[Cite as State v. Arnold, 2017-Ohio-1384.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27218
:
v. : T.C. NO. 15-CR-2916
:
ZANE B. ARNOLD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___14th ___ day of _____April_____, 2017.
...........
HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn,
Ohio 45324
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Zane B. Arnold was found guilty on his guilty pleas of possession of cocaine
(27g but less than 100g), a felony of the first degree; possession of heroin (10g but less
than 50g), a felony of the second degree; and aggravated possession of drugs (5x bulk
but less than 50x bulk), also a felony of the second degree. He was sentenced to a five-
-2-
year mandatory term on each offense, to be served concurrently. The court also
suspended Arnold’s driver’s license for five years, ordered him to pay court costs, and
imposed mandatory terms of post-release control. Arnold appeals, arguing that the court
should have imposed a three-year sentence.
{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.
{¶ 3} On September 25, 2015, Arnold was indicted for possession of cocaine,
possession of heroin, and two counts of aggravated possession of drugs
(methamphetamine and fentanyl). He pled not guilty and filed a motion to suppress,
which was overruled after a hearing. On July 14, 2016, Arnold pled guilty to possession
of cocaine, possession of heroin, and aggravated possession of drugs
(methamphetamine), as charged in the indictment; the fourth count, aggravated
possession of drugs (fentanyl), was dismissed. The range of potential sentences for
possession of cocaine, a felony of the first degree, was three to eleven years, and for the
other offenses (felonies of the second degree), it was two to eight years. However, the
parties agreed that Arnold would receive a prison sentence to “be capped at a maximum
of five years.” After a presentence investigation, the court imposed a five-year sentence
on each count, to be served concurrently, along with other sanctions described above.
{¶ 4} As a preliminary matter, we must address whether Arnold may assign his
sentence as error, where the sentence was an agreed sentence. R.C. 2953.08(D)(1)
provides that “[a] sentence imposed upon a defendant is not subject to review under this
section if the sentence is authorized by law, has been recommended jointly by the
defendant and the prosecution in the case, and is imposed by a sentencing judge.” In
accordance with R.C. 2953.08(D), we have held that agreed sentences are not
-3-
reviewable on appeal. State v. DeWitt, 2d Dist. Montgomery No. 24437, 2012-Ohio-635,
¶ 13; State v. Turner, 2d Dist. Montgomery No. 24421, 2011-Ohio-6714. We have also
held that a sentence within a jointly-recommended range is a jointly-recommended
sentence for purposes of R.C. 2953.08. State v. Chattams, 2d Dist. Montgomery No.
26151, 2015-Ohio-453, ¶ 5, citing DeWitt at ¶ 13-15; cf. State v. Connors, 2d Dist.
Montgomery No. 26721, 2016-Ohio-3195, fn. 2. An agreement to “cap” a sentence is
analogous to an agreement to impose a sentence within an agreed range, for purposes
of R.C. 2953.08.
{¶ 5} Arnold concedes that his sentence was authorized by law. The prison terms
were within the statutory ranges for felonies of the first and second degree, and were “not
contrary to law”; mandatory prison time was required. He also does not dispute that the
sentence imposed by the trial judge was within the jointly-recommended range.
Accordingly, Arnold’s agreed-upon sentence is not reviewable on appeal. Dewitt at ¶ 15;
Turner at ¶ 33.
{¶ 6} The assignment of error is overruled.
{¶ 7} The judgment of the trial court will be affirmed.
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WELBAUM, J. and TUCKER, J., concur.
Copies mailed to:
Heather N. Jans
David R. Miles
Hon. Mary L. Wiseman