 and 2929.12.
{¶ 14} Upon remand, the trial court imposed the same sentences, already deemed
to be within the statutory range, and properly followed this court's directives from High II.
May 30, 2018 T. at 7-10; May 31, 2018 T. at 4-7. We find the sentences are not contrary
to law. State v. Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 47.
{¶ 15} The visiting judge determined an aggregate term of thirteen years was
warranted. The resentencing judge reviewed the trial transcript including the sentencing
Stark County, Case No. 2018CA00088 5
transcripts, the victim's testimony, appellant's testimony, the findings made by the visiting
judge, any statements appellant made at the sentencing hearings, and all evidence
submitted, considered all of the statutory factors, and also determined an aggregate term
of thirteen years was warranted. The resentencing judge did not resentence appellant to
maximum sentences or a lengthier aggregate term than the visiting judge. The record is
devoid of any hint that the sentences were increased to penalize appellant for exercising
his rights.
{¶ 16} The sole assignment of error is denied.
{¶ 17} The resentence of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
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