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State v. McGonnell6/23/2005
{ } Defendant-appellant Christopher McGonnell appeals from his conviction and the sentence imposed after he entered a guilty plea to a fourth-degree felony charge of driving under the influence of alcohol ("DUI").
{ } Appellant complains that the trial judge who took his plea and sentenced him lacked authority to do so, since she was not the judge originally assigned to his case. He further asserts the sentence she imposed complied with neither the applicable Ohio statutes nor the United States Supreme Court's opinion in Blakely v. Washington (2004), 542 U.S.__, 124 S.Ct. 2531.
{ } A review of the record, however, compels this court to disagree with appellant, and to find the trial judge committed no error. Consequently, appellant's conviction and his sentence are affirmed.
{ } Appellant's conviction results from a routine traffic stop. In the late afternoon of February 13, 2004, a Solon police officer noticed a vehicle proceeding westbound on Bainbridge Road was weaving. The officer stopped the vehicle, discovered appellant was driving in spite of having "9 open various suspensions" of his license, and cited appellant for DUI.
{ } The case eventually proceeded to the county grand jury, which indicted appellant on one count of DUI with furthermore clauses for three previous DUI convictions. Appellant entered a plea of not guilty.
{ } A little over a month later, the case was called for a hearing. When court convened, the trial judge noted for the record that she was "taking the plea on behalf of" the originally-assigned judge, who was "unavailable." The judge immediately asked, "Do both parties and the Defendant waive any objection to this Court taking the plea?" Defense counsel responded, "We waive, your Honor." The prosecutor agreed; appellant made no response.
{ } The prosecutor then informed the court appellant had agreed to enter a plea of guilty to the indictment, a fourth-degree felony "punishable by a mandatory term of incarceration *of 6 to 30 months," along with additional consequences.
{ } After the trial judge ensured defense counsel concurred with the agreement, she asked appellant if he understood everything said up to that point. Appellant answered, "Yes, I do, your Honor."
{ } The trial court thereupon conducted a careful colloquy with appellant. Only thereafter was appellant's guilty plea accepted.
{ } The court then stated, "It's my understanding that the Defendant is asking to be sentenced today by this Court, is that correct?" Defense counsel answered affirmatively, so the court indicated it again "need both of you to waive any objection to me handling the [probation violation] and the sentencing." In answer, defense counsel stated, "We will waive." The prosecutor agreed.
{ } The trial court listened to defense counsel, a witness for appellant and appellant himself before reviewing appellant's criminal record and stating she counted "13" previous DUI convictions dating from 1979. In addition, appellant had "4 prior prison terms," was "on probation in two cases at the time of this offense," and had "offended in most of the counties in Northeast Ohio." The court observed that appellant was "an amazingly busy man" who "constantly" had been "in trouble" since 1979, thus making him "one of the more offensive (sic) people" it had encountered.
{ } Based upon the foregoing, the court sentenced appellant to a prison term of twenty-six months. The original trial judge signed the journal entry of appellant's sentence.
{ } Appellant challenges his conviction and sentence with the following three assignments of error:
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