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State v. Pearce6/30/2005
DECISION AND JUDGMENT ENTRY
{ } This is an appeal from a judgment of conviction and sentence entered by the Ottawa County Court of Common Pleas after defendant-appellant, Richard Pearce, entered a plea of guilty to one count of attempted misuse of a credit card, a felony of the fifth degree. Appellant was sentenced to a maximum prison term of twelve months, which sentence he now challenges through the following assignments of error:
{ } "I. Assignment of Error One
{ } "The constitutional rights of Appellant were violated when he was given the maximum possible sentence for a felony of the fifth degree based on findings of fact that were not agreed to by Appellant or his counsel nor found by a jury.
{ } "II. Assignment of Error Two
{ } "The trial court erred in sentencing Appellant to the maximum possible sentence under R.C. 2929.14(C)."
{ } On May 19, 2004, appellant was indicted and charged with 28 offenses, including theft, engaging in a pattern of corrupt activity, misuse of a credit card, passing bad checks, falsification, and forgery. The crimes all arose out of allegations that appellant obtained credit cards and other accounts in his grandmother's name without her authorization and then used those accounts for personal gain. The indictment also alleged that appellant used his grandmother's credit cards without her consent and accumulated debt in his 86 year old grandmother's name without her permission.
{ } The case initially proceeded to a jury trial, but after the victim testified for a short time, the court took a recess. When the parties returned to court, they announced that they had reached a plea agreement under which appellant would plead guilty to one count of attempted misuse of a credit card, a fifth degree felony, and the state would dismiss the remaining charges.
{ } On September 30, 2004, the sentencing hearing was held in the case below. Initially, the court asked appellant if he had anything to say in mitigation, to which appellant responded "no." The court then heard from appellant's attorney regarding appellant's history of alcohol abuse and attempts to enter treatment programs, and from appellant's grandmother, the victim, who stated that appellant had made no attempts to apologize to her. The court then recited appellant's extensive criminal history which dates back to 1975 and includes convictions for burglary, possession of stolen property, possession of amphetamines, theft, criminal trespass, driving under the influence , driving under suspension, theft by deception, failure to appear, criminal damaging, nonsupport of dependents, carrying a concealed weapon, having a weapon while under a disability, disorderly conduct, and violating his probation. The court then reviewed the circumstances of the current case, noting that although appellant pled guilty to one offense of attempted misuse of a credit card, it was part of a scheme to procure money from appellant's grandmother. The court then proceeded to sentence appellant as follows:
{ } "In sentencing in a felony case, the Court is required to protect, or to fashion a penalty which will both protect the public and punish the offender, the public in this case, being the grandmother.
{ } "There is no prison, no mandatory prison term required.
{ } "In fashioning a penalty, the Court must take a look at what are called seriousness and recidivism factors. Those are indicators that tell the judge whether this should be considered a more serious or less serious type of offense and whether or not the Defendant is more or less likely to commit future offenses.
{ } "The more serious f
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