State v. Stone , 2012 Ohio 1895 ( 2012 )

[Cite as State v. Stone, 2012-Ohio-1895.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-11-39
v.
MARLIN EUGENE STONE, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 10-CR-534
Judgment Affirmed
Date of Decision: April 30, 2012
APPEARANCES:
Kevin P. Collins for Appellant
Brent W. Yager and Gregory A. Perry for Appellee
Case No. 9-11-39
PRESTON, J.
{¶1} Defendant-appellant, Marlin E. Stone, Jr. (“Stone”), appeals the
Marion County Court of Common Pleas’ sentence of 30 years to life imprisonment
following his plea of guilty to aggravated murder, aggravated robbery, and
burglary. For the reasons that follow, we affirm.
{¶2} On October 28, 2010, a Marion County Grand Jury jointly indicted
Stone and Vanessa Manley (“Manley”) on two counts of aggravated murder in
violation of R.C. 2903.01(A), felonies of the first degree (Counts One and Two);
two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies of
the first degree (Counts Three and Four); two counts of robbery in violation of
R.C. 2911.02(A)(2), felonies of the second degree (Counts Five and Six); two
counts of aggravated burglary in violation of R.C. 2911.11(A)(1), felonies of the
first degree (Counts Seven and Eight); one count of burglary in violation of R.C.
2911.11(A)(2), a felony of the first degree (Count Nine); four counts of tampering
with evidence in violation of R.C. 2921.12(A)(1), felonies of the third degree
(Counts Ten, Eleven, Twelve, and Thirteen); and one count of obstructing justice
in violation of R.C. 2921.32(A)(4), a felony of the third degree (Count Fourteen).
(Doc. No. 1). On December 13, 2010, Stone pleaded not guilty to all of the
charges. (Doc. No. 26).
-2-
Case No. 9-11-39
{¶3} On April 21, 2011, Stone filed a motion to sever Manley’s trial from
his trial. (Doc. No. 99). The trial court granted Stone’s motion on June 2, 2011.
(Doc. No. 131).
{¶4} On June 6, 2011, Stone entered guilty pleas to one count of aggravated
murder (Count Two), one count of aggravated robbery (Count Three), and one
count of burglary (Count Nine) pursuant to a plea agreement. (Doc. No. 134).
According to the plea agreement, the State would dismiss the remaining charges
and recommend a sentence of 25 years to life imprisonment on the aggravated
murder charge (Count Two), 6 years imprisonment on the aggravated robbery
charge (Count Three), and 2 years imprisonment on the burglary charge (Count
Nine). (Doc. No. 135). The State would recommend that Stone serve the
aggravated murder and aggravated robbery sentences concurrently to each other
but consecutively to the burglary sentence for a total of 27 years to life
imprisonment. (Id.).
{¶5} On August 9, 2011, the trial court held a sentencing hearing. (Aug. 9,
2011 Tr. at 163). The trial court sentenced Stone to 25 years to life imprisonment
for aggravated murder (Count Two), 5 years imprisonment for aggravated robbery
(Count Three), and 5 years imprisonment for burglary (Count Nine). (Aug. 15,
2011 JE, Doc. No. 141). The trial court ordered Stone to serve the 5 years
imprisonment for aggravated robbery concurrent to the 5 years imprisonment for
-3-
Case No. 9-11-39
burglary, but consecutive to the 25 years to life imprisonment for aggravated
murder, for a total sentence of 30 years to life imprisonment. (Id.).
{¶6} On September 12, 2011, Stone filed a notice of appeal. (Doc. No.
145). Stone raised two assignments of error for our review. Since the two
assignments of error rely on the same issues of fact and law, we will address them
together.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY IMPOSING CONSECUTIVE
SENTENCES WITHOUT MAKING ANY FINDINGS
REQUIRED BY R.C. 2929.14(E)(4)
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY IMPOSING MORE THAN
THE MINIMUM PRISON SENTENCE WITHOUT
ADEQUATE JUSTIFICATION
{¶7} In his assignments of error, Stone argues State v. Foster, where the
Supreme Court of Ohio severed the portion of the sentencing statute requiring
judicial fact-finding, should not apply in this case. 109 Ohio St.3d 1, 2006-Ohio-
856. Stone contends that he waived his Sixth Amendment rights by pleading
guilty to the charges, consequently Foster is inapplicable and the trial court was
required to make judicial findings of fact. Alternatively, Stone argues his sentence
-4-
Case No. 9-11-39
is contrary to law because the trial court imposed a sentence that was greater than
the minimum possible sentence without justification.
{¶8} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,
¶ 23 (the clear and convincing evidence standard of review set forth under R.C.
2953.08(G)(2) remains viable with respect to those cases appealed under the
applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,
12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.
1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko,
139 Ohio App.3d 827, 835 (12th Dist. 2000). An appellate court should not,
however, substitute its judgment for that of the trial court because the trial court is
‘“clearly in the better position to judge the defendant’s dangerousness and to
ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No.
-5-
Case No. 9-11-39
2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400
(2001).1
{¶9} As a preliminary matter, we note that the General Assembly recently
amended the sentencing statute (former R.C. 2929.14(E)(4)) and implemented new
language requiring judicial fact-finding for consecutive sentences. Am.Sub.H.B.
No. 86; State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28. The new
statute went into effect on September 30, 2011. Am.Sub.H.B. No. 86. Stone was
sentenced on August 15, 2011; consequently, the new legislation does not apply in
this case.
{¶10} Prior to this new legislation, the Supreme Court of Ohio determined
that the sentencing statute requiring judicial fact-finding prior to imposing
consecutive sentences infringed on a defendant’s Sixth Amendment right to a trial
by jury. Foster, 2006-Ohio-856, at paragraph one of the syllabus. Following that
decision, the United States Supreme Court determined that a state could require
judicial findings of fact to impose consecutive rather than concurrent sentences
without infringing on a defendant’s Sixth Amendment rights. Oregon v. Ice, 555
U.S. 160, 129 S.Ct. 711 (2009). The Supreme Court of Ohio then determined in
1
This Court notes that the Ohio Supreme Court has released a plurality opinion on the issue of whether a
clear and convincing standard or an abuse of discretion standard is proper for reviewing felony sentences
under R.C. 2953.08(G). State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Although this Court used our
precedential clear and convincing standard, affirmed and adopted by Kalish’s three dissenting Justices, we
would have concluded that Stone’s sentence was proper under the Kalish plurality’s two-step approach as
well.
-6-
Case No. 9-11-39
State v. Hodge that Foster remained valid after Ice and the judiciary was not
required to make findings of fact prior to imposing maximum or consecutive
sentences. 128 Ohio St.3d 1, 2010-Ohio-6320. However, the Supreme Court of
Ohio determined the trial court was still required to consider the sentencing
purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. Foster at ¶
36-42.
{¶11} Stone argues that since he waived his Sixth Amendment rights by
pleading guilty, Foster does not apply and the trial court erred by failing to make
findings of fact when it imposed a consecutive sentence. However, Stone does not
cite any case law in support of his argument. In fact, this Court has previously
applied Foster in cases where the defendant had entered a guilty plea. State v.
Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774; State v. Blackburn, 3d
Dist. No. 5-09-18, 2009-Ohio-5902. Consequently, the trial court was not
required to make findings of fact when it imposed a consecutive sentence in the
present case. Furthermore, the trial court explicitly stated in its judgment entry
that it had considered “the record, oral statements, any victim impact statement
and pre-sentence report prepared, as well as the principles and purposes of
sentencing under R.C. 2929.11, and the appropriate factors under R.C. 2929.12.”
(Doc. No. 141). The trial court thus complied with the sentencing requirements
according to Foster.
-7-
Case No. 9-11-39
{¶12} Stone also argues the trial court erred by imposing a sentence that
was greater than the minimum possible sentence and greater than the sentence the
State recommended. Stone contends that he was remorseful for his offense and
presented evidence that he is rehabilitated. As a result, Stone argues the trial court
erred by imposing a consecutive sentence. We disagree.
{¶13} At his sentencing hearing, Stone presented evidence that he had been
abused as a child, had recently experienced some traumatic events at the time of
his offense including the death of the grandmother who had helped raise him and a
break up with his pregnant girlfriend, and was also addicted to drugs. (Aug. 9,
2011 Tr. at 168-224). Stone also presented witnesses who testified that Stone’s
actions in committing the offense were inconsistent with his character, that he was
remorseful for what he had done, and had been rehabilitated while his case was
pending. (Id.). However, we cannot find that the trial court erred in determining
that, despite this evidence, the severity of Stone’s offense merited more than the
minimum possible sentence. Before Stone entered his guilty plea, the State
informed the trial court that:
If this matter proceeded to trial the State would prove that on
October 11th, 2010 in Marion County, Ohio, that the Defendant, in
concert with his co-Defendant Vanessa Manley, they went over to
the residence- the home of Lee McGary, Jr. located at 381 ½ Pearl
-8-
Case No. 9-11-39
Street- I’m sorry, Park Street in Marion, Ohio. They go over there
with the purpose to rob him; to steal from him. They did by stealth
and force enter into his home, and when they entered into his home
again the purpose was to commit this theft offense. The Defendant
took with him a large kitchen knife, and with that large kitchen knife
he repeatedly stabbed the victim, Mr. McGary, and fatally wounded
him causing his death. They stole approximately a hundred to $150
in U.S. currency, the wallet, cell phone, pocket knife, and DVD’s
from the victim, and then fled the scene. (June 3, 2011 Tr. at 157-
158).
The autopsy report revealed that Stone stabbed Lee McGary (“McGary”) nine
times, including two fatal wounds to his neck. (PSI at 3). Stone also provided
details about the incident in an interview with a probation officer on June 13,
2011. (Id. at 15- 17). Stone told the probation officer that the night before the
offense, Manley and he planned to go to McGary’s house, stab him, steal his
money, and purchase drugs. (Id. at 15). Stone stated that Manley originally
wanted to murder a woman she knew was coming back to Marion from working in
Columbus and would have money. (Id.). Stone told Manley he would not murder
a woman, so Manley suggested McGary. (Id.). On the day of the offense, Manley
knocked on McGary’s door. (Id.). When McGary opened the door, Manley
-9-
Case No. 9-11-39
pushed it open and Stone ran into the house. (Id.). Stone stabbed McGary while
Manley took McGary’s money, cell phone, and pocket knife. (Id. at 15). Stone
and Manley left and cleaned up at Stone’s mother’s house where they discovered
the wallet only contained $150. (Id.). Stone and Manley immediately used the
money to purchase crack cocaine. (Id.). In light of the seriousness of Stone’s
conduct, we cannot find that the trial court erred by imposing a sentence greater
than the statutorily required minimum of 20 years to life imprisonment.
{¶14} Stone further argues that the trial court erred in imposing the
sentence because it is greater than the sentence the State recommended. This
argument is without merit. Trial courts may reject plea agreements and are not
bound by a recommended sentence. State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, ¶ 28. “The decision to accept or reject a plea bargain rests solely
within the discretion of the trial court.” State v. Jefferson, 5th Dist. No. 11 CAA
04 0033, 2012-Ohio-148, ¶ 50, citing State v. Asberry, 173 Ohio App.3d 443,
2007-Ohio-5436 (8th Dist.). Furthermore, the State informed Stone that the trial
court was not bound by its recommendation, and the plea agreement included the
potential sentences for each of the offenses. (Doc. No. 135). The plea agreement
explicitly stated:
[t]here is no commitment as to sentencing by the Court; however,
the State will recommend the Defendant receive an indefinite term
-10-
Case No. 9-11-39
of incarceration of 25 years to life on Count 2, a definite term of six
(6) years as to Count 3, and a definite term of two (2) years as to
Count 9, Count 2 and Count 3 to be served concurrently with one
another, but consecutive to Count 9, for a total term of 27 years to
life. (Id.).
Stone thus knew at the time that he entered into the plea agreement that he could
potentially receive any sentence within the statutory range, including a sentence
greater than 27 years to life imprisonment. (Id.). We cannot find that the trial
court erred in imposing a consecutive sentence resulting in a total of 30 years to
life imprisonment for Stone’s aggravated murder, aggravated robbery, and
burglary offenses given the gravity of these offenses.
{¶15} 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., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
-11-