[Cite as State v. Hill, 2012-Ohio-2531.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                          Hon. William B. Hoffman, J.
                                                    Hon. John W. Wise, J.
-vs-
                                                    Case No. CT2011-0063
ROBERT L. HILL

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. CR2011-0135


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          June 7, 2012



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

D. MICHAEL HADDOX                               DAVID A. SAMS
PROSECUTING ATTORNEY                            Box 40
RON WELCH                                       West Jefferson, Ohio 43162
ASSISTANT PROSECUTOR
27 North Fifth Street
Zanesville, Ohio 43701
Muskingum County, Case No. CT2011-0063                                                   2

Wise, J.

       {¶1}    Defendant-appellant Robert L. Hill appeals his sentence and conviction

on one count of robbery following a guilty plea in the Muskingum County Court of

Common Pleas.

       {¶2}    Plaintiff-appellee is the State of Ohio.

                        STATEMENT OF THE CASE AND FACTS

       {¶3}     On June 1, 2011, Defendant-Appellant Robert Hill was indicted on one

count of Robbery, a felony of the second degree; one count of Theft, a felony of the

fourth degree; and one count of Possession of Criminal Tools, a felony of the fifth

degree.

       {¶4}    On October 5, 2011, pursuant to a negotiated plea agreement, Appellant

entered a plea of guilty to an amended charge of Robbery, a felony of the third degree.

In exchange, the State agreed to Nolle the remaining two charges.

       {¶5}    At the sentencing hearing on November 7, 2011, the trial court sentenced

Appellant to five (5) years in prison.

       {¶6}    Appellant now appeals, assigning the following error for review:

                                ASSIGNMENT OF ERROR

       {¶7}    “I. THE DEFENDANT-APPELLANT WAS SENTENCED TO A 60-

MONTH PRISON TERM UNDER R.C. 2929.14(A)(3)(a) IN VIOLATION OF OHIO LAW

AND THE STATE AND FEDERAL CONSTITUTIONS. “

                                              I.

       {¶8}    In his sole Assignment of Error, Appellant argues that the trial court erred

in sentencing. We disagree.
Muskingum County, Case No. CT2011-0063                                                     3


       {¶9}    “It is well-established that a sentence that is agreed upon as part of a

negotiated plea, and that does not exceed the statutory maximum sentence applicable

to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D).” State v.

Yeager, Carroll App.No. 03CA786, 2004–Ohio–3640, ¶ 21 (additional citations omitted).

       {¶10} However, in the case sub judice, the record indicates that the plea

agreement did not include a recommended sentence; instead, the parties agreed that

the case would be referred for a presentence investigation. At the sentencing hearing,

the State asked for the full sixty months. (T. at 3-4). Defense counsel asked the court to

consider a positional thirty-six month prison sentence. (T. at 5). In these circumstances,

we find Appellant has not waived his right to challenge his sentence upon direct appeal.

       {¶11}    We begin our analysis with the premise that the trial court has wide

discretion to sentence an offender within the allowable statutory range permitted for a

particular degree of offense. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. R.C.

§2929.11(B) provides that a felony sentence must be reasonably calculated to achieve

the two purposes set forth in R.C.§ 2929.11(A): commensurate with and not demeaning

to the seriousness of the crime and its impact on the victim and consistent with

sentences imposed on similarly-situated offenders. The court must also consider the

seriousness and recidivism factors under R.C. §2929.12.

       {¶12} However, R.C. §2929.11 and §2929.12 do not mandate judicial fact-

finding. Rather, “[t]he court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42.

Thus, “in exercising its discretion, a court is merely required to ‘consider’ the purposes

of sentencing in R.C. §2929.11 and the statutory * * * factors set forth in R.C.§2929.12.”
Muskingum County, Case No. CT2011-0063                                                 4

State v. Sutton, 8th Dist. No. 97132, 2012–Ohio–1054, ¶ 11, citing State v. Lloyd, 11th

Dist. No.2006–L–185, 2007–Ohio–3013, ¶ 44.

       {¶13}    Subsequent to Foster, in a plurality opinion, the Ohio Supreme Court

established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this

first step is satisfied, the second step requires the trial court's decision be reviewed

under an abuse-of-discretion standard. Id.

       {¶14} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, the Ohio Supreme

Court recently held, at paragraph two of the syllabus, that the United States Supreme

Court's decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, did not

revive Ohio's former consecutive-sentencing statutory provisions, R.C. §2929.14(E)(4)

and §2929.41(A), which were held unconstitutional in Foster and imposed no fact-

finding obligation on Ohio's trial courts. Id. at ¶ 39.

       {¶15} The General Assembly recently amended R.C. §2929.14(C)(4) and

enacted new language requiring fact-finding for consecutive sentences. Am.Sub.H.B.

No. 86. This legislation became effective September 30, 2011.

       {¶16} Subsequent to H.B. 86, R.C. 2929.14(A)(3)(a) provides for a 60 month

sentence for F-3 offenders who have 2 or more prior burglary convictions. Without

priors, the F-3 maximum sentence is 36 months under R.C. 929.14(A)(3)(b).
Muskingum County, Case No. CT2011-0063                                                    5


         {¶17} Appellant herein argues that because he was sentenced subsequent to

the effective date of H.B. 86, the State was required to specify Appellant’s prior burglary

convictions in the indictment to enhance the offense.

         {¶18} Upon review, we find no error in the indictment as such was filed June 1,

2011, prior to the effective date of H.B. 86, and charged Appellant with a violation of

second degree felony. It was only pursuant to the negotiated plea agreement that

Appellant was offered a reduced charge to third degree felony.

         {¶19} Furthermore, a review of the transcript from the plea hearing reveals that

that Appellant, the State and the trial court were all aware of Appellant’s two prior

burglary convictions and knew that such priors would be a factor in sentencing. (Plea T.

at 4).

         {¶20} Based on the above facts and the record herein, we find no error in the

indictment in this matter and further find that the trial court did not abuse its discretion

in sentencing Appellant to 60 months in prison.

         {¶21}   Appellant’s sole Assignment of Error is overruled.

         {¶22} For the foregoing reasons, the judgment of the Court of Common Pleas

of Muskingum County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.

                                              ___________________________________

                                              ___________________________________

                                              ___________________________________

                                                                  JUDGES
JWW/d 0529
Muskingum County, Case No. CT2011-0063                                          6


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
ROBERT L. HILL                           :
                                         :
       Defendant-Appellant               :         Case No. CT2011-0063




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

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                            JUDGES
