State v. Torok12/2/2005
ected in the jury verdict or admitted by the defendant.'
(Emphasis sic.)" State v. Rupert, 11th Dist. No. 2003-L-154, 2005-Ohio-1098, at , quoting Blakely, supra, at 2537.
{ } As a general rule, sentences that fall within the statutory range do not violate the constitutional provision regarding excessive punishments. State v. Gladding (1990), 66 Ohio App.3d 502, 513, citing McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69. "'When a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.'" State v. Allen, 11th Dist. No. 2004-L-038, 2005-Ohio-1415, at , quoting United States v. Booker (2005), 125 S.Ct. 738, 750.
{ } Blakely and Apprendi are distinguishable from the instant case because they deal with sentencing for a single crime.
{ } We stated in Rupert, supra, at , that:
{ } "Ohio courts have consistently held Apprendi does not apply to consecutive sentences as long as the sentence does not exceed the statutory maximum for each individual underlying offense. See State v. Carter, 6th Dist. No. L-00-1082, [2002-Ohio-3433, at ] *. Accord, State v. Gambrel (Feb. 2, 2001), 2d Dist. No. 2000-CA-29, 2001 Ohio App. LEXIS 339, * at 4; State v. Brown, 2d Dist. No. 18643, [2002-Ohio-277], * at 5 *; State v. Wilson (Oct. 25, 2002), 6th Dist. No. L-01-1196, [2002-Ohio-5920]. Federal courts have also held consecutive sentences do not conflict with Apprendi. See United States v. Wingo (C.A.6, 2003), 76 Fed.Appx. 30, at 35; United States v. Sauceda (C.A.6, 2002), 46 Fed.Appx. 322, at 323. [See, also, Booker, supra.] Nothing in Blakely changes this rule." (Parallel citations omitted.)
{ } In the instant matter, the trial court stated at the sentencing hearing that: " * the Court finds that the minimum sentence would also demean the seriousness of [appellant's] conduct. This is the second and third convictions here, and I don't think the minimum sentences either would protect the public adequately." As such, the trial court complied with R.C. 2929.14(B) by imposing a nonminimum sentence on appellant.
{ } Here, appellant was not sentenced for a single crime, but rather was sentenced to a term of two years in prison on two convictions, to be served concurrently with each other, and consecutively with a previous sentence imposed in Lake County. The standard statutory range for third degree felonies is one to five years. R.C. 2929.14(A)(3). The trial court did not impose the maximum sentence, let alone sentence appellant to a term beyond the maximum. Rather, the trial court sentenced appellant within the statutory range for third degree felonies. As such, Blakely is not applicable to appellant's sentence. State v. Morales, 11th Dist. No. 2003-L-025, 2004-Ohio-7239, at , citing State v. Taylor, 158 Ohio App.3d 597, 2004-Ohio-5939. Thus, with respect to the instant case, Ohio's sentencing scheme is not unconstitutional in light of Apprendi, Blakely, and Booker.
{ } For the foregoing reasons, appellant's sole assignment of error is not well-taken. The judgment of the Ashtabula County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur.
Page 1 2 3 Ohio DUI Attorneys
DUI Lawyers
|