[Cite as State v. Walker, 2011-Ohio-4505.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96076
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANDRE WALKER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-538052 and CR-541146
BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: September 8, 2011
ATTORNEY FOR APPELLANT
Rick Ferrara
1424 East 25th Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Ma’rion D. Horhn
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant, Andre Walker, appeals from his sentences in Cuyahoga
County Court of Common Pleas Case Nos. CR-538052 and CR-541146. For
the reasons stated herein, we affirm.
{¶ 2} In June and September 2010, Walker was indicted on various
charges in the two underlying cases. In CR-538052, he entered a plea of
guilty to one count of breaking and entering (R.C. 2911.13(A)). In CR-541146,
he entered a plea of guilty to one count of breaking and entering (R.C.
2911.13(A)) and one count of vandalism (R.C. 2909.05(B)(1)(a)). The court
nolled the remaining charges in each case.
{¶ 3} On November 3, 2010, the court sentenced Walker. In CR-541146,
the court imposed a prison term of 12 months on each of the two counts,
running concurrent. In CR-538052, the court imposed a prison term of 12
months, and further ordered the sentence to run consecutive to CR-541146, for
a total of 24 months, and consecutive to time being served in three other cases.
Walker was also advised of postrelease control and was ordered to pay
restitution in both cases.
{¶ 4} Walker timely filed this appeal. He raises two assignments of
error for our review. His first assignment of error provides as follows: “I.
The trial court erred when it failed to state its justification for imposing
consecutive sentences.” Walker argues that the trial court acted
contrary to law by failing to make a proper finding under R.C. 2929.14(E)(4) in
light of the United States Supreme Court’s rulings regarding judicial
fact-finding in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d
517, and automatic statutory revival in Quong Ham Wah Co. v. Indus. Acc.
Comm. of California (1921), 255 U.S. 445, 41 S.Ct. 373, 65 L.Ed. 723. We
recently rejected similar arguments in State v. Nimmer, Cuyahoga App. No.
95471, 2011-Ohio-1807, ¶ 6-8. We further find no merit to his argument that
the court was required to set forth its reasons and findings on the record.
{¶ 5} Indeed, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941
N.E.2d 768, the Ohio Supreme Court explicitly held that Oregon v. Ice “does
not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.” The court in
Hodge further instructed that “[t]rial court judges are not obligated to engage
in judicial fact-finding prior to imposing consecutive sentences unless the
General Assembly enacts new legislation requiring that findings be made.”
Id. at paragraph two and three of the syllabus. While Walker asks this court
to reject the re-enactment requirement in Hodge as improper, we are bound to
follow the law and decisions of the Ohio Supreme Court. Accordingly,
Walker’s first assignment of error is overruled.
{¶ 6} Walker’s second assignment of error provides as follows: “II. The
trial court acted contrary to law when it imposed a term of incarceration
beyond the statutory maximum.”
{¶ 7} Walker contends that the trial court imposed a prison sentence of
24 months, exceeding the maximum penalty for a fifth degree felony. We find
no merit to his argument.
{¶ 8} The record reflects that Walker was sentenced to 12 months in each
of the two cases. In CR-541146, the court imposed a prison term of 12 months
on each of the two counts, which were run concurrent. In CR-538052, the
court imposed a prison term of 12 months. Thus, the trial court did not
exceed the statutory maximum in either case. Instead, because a consecutive
sentence was imposed between the cases, Walker was required to serve 24
months in prison. As reflected in the sentencing entry in CR-538052, the
court imposed a 12-month sentence that was “run consecutive to CR 541146
for a total of 24 months, and consecutive to CR 527669, CR 527432, and CR
526317.” Contrary to Walker’s argument, we find no discrepancies in the
court’s journal entries, which speak for themselves. Walker’s second
assignment of error is overruled.
{¶ 9} Judgment affirmed.
It is ordered that appellee recover from 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 common pleas
court 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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR