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State v. McGonnell6/23/2005
UI convictions. Pursuant to R.C. 4511.99(A)(4)(a)(1), R.C. 2929.13(G) and R.C. 2929.14(D)(4), the offense was a fourth-degree felony, for which an offender must be sentenced to a "mandatory term" of incarceration, and may be sentenced to a definite prison term of six to thirty months. State v. Bonds, Cuyahoga App. No. 83866, 2004-Ohio-3483, ; State v. Moyar, Auglaize App. No. 2-03-37, 2004-Ohio-3017, .
{ } Before imposing a sentence greater than the minimum term, R.C. 2929.14(B)(1) requires the trial court to make a finding that "the offender previously has served a prison term." The trial court in this case made that finding, and, in addition, adequately stated its reason for choosing a near-maximum term, viz., only luck had prevented appellant up to the time of the instant offense from killing someone because of his drunk driving . Based upon the trial court's comments, therefore, appellant's sentence was in compliance with statutory requirements. State v. Winters, Clermont App. No. CA2003-01-007, 2003-Ohio-6385.
{ } Appellant's second assignment of error, accordingly, also is overruled.
{ } In a cursory manner, appellant asserts in his third assignment of error that, based upon the recent United States Supreme Court's decision in Blakely v. Washington, supra, the sentence imposed denied him his constitutional right to a jury trial. This court does not accept appellant's assertion.
{ } First, the record reflects appellant never raised the constitutionality of the Ohio sentencing statute on any ground as an issue below. State v. Williams (1977), 51 Ohio St.2d 112.
{ } Moreover, Blakely is not implicated in this case. The record reflects that in determining the twenty-six month term was appropriate, the trial court relied upon appellant's lengthy criminal record, which included prison terms along with convictions for the same offense.
{ } Blakely, on the other hand, applied a previous United States Supreme Court decision to a sentencing proceeding, viz., Apprendi v. New Jersey (2000), 530 U.S. 466, and held that a trial court cannot use any fact other than a prior conviction to sentence a defendant to more than the statutory maximum, unless that fact was found beyond a reasonable doubt by a jury.
{ } The record demonstrates the trial court did not violate appellant's constitutional rights in pronouncing sentence.
{ } Accordingly, appellant's third assignment of error also is overruled.
{ } Appellant's conviction and sentence are affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO JUDGE
COLLEEN CONWAY COONEY, P.J. and MARY EILEEN KILBANE, J. CONCUR
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