State v. Torok12/2/2005
{ } Appellant, Timothy Torok, appeals from the October 20, 2004 judgment entries of the Ashtabula County Court of Common Pleas, in which he was sentenced for illegal assembly or possession of chemicals for the manufacture of drugs.
{ } On April 19, 2004, in Case No. 2004-CR-050, appellant was indicted by the Ashtabula County Grand Jury on two counts: count one, felony drug possession, a felony of the fifth degree, in violation of R.C. 2925.11; and count two, illegal assembly or possession of chemicals for the manufacture of drugs, a felony of the third degree, in violation of R.C. 2925.041. On April 23, 2004, appellant entered a not guilty plea at his arraignment.
{ } On May 24, 2004, in Case No. 2004-CR-150, appellant was indicted by the Ashtabula County Grand Jury on two counts: count one, illegal assembly or possession of chemicals for the manufacture of drugs, a felony of the third degree, in violation of R.C. 2925.041; and count two, failure to comply with order or signal of police officer, a felony of the third degree, in violation of R.C. 2921.331. On May 28, 2004, appellant entered not guilty pleas to the foregoing countsat his arraignment.
{ } On July 16, 2004, appellant withdrew his not guilty pleas in both Case Nos. 2004-CR-050 and 2004-CR-150. With respect to Case No. 2004-CR-050, appellant entered a plea of guilty to count two, illegal assembly or possession of chemicals for the manufacture of drugs. Count one, felony drug possession, was dismissed. With regard to Case No. 2004-CR-150, appellant entered a guilty plea to count one, illegal assembly or possession of chemicals for the manufacture of drugs. Count two, failure to comply with order or signal of police officer, was dismissed. On July 16, 2004, the trial court accepted appellant's guilty pleas in both Case Nos. 2004-CR-050 and 2004-CR-150.
{ } Pursuant to the trial court's October 20, 2004 judgment entries, appellant was sentenced to a term of two years in prison on each conviction, to be served concurrently with each other, and consecutively with a sentence previously imposed in Lake County, Ohio, Case No. 2004-CR-033. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignment of error:
{ } "Sentencing in this case violated the Apprendi doctrine as explained in Blakely v. Washington and was therefore unconstitutional."
{ } In his sole assignment of error, appellant argues that his sentencing was unconstitutional based on Apprendi v. New Jersey (2000), 530 U.S. 466, and Blakely v. Washington (2004), 542 U.S. 296. Specifically, appellant alleges that his constitutional rights were violated when he received a sentence greater than the minimum based on findings under R.C. 2929.14(B) that were not made by a jury. Appellant further contends that R.C. 2929.14(E)(4) is unconstitutional in light of Blakely.
{ } R.C. 2929.14(B) provides in part that:
{ } " * if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
{ } "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{ } "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{ } R.C. 2929.14(E)(4) states in part that:
{ } " f multipl
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