[Cite as State v. Triggs, 2010-Ohio-4178.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 12-10-03

        v.

DAVID TRIGGS,                                              OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2009 CR 53

                                       Judgment Affirmed

                          Date of Decision:     September 7, 2010




APPEARANCES:

        Joseph A. Benavidez for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-10-03



WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant David Triggs (“Triggs”) brings this appeal from

the judgment of the Court of Common Pleas of Putnam County sentencing him to

a total of ten years in prison. For the reasons set forth below, the judgment is

affirmed.

       {¶2} On September 25, 2009, the Putnam County Grand Jury indicted

Triggs on three counts of rape in violation of R.C. 2907.02 and one count of

kidnapping in violation of R.C. 2905.01, all felonies of the first degree. Triggs

entered pleas of not guilty to all charges. On October 5, 2009, Triggs filed a not

guilty by reason of insanity plea and a motion requesting a competency evaluation.

Pursuant to a negotiated plea with the State, Triggs, on December 30, 2009,

changed his plea to guilty to the first two counts of the indictment which were

amended to sexual battery in violation or R.C. 2907.03, felonies of the third

degree. The State, in exchange agreed to dismiss all remaining counts and to

remain silent on sentencing. On February 16, 2010, a sentencing hearing was held

and trial court imposed five years in prison on each count and ordered the

sentences to be served consecutively. Triggs appeals from this judgment and

raises the following assignment of error.

       [Triggs] is entitled to an appeal of his sentence as a matter of
       right pursuant to the trial court imposing maximum sentences
       and sentencing [Triggs] contrary to law.


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       {¶3} Triggs sole assignment of error alleges that the trial court erred by

imposing maximum, consecutive sentences. When determining the appropriate

sentence, the trial court may consider charges and their supporting facts that are

dismissed pursuant to a plea agreement when the defendant is entering a plea to

reduced charges. State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926

N.E.2d 714. “[T]rial courts have full discretion to impose a prison sentence

within the statutory range and are no longer required to make findings or give

their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37, 846 N.E.2d

1. Appeals of a sentence for any reason, other than an appeal of the application of

the factors in R.C. 2929.12, shall be reviewed using a clear and convincing

evidence standard as set forth in R.C. 2953.08(G). See concurring opinion in

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶42, 896 N.E.2d 124.

       {¶4} Here, Triggs argues that the trial court imposed a sentence as if he

“tendered pleas of guilt (sic) to charges of rape instead of sexual battery.” Br. 3.

This court notes that before entering the guilty pleas, Triggs was warned that he

could receive sentences of up to five years for each conviction and that they could

be served consecutively.




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Case No. 12-10-03



      Q. Do you understand that the amendment would be on each
      of two counts, being Count 1, rape, being amended to sexual
      battery, and Count 2, rape, being amended to sexual battery?

      A.    Yes, your Honor.

      Q. Do you understand that each of those counts carries a
      potential sentence of up to five years in prison and a potential
      fine of up to $10,000?

      A.    Yes, your Honor.

      Q. Do you understand that the counts could be ordered
      consecutive, meaning that the prison term, if ordered, could be
      ordered to be served one after another, meaning for a total
      potential time of up to 10 years in prison?

      A.    Yes, your Honor.

      ***

      Q. What plea are you entering to Count 1 as amended, being
      sexual battery, a felony of the third degree?

      A.    Guilty, Your Honor.

      Q. Are you entering that plea voluntarily?

      A.    Yes, Your Honor.

      Q. What plea are you entering to Count 2, sexual battery, a
      felony of the third degree?

      A.    Guilty, Your Honor.

      Q. Are you entering that plea voluntarily?

      A.    Yes, Your Honor.



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Case No. 12-10-03



Dec. 30, 2009, Tr. 3-4.               At the sentencing hearing, the trial court gave

consideration to the pre-sentence investigation and other reports in the record.

Based upon the information contained in those documents, as well as Triggs’ own

statements, the trial court made the following statements at sentencing.

         The Court: As indicated, the record in front of me shows that
         there are repeated forcible violent acts of rape that occurred in
         the events that are before the Court here today. There also
         appears to be questions about your past sexual activity that
         have been raised in the pre-sentence report. The activities
         appear to be a pattern in which you are taking advantage of
         other individuals including in this case of a significantly
         developmentally disabled individual, and that they were
         repeated acts that you knew to be wrong, that you have in the
         past denied were your responsibility, and clearly were violent
         acts of sexual offenses.

Feb. 16, 2010, Tr. 10. Although the offenses to which Triggs entered a guilty plea

were amended, the underlying facts did not change. All of the statements made

by the trial court concerning the underlying facts and patterns of behavior were

set forth in the pre-sentence investigation.1 The trial court may rely upon the facts

set forth in the pre-sentence investigation when determining the sentence to

impose. The sentence ordered was within the statutory range. Thus, the trial

court did not err and the assignment of error is overruled.




1
   The pre-sentence investigation included a claim by Triggs’ mother-in-law that he forcibly raped her and
a claim by a different cousin that Triggs forcibly raped her. It also contained the victim’s statements that
Triggs had held her down and forcibly raped her causing pain and injury.


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       {¶5} Having found no error prejudicial to the appellant, the judgment of

the Court of Common Pleas of Putnam County is affirmed.

                                                           Judgment Affirmed

SHAW and PRESTON, J.J., concur in Judgment Only.

/jlr




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