[Cite as State v. Fry, 2011-Ohio-2022.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :      Hon. Julie A. Edwards, J.
                                            :      Hon. Patricia A. Delaney, J.
-vs-                                        :
                                            :
DANIEL L. FRY                               :      Case No. 10CAA090068
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No 09CRI100501



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                         April 19, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

BRENDAN M. INSCHO                               JOHN R. CORNELY
140 North Sandusy Street                        21 Middle Street
Delaware, OH 43015                              P.O. Box 248
                                                Galena, OH 43021
Delaware County, Case No. 10CAA090068                                                   2

Farmer, P.J.

       {¶1}    On October 30, 2009, the Delaware County Grand Jury indicted appellant,

Daniel Fry, on one count of aggravated murder with a firearm specification in violation of

R.C. 2903.01 and R.C. 2941.145, and one count of tampering in violation of R.C.

2921.12. Said charges arose from the shooting death of appellant's wife, Mary Fry.

       {¶2}    On June 4, 2010, appellant pled guilty to murder and the firearm

specification, and no contest to the tampering count pursuant to a plea agreement. The

trial court found appellant guilty of the tampering count.

       {¶3}    A sentencing hearing was held on August 23, 2010. By judgment entry

filed August 24, 2010, the trial court sentenced appellant to an indefinite prison term of

fifteen years to life on the murder conviction, mandatory three years on the firearm

specification to be served prior to the indefinite sentence, and five years on the

tampering conviction, to be served consecutively to the other sentences.

       {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶5}    "THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE

MAXIMUM TERM OF FIVE YEARS FOR TAMPERING WITH EVIDENCE."

                                             II

       {¶6}    "THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES."
Delaware County, Case No. 10CAA090068                                                      3


                                              III

        {¶7}   "THE TRIAL COURT DID NOT COMPLY WITH O.R.C. §2929.11(B) AS

THE SENTENCE WAS NOT CONSISTENT WITH SENTENCES FOR SIMILAR

CRIMES."

        {¶8}   At the outset, we note the state raises the issue that appellant waived his

right to appeal his sentence by entering into a Crim.R. 11(F) agreement. The written

text of the Crim.R. 11(F) agreement filed June 4, 2010 states the following in pertinent

part:

        {¶9}   "4. Defendant agrees:

        {¶10} "C. To waive his/her rights to appeal, including, but not limited to the

grounds listed in Ohio Revised Code §2953.08."

        {¶11} R.C. 2953.08(D)(1) states the following:

        {¶12} "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."

        {¶13} What distinguishes the facts in this case from the exception of right to

appeal is that there was no agreement as to sentence, there was no discussion during

the plea of the relinquishment of the right to appeal, and in particular, no agreement as

to the sentence for the tampering conviction which is the subject of this appeal.

                                             I, II

        {¶14} Appellant claims the trial court erred in not entering specific findings on the

sentence imposed on the tampering with evidence conviction. We disagree.
Delaware County, Case No. 10CAA090068                                                  4

      {¶15} Appellant argues under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

and its progeny, the United States Supreme Court's decision in Oregon v. Ice (2009),

555 U.S. 160, should apply. We disagree because after the briefing was complete, the

Supreme Court of Ohio decided State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320,

wherein the court held the following at ¶39-40:

      {¶16} "For all the foregoing reasons, we hold that the decision of the United

States Supreme Court in 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. Because the statutory provisions are not revived,

trial 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.

      {¶17} "The trial court in this case did not err in imposing consecutive sentences

without applying R.C. 2929.14(E)(4) and 2929.41(A), and defendants such as Hodge

who were sentenced without application of the statutes are not entitled to resentencing."

      {¶18} Appellant also argues the trial court erred in imposing maximum,

consecutive sentences. Appellant was found guilty of tampering with evidence, a felony

of the third degree. Pursuant to R.C. 2929.14(A)(3), felonies of the third degree are

punishable by "one, two, three, four, or five years." Therefore, appellant received the

maximum allowable sentence.

      {¶19} As we noted previously, there was no plea agreement as to the sentence

to be imposed. The trial court specifically ordered a presentence investigation report,

and set a sentencing hearing wherein the victim's representatives could appear and
Delaware County, Case No. 10CAA090068                                                 5


make statements. June 4, 2010 T. at 28-30. A presentence investigation report was

not marked as an exhibit nor included in the record.

       {¶20} Based upon this lack of information and the facts as set forth by the state

during allocution, we find the tampering count was a distinct and separate act and in

fact, could have potentially hindered the trial of the case:

       {¶21} "By picking up the shell casings, your Honor, the State would have been

unable at least in the mind of Mr. Fry, to determine exactly the path that he walked in

shooting Mary Fry. But of course it is our belief that based upon the evidence that

would have been presented that he walked toward Mary Fry firing." June 4, 2010 T. at

24.

       {¶22} We conclude this allocution of facts supports a separate animus for the

crime of tampering with evidence, and there was potential harm if the State was forced

to bring the matter as an aggravated murder charge because of the "blackout defense"

asserted by appellant. June 4, 2010 T. at 18-19.

       {¶23} Upon review, we find no error as a matter of law in the trial court

sentencing appellant to the maximum, consecutive sentences nor any abuse of

discretion.

       {¶24} Assignment of Errors I and II are denied.

                                             III

       {¶25} Appellant claims his five year sentence on the tampering conviction, to be

run consecutively to the murder and firearm specification sentences, did not comply with

R.C. 2929.11(B) and was disparate to similar cases. We disagree.

       {¶26} R.C. 2929.11(B) states the following:
Delaware County, Case No. 10CAA090068                                                    6


       {¶27} "A sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing set forth in division (A) of this

section, commensurate with and not demeaning to the seriousness of the offender's

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders."

       {¶28} In appellant's sentencing memorandum filed August 20, 2010, the

following comparisons were made:

       {¶29} "Second, O.R.C. §2929.11(B) requires that the sentence be consistent

with sentences imposed for similar crimes by similar offenders.               The mandatory

minimum sentence of eighteen years to life is consistent with sentences imposed for

similar crimes by similar offenders. A number of individuals have been sentenced on

Aggravated Murder and other charges in the past few years from Delaware County,

Ohio. The chart below reflects those individuals and their sentences.

       {¶30} "[Chart, attached to this opinion as Exhibit A]

       {¶31} "The sentences range from twenty years to life to thirty years to life. All of

these individuals were convicted of Aggravated Murder, a more serious charge than the

Defendant, and another charge more serious than the Tampering with Evidence charge

in this case. Based on these sentences the minimum mandatory sentence of eighteen

years to life is consistent to other sentences imposed for similar crimes."

       {¶32} During the sentencing hearing, the trial court made a specific finding on

the issue of consecutive sentences as follows:

       {¶33} "THE COURT: ***The tampering with evidence will be served consecutive

to. It's the specific finding of this court that consecutive sentences should be imposed
Delaware County, Case No. 10CAA090068                                                     7


and they are being imposed. The five years on the tampering with evidence will be

served consecutive to the life term. The findings are such that the court can find no

reason why you should not be given the consecutive sentences to protect not only the

public but also they are not disproportionate to the seriousness of this offense.

       {¶34} "And the fact that you shot this person six times, and I believe a couple

people in their statements to the court under the victim impact raised the issue as to

whether or not you purposefully were shooting this person in such a way that she was

being tortured, we will never know because she's dead and you will never tell us. We

feel, the court feels that you are and your conduct is such that it puts the whole public in

the position of danger if you are out on the streets, so consecutive sentences are

imposed as to the life sentence, 15 to life as to the murder, 5 years for the tampering

with evidence and obviously the 3 year gun spec that has to be imposed.

       {¶35} "Do you understand, Sir?

       {¶36} "THE DEFENDANT: Yes." August 23, 2010 T. at 12-13.

       {¶37} It must first be recognized that this is a plea of a reduced charge

(aggravated murder to murder) with a specific reduction in number of years to be

served: life in prison versus fifteen years to life. R.C. 2929.02(A) and (B).

       {¶38} Although the trial court may or may not have been familiar with the cases

cited in its chart, this court does not have any basis to compare the cases except for

appellant's lack of a criminal record vis-à-vis the referenced cases.

       {¶39} It is clear from the allocution, the comments from the victim's family, and

the trial court statements, that this murder was a culmination of abusive and bizarre

behavior by appellant. The trial court concludes the secreting of the bullets and the
Delaware County, Case No. 10CAA090068                                                 8


disruption of the crime scene, coupled with the murder of appellant's wife was the worst

form of the offense.

      {¶40} Upon review, we fail to find that the record establishes disparate

sentencing.

      {¶41} Assignment of Error III is denied.

      {¶42} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, P.J.

Edwards, J. and

Delaney, J. concur.




                                            _s/ Sheila G. Farmer__________________




                                            _s/ Julie A. Edwards__________________




                                            _s/ Patricia A. Delaney________________
                                                         JUDGES


SGF/sg 330
Delaware County, Case No. 10CAA090068                                             9


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
DANIEL L. FRY                            :
                                         :
       Defendant-Appellant               :         CASE NO. 10CAA090068




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.




                                          _s/ Sheila G. Farmer__________________




                                          _s/ Julie A. Edwards__________________




                                          _s/ Patricia A. Delaney________________
                                                      JUDGES
