[Cite as State v. Wise, 2017-Ohio-7502.]



                             STATE OF OHIO, BELMONT COUNTY
                                  IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLEE,                         )
                                                    )                CASE NO. 16 BE 0003
V.                                                  )
                                                    )                     OPINION
DANNY LEE WISE, JR.,                                )
                                                    )
        DEFENDANT-APPELLANT.                        )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Belmont County, Ohio
                                                    Case No. 15 CR 263

JUDGMENT:                                           Affirmed

APPEARANCES:
For Plaintiff-Appellee                              No brief filed

For Defendant-Appellant                             Attorney John Jurco
                                                    P.O. Box 783
                                                    St. Clairsville, Ohio 43950




JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                    Dated: September 5, 2017
[Cite as State v. Wise, 2017-Ohio-7502.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Danny Lee Wise, appeals from a Belmont County
Common Pleas Court judgment convicting him of inducing panic, following his guilty
plea, and the sentence that followed.
        {¶2}     On November 4, 2015, during school hours, an unidentified male called
the Bridgeport Elementary School and made a threat that there was a bomb in the
building. The school was evacuated. No bomb was found. Police later arrested
appellant for the crime.
        {¶3}     On December 3, 2015, a Belmont County Grand Jury indicted appellant
on one count of inducing panic, a second-degree felony in violation of R.C.
2917.31(A)(1)(C)(5). When the public place involved in inducing panic is a school,
the offense is a second-degree felony. Appellant initially entered a not guilty plea.
        {¶4}     Appellant later changed his plea to guilty to the crime charged.       In
exchange for his plea, plaintiff-appellee, the State of Ohio, agreed to recommend a
less-than-maximum sentence. The trial court conducted a change-of-plea colloquy
with appellant where it advised him of the rights he was giving up and advised him
that it was not bound to follow any sentencing recommendations. Appellant indicated
that he understood these things. The court accepted appellant’s guilty plea, ordered
a presentence investigation and a victim impact statement, and scheduled the matter
for sentencing.
        {¶5}     Subsequently, the trial court held a sentencing hearing.     The court
sentenced appellant to a maximum sentence of eight years in prison. Appellant filed
a timely notice of appeal on February 23, 2016.
        {¶6}     Appellant now raises a single assignment of error.
        {¶7}     Appellant’s assignment of error states:

                 THE      TRIAL       COURT   ERRED    IN   SENTENCING      THE
        APPELLANT TO THE MAXIMUM SENTENCE.

        {¶8}     Appellant argues the trial court should not have sentenced him to the
maximum sentence. He claims this sentence is contrary to law. First, he asserts his
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offense was non-violent, no physical harm was caused, no weapons were involved,
and there was no actual victim. Second, he points out that he pleaded guilty, thereby
saving the county the expense of a trial.      Third, appellant notes that both the
prosecutor and defense counsel recommended a less-than-maximum sentence.
Fourth, appellant points out that he expressed his remorse. Fifth, he contends that
the mitigating factors outweigh any aggravating factors. Sixth, he asserts he did not
commit the worst form of the offense. Finally, appellant asserts the trial court held
against him the fact that he was charged with six prior charges of domestic violence
and one charge of violation of a protective order, yet these charges were all
dismissed.
      {¶9}   When reviewing a felony sentence, an appellate court must uphold the
sentence unless the evidence clearly and convincingly does not support the trial
court's findings under the applicable sentencing statutes or the sentence is otherwise
contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1.
      {¶10} Appellant was convicted of a second-degree felony.          The possible
sentences for a second-degree felony are two, three, four, five, six, seven, or eight
years. R.C. 2929.14(A)(2). Thus, appellant’s eight-year sentence was within the
statutory range.
      {¶11} The trial court sentenced appellant to a maximum sentence for the
second-degree felony. But although the General Assembly has reenacted the judicial
fact-finding requirement for consecutive sentences, it has not revived the requirement
for maximum sentences. State v. Riley, 7th Dist. No. 13 MA 180, 2015-Ohio-94, ¶ 34.
Therefore, the trial court was not required to make any special findings before
sentencing appellant to a maximum sentence.
      {¶12} A court is not bound to accept the state's recommended sentence as
part of a negotiated plea agreement. State v. Dilling, 7th Dist. No. 12-CO-17, 2013-
Ohio-343, ¶ 30, citing State v. Crable, 7th Dist. No. 04-BE–17, 2004-Ohio-6812, ¶ 11.
Therefore, a trial court does not err by imposing a greater sentence than that which
                                                                               -3-


induced the defendant to plead guilty when the court cautions the defendant of the
applicable penalties, including the possibility of imposing a greater sentence than that
recommended by the state. Id.
      {¶13} In this case, at the change of plea hearing the court inquired of
appellant if he understood what the maximum penalty could be and appellant stated
that he did. (Plea Tr. 6). The court also asked appellant if he reviewed the plea
agreement with counsel and if he understood all of the agreement’s terms and
appellant stated that he did. (Plea Tr. 7). The plea agreement form states that the
maximum prison term is eight years. The plea agreement form also provides that
appellant and the state agree that a less-than-maximum prison term is appropriate.
Importantly, the form also provides: “I, however, understand that this is merely a
recommendation to the Court and is not binding upon the Court; the Judge may
therefore choose to accept, reject or modify this recommendation.” Moreover, at the
plea hearing the trial court asked appellant if he understood that any
recommendation from the state and defense counsel as to sentencing was influential
upon the court, but not binding upon the court. (Plea Tr. 8). Appellant stated that he
understood. (Plea Tr. 8).
      {¶14} Thus, the trial court did not err in imposing a greater sentence than was
recommended.
      {¶15} In sentencing a felony offender, the court must consider the overriding
principles and purposes set out in R.C. 2929.11, which are to protect the public from
future crime by the offender and others and to punish the offender. The trial court
shall also consider various seriousness and recidivism factors as set out in R.C.
2929.12(B)(C)(D)(E).
      {¶16} At the sentencing hearing, and again in the judgment entry of sentence,
the trial court stated that it reviewed R.C. 2929.11 and R.C. 2929.12, including the
principles and purposes of sentencing and the various statutory factors. (Sentencing
Tr. 7). The court also indicated both at the hearing and in the judgment entry that it
considered the presentence investigation report. (Sentencing Tr. 7).
                                                                                 -4-


       {¶17} At the sentencing hearing, the trial court gave a detailed explanation for
its maximum sentence. The court cited appellant’s extensive criminal history, which it
stated included reckless operation, six counts of domestic violence, three counts of
violation of a protection order, “boat docking requirements”, three counts of theft,
misuse of credit cards, attempted theft, failure to comply, felony theft, felony receiving
stolen property, receiving stolen property, drug paraphernalia, two counts of driving
under suspension, failure to reinstate, failure to control, assured clear distance, and
delivery of a Schedule III substance. (Sentencing Tr. 10). The court stated that
appellant has continued to commit crimes, including felonies, for over a decade.
(Sentencing Tr. 10).
       {¶18} The trial court also emphasized the harm appellant caused to the
community. It noted that because of appellant’s actions, responding to the school
were eight Belmont County Sheriff’s Deputies, the chief and an officer from the
Bridgeport Police Department, a K-9 bomb unit from Wheeling, West Virginia, the
Belmont County Emergency Management Agency, the Wolfhurst Fire Department,
two fire engines, an ambulance, and a utility vehicle. (Sentencing Tr. 11-12). The
court went on to describe how the parents of the school children and the community
were terrified at the time. (Sentencing Tr. 12).
       {¶19} In its judgment entry, the trial court found several aggravating factors to
apply. Appellant has a history of criminal convictions including delivery of a Schedule
III substance, failure to keep an assured clear distance, failure to control a vehicle,
driving under suspension, failure to reinstate, drug paraphernalia, theft, receiving
stolen property, failure to comply, attempted theft, “boat docking requirements”,
violation of protection order, and reckless operation. Appellant has not responded to
previously imposed sanctions, appellant has an established pattern of criminal
activity without good faith treatment or an effort to change his lifestyle.            The
population of Belmont County was endangered by appellant’s conduct.                    And
appellant has previously been incarcerated.
       {¶20} Although the court did mention at the sentencing hearing six domestic
                                                                               -5-


violence charges and one violation of a protection order charge that were dismissed,
the court did not mention them in its judgment entry of sentence.            Moreover,
appellant still had an extensive criminal record, including felonies, without those
charges. Thus, the fact that the court mentioned them at the sentencing hearing is
not significant.   The court was simply reciting what it had learned from the
presentence investigation report.
       {¶21} Given the above, there is no indication that the trial court’s findings are
unsupported or that appellant’s sentence is otherwise contrary to law.
       {¶22} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
       {¶23} For the reasons stated above, the trial court’s judgment is hereby
affirmed.


DeGenaro, J., concurs.

Robb, P.J., concurs.
