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State v. Huff10/20/2005
{ } Defendant-appellant, Matthew S. Huff ("appellant"), appeals from the judgment of the Franklin County Court of Common Pleas sentencing him to a five-year term of imprisonment following his guilty plea to one count of robbery, a felony of the second degree.
{ } On November 22, 2003, Tara Patelle ("Patelle"), along with her husband and daughter, was working at a gas station ("the store") in Grove City, Ohio. In the afternoon, appellant entered the store and requested cigarettes. During this transaction, appellant ordered Patelle's daughter and husband to get down on the floor. Appellant reached into his pocket, took out a gun, pointed it at Patelle, and demanded money. Patelle gave appellant $1,790, which was all the money in the store. Appellant took the money and a carton of cigarettes, then left. At that point, Patelle pushed the store's panic button, which dispatched police officers.
{ } Appellant was seen driving a pick-up truck with temporary tags, which were traced to John Huff in Circleville, Ohio. Mr. Huff informed the police that although the pick-up truck was registered to him, his son (appellant) was the only person who drove it. The police obtained a photograph of appellant and showed it to the victims, all of whom identified appellant as the perpetrator. Appellant, aware the police were investigating the matter, turned himself in and voluntarily gave a statement implicating himself in the crime.
{ } On March 17, 2004, the trial court accepted appellant's plea of guilty and continued the case for sentencing so that a pre-sentence investigation could be conducted. The trial court expressly stated that while it agreed to continue the matter so that it could consider the pre-sentence investigation report, there was no promise of probation. (Tr., Mar. 17, 2004, at 5.) The trial court asked appellant if he understood, and appellant replied in the affirmative. Id. The trial court set the matter for sentencing on May 14, 2004.
{ } On October 1, 2004, the court held a sentencing hearing, and inquired as to the time delay between the date of appellant's sentencing and his guilty plea in March of 2004. Appellant's counsel explained:
My client was arrested shortly before sentencing, the original sentencing date in this case, in Pickaway County on a robbery case. He was indicted and subsequently sentenced in front of Judge Neese on a six-year prison sentence. He's currently serving that prison sentence in Pickaway Correctional Institution. That's what the delay was in this case between the original sentencing date and the conveyance of my client. (Tr., Oct. 1, 2004, at .) The record discloses that appellant's subsequent criminal conviction for robbery ("the Pickaway County robbery"), occurred in May 2004, after his commission of the instant offense. Id. at 9. Appellant's counsel requested that the trial court impose a minimum sentence to run concurrent with the sentence appellant was serving for the Pickaway County robbery, which counsel argued, could not be considered during sentencing in the instant matter. As reflected by the dialogue between the trial court and appellant's counsel, the trial court rejected those arguments, and sentenced appellant to five years of imprisonment, to run consecutive to the sentence he was serving for the Pickaway County robbery.
{ } Following journalization of the court's sentencing entry, appellant appealed to this court, asserting the following two assignments of error for our review:
Assignment of Error No. 1
The trial court erred in imposing non-minimum sentences on Appellant where the facts necessary to impose such a sentence had neither been proven to a jury
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