[Cite as State v. McPherson, 2011-Ohio-3098.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Julie A. Edwards, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10 CAA 11 0084
SHAWN L. MCPHERSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR I 06 0332
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 23, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRENDAN M. INSCHO SCOTT CULBERT
ASSISTANT PROSECUTOR Post Office Box 265
140 North Sandusky Street Delaware, Ohio 43015
Sandusky, Ohio 43015
Delaware County, Case No. 10 CAA 11 0084 2
Wise, J.
{¶1} Appellant Shawn L. McPherson appeals from his felony sentencing for
theft in the Delaware County Court of Common Pleas. The relevant facts leading to this
appeal are as follows.
{¶2} On August 31, 2010, appellant pled guilty to four counts of theft, R.C.
2913.02(A)(1), in the Delaware County Court of Common Pleas. Two counts were
felonies of the fifth degree, while the other two were first-degree misdemeanors. The
incidents leading to these charges were connected to several store thefts of college
textbooks which appellant later purportedly sold for cash.
{¶3} On October 22, 2010, following the preparation of a presentence
investigation, appellant was sentenced, inter alia, to twelve months in prison for each
fifth-degree felony, to be served consecutively, and six months on each misdemeanor,
to be served concurrently, for a total prison term of twenty-four months.
{¶4} On November 8, 2010, appellant filed a notice of appeal. He herein raises
the following two Assignments of Error:
{¶5} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE
MAXIMUM TERM OF TWELVE MONTHS FOR FELONY THEFT.
{¶6} “II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES.”
Delaware County, Case No. 10 CAA 11 0084 3
I., II.
{¶7} In his First and Second Assignments of Error, appellant contends the trial
court erred in sentencing him to maximum and consecutive prison terms.1
{¶8} As an initial matter, we note the State has responded in part that appellant
waived his right to appeal by entering into a plea agreement with the prosecutor.
{¶9} “It is well-established that a sentence that is agreed upon as part of a
negotiated plea, and that does not exceed the statutory maximum sentence applicable
to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D).” State v.
Yeager, Carroll App.No. 03CA786, 2004-Ohio-3640, ¶ 21 (additional citations omitted).
However, in the case sub judice, the record indicates that the plea agreement did not
include a recommended sentence; instead, the parties agreed that the case would be
referred for a presentence investigation. At the sentencing hearing, the State asked “for
the full three years ***.” Tr. at 5. Defense counsel did not explicitly acquiesce to such a
term. See Tr. at 8. In these circumstances, we find appellant has not waived his right to
challenge his sentence upon direct appeal.
{¶10} Proceeding to the merits, we note the Ohio Supreme Court's Foster
decision [109 Ohio St.3d 1, 2006-Ohio-856] holds that judicial fact finding is not required
before a court imposes non-minimum, maximum or consecutive prison terms. See, e.g.,
State v. Williams, Muskingum App. No. CT2009-0006, 2009-Ohio-5296, ¶ 19, citing
State v. Hanning, Licking App.No. 2007CA00004, 2007-Ohio-5547, ¶ 9. Subsequent to
Foster, in a plurality opinion, the Ohio Supreme Court established a two-step procedure
for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
1
Appellant did not attach a copy of the judgment entry under appeal to his brief. See
Loc.App.R. 9(B).
Delaware County, Case No. 10 CAA 11 0084 4
896 N.E.2d 124. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first step is
satisfied, the second step requires the trial court's decision be reviewed under an
abuse-of-discretion standard. Id.
{¶11} Furthermore, in State v. Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768, 2010–
Ohio–6320, the Ohio Supreme Court recently held, at paragraph two of the syllabus,
that the United States Supreme Court's decision in Oregon v. Ice2 did not revive Ohio's
former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A),
which were held unconstitutional in Foster.
{¶12} In the case sub judice, the trial court stated in its entry that it had
considered the factual background, the oral statements of the parties, and the
presentence investigation. See Sentencing Entry, October 27, 2010, at 2.
{¶13} The court further considered the negotiations conducted in the case,
factors laid out in the pre-sentencing report, arguments of counsel, a letter written to the
court by appellant’s “significant other”, and a statement by appellant. The court also
specifically referenced the purposes of sentencing set forth in 2929.11 and the
seriousness and recidivism factors found in 2929.22 and 2929.12. Furthermore, the
court took into account appellant’s prior criminal convictions and failure to respond to
the previous criminal sanctions imposed on those convictions. For example, appellant
had attempted a textbook theft just three days following his last release from prison. On
the day of the attempt, appellant was arrested on a traffic warrant and then released
2
555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517.
Delaware County, Case No. 10 CAA 11 0084 5
over the weekend. That next Monday, appellant was arrested again for a theft from a
university book store in Richmond, Indiana. See Tr. at 6-7.
{¶14} Based on our review of the record, and pursuant to Foster and Kalish, we
do not find the trial court acted clearly and convincingly contrary to law or abused its
discretion in rendering maximum and consecutive sentences under the facts and
circumstances of this case.
{¶15} Appellant's First and Second Assignments of Error are therefore
overruled.
{¶16} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Delaware County, Ohio, is hereby affirmed.
By: Wise, P. J.
Edwards, J., and
Delaney, J., concur.
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JUDGES
JWW/d 0602
Delaware County, Case No. 10 CAA 11 0084 6
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SHAWN L. MCPHERSON :
:
Defendant-Appellant : Case No. 10 CAA 11 0084
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES