[Cite as State v. Miler, 2011-Ohio-1304.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 11-10-10

        v.

PORT E. MILER,                                             OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Paulding County Common Pleas Court
                            Trial Court No. CR-10-528

                                       Judgment Affirmed

                             Date of Decision: March 21, 2011




APPEARANCES:

        John S. Shaffer for Appellant

        Joseph R Burkard for Appellee
Case No. 11-10-10



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Port E. Miler (“Miler”) appeals from the

judgment of the Court of Common Pleas of Paulding County finding him guilty of

aggravated murder and sentencing him to life imprisonment without parole. For

the reasons set forth below, the judgment is affirmed.

       {¶2} On May 9, 2010, Miler and his victim were in the victim’s apartment

engaging in heroin use. The victim had a large amount of cash from a prior sale of

heroin to a third party. Miler then proceeded to rob the victim by slitting his throat

with multiple knives and taking the cash. Miler then returned to his home and

went into the bathroom. His ex-wife, who resided with him, entered the bathroom

and saw the blood and the knives. She asked Miler what happened and he told her

that he had killed his victim.

       {¶3} On June 10, 2010, the Paulding County Grand Jury indicted Miler on

one count of aggravated murder, in violation of R.C. 2903.01(B). Miler entered a

plea of not guilty. On July 14, 2010, Miler changed his plea to guilty. The

sentencing hearing was held on September 2, 2010. The trial court sentenced

Miler to life imprisonment without the possibility of parole. Miler appeals from

this judgment and raises the following assignment of error.

       The trial court abused its discretion in sentencing [Miler] to the
       maximum sentence provided by law.


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Case No. 11-10-10



        {¶4} In his sole assignment of error, Miler argues 1) that the trial court

should not have imposed the maximum sentence and 2) that imposition of the

maximum sentence is cruel and unusual punishment. Trial courts have discretion

to impose a prison sentence within the statutory range for the offense from which

the conviction stems. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470. “As a general rule, a sentence that falls within the terms of a valid

statute cannot amount to a cruel and unusual punishment.” State v. Hairston, 118

Ohio St.3d 289, 2008-Ohio-2338, ¶21, 888 N.E.2d 1073 (quoting McDougle v.

Maxwell (1964), 1 Ohio St.2d 68, 70, 203 N.E.2d 334). An assignment of error

challenging imposition of a maximum sentence pursuant to R.C. 2929.14 will only

be sustained if appellant shows that the judgment was clearly and convincingly

contrary to law. State v. Hubbard, 2d Dist. No. 23363, 2010-Ohio-3910, ¶26.

However, a review of the application of the factors in R.C. 2929.12(B) is

conducted under an abuse of discretion review.1

        As stated by Justice Kennedy in his opinion concurring in part,
        “The Eighth Amendment does not require strict proportionality
        between crime and sentence. Rather, it forbids only extreme
        sentences that are ‘grossly disproportionate’ to the crime.”




1
    In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E. 2d 124, Justices O’Connor, Moyer,
O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this position, although the first
three would use both standards of review in all cases. However, there was no majority opinion requiring a
two part review.


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Case No. 11-10-10



State v. Weitbrecht (1999), 86 Ohio St.3d 368, 371-72, 715 N.E.2d 167 (quoting

the concurring opinion in Harmelin v. Michigan (1991), 501 U.S. 957, 1001, 111

S.Ct. 2680, 115 L.Ed.2d 836). “Cases in which cruel and unusual punishments

have been found are limited to those involving sanctions which under the

circumstances would be considered shocking to any reasonable person.”

McDougle, supra at 70.

      {¶5} In this case, Miler entered a guilty plea to one count of aggravated

murder.    The trial court had the options of sentencing Miler to 1) life

imprisonment with parole eligibility after twenty years of imprisonment; 2) life

imprisonment with parole eligibility after twenty-five years of imprisonment; 3)

life imprisonment with parole eligibility after thirty years of imprisonment; or 4)

life imprisonment without parole. Miler was aware that these were the only

sentencing options available when he entered his guilty plea. A review of the

record indicates that Miler had a long record of criminal offenses involving

assaults and various drug offenses. Miler was even on community control at the

time of the instant offense. In killing his victim, Miler attempted to cut his

victim’s throat in order to steal his money. When the first knife was unable to

complete the task, Miler went to the kitchen and retrieved a second, sharper knife,

went back to the bedroom and finished killing his victim.          The trial court

specifically found that this was the most brutal case it had ever seen. Sept. 2,

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Case No. 11-10-10



2010, Tr. 9. A review of the evidence before the trial court does not indicate that

the trial court abused its discretion in its application of the factors set forth in R.C.

2929.12(B). In addition, the sentence imposed was within the statutory limits set

forth and does not shock the sense of justice. Thus, it is neither clearly and

convincingly contrary to law2 nor a cruel and unusual punishment and does not

violate R.C. 2929.14. The assignment of error is overruled.

         {¶6} The judgment of the Court of Common Pleas of Paulding County is

affirmed.

                                                                                  Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




2
 Although Miler argues that the sentence is an abuse of discretion, the correct standard of review is clearly
and convincingly contrary to law.

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