[Cite as State v. McGraw, 2012-Ohio-174.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 96606




                                   STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 JOHN A. MCGRAW
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                              Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
                                Case No. CR-534815

        BEFORE:           Keough, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: January 19, 2012
ATTORNEY FOR APPELLANT

Regis E. McGann
600 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Kevin R. Filiatraut
      Kristin Karkutt
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, John A. McGraw (“McGraw”), appeals his

sentence and the trial court’s judgment denying his post-sentencing motion to

withdraw his guilty plea. For the reasons that follow, we affirm.
       {¶ 2} In March 2010, McGraw was indicted under a seven-count

indictment pertaining to a homicide and high speed chase that occurred

thereafter.      Count 1 charged McGraw with aggravated murder (prior

calculation and design), in violation of R.C. 2903.01(A); Count 2 charged

aggravated murder (felony murder, kidnapping), in violation of R.C.

2903.01(B); and Count 3 charged aggravated murder (felony murder,

aggravated burglary), in violation of R.C. 2903.01(B). All of the aggravated

murder counts contained three death penalty specifications.

       {¶ 3} Count 4 charged McGraw with kidnapping in violation of R.C.

2905.01(A)(3); Count 5 charged aggravated burglary in violation of R.C.

2911.11(A)(1); and Counts 6 and 7 charged failure to comply with order or

signal of police, in violation of R.C. 2921.331(B).

       {¶ 4} The case proceeded to a capital jury trial where, on the fourth day

of jury selection, McGraw entered into a plea agreement. Pursuant to the

plea agreement, the State dismissed all of the capital specifications attendant

to Count 1, aggravated murder. McGraw pled guilty to Count 1, aggravated

murder; Count 5, aggravated burglary; and Count 7, failure to comply with

order or signal of police. The State nolled all other counts. On February 18,

2011,1 the trial court sentenced McGraw to 30 years to life on the aggravated



       The statutes and applicable law cited herein are those that were in effect on March 1, 2010
       1


and February 18, 2011 when McGraw committed the offenses and was sentenced. They do not
murder charge, 10 years on the aggravated burglary charge, and 5 years on

the failure to comply count, all to be served consecutively, for a total

aggregate term of 45 years to life in prison.

       {¶ 5} McGraw, pro se, filed his notice of appeal on March 30, 2011.

Subsequently, on May 25, 2011, McGraw moved to withdraw his guilty plea,

which the trial court denied on June 6, 2011. No notice of appeal was taken

from the judgment entry denying McGraw’s post-conviction motion.

                                                  I.

       {¶ 6} In his first assignment of error, McGraw contends that the trial

court abused its discretion when it imposed consecutive sentences without

adequate justification and that the sentence is contrary to law because the

record does not reflect that the court considered the seriousness and

recidivism factors.

       {¶ 7} Appellate courts must apply a two-step approach when reviewing a

defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶ 4. “First, they must 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.




reflect any modifications that may have occurred as a result of House Bill 86, effective September 20,
2011. See R.C. 1.58.
If this first prong is satisfied, the trial court’s decision shall be reviewed

under an abuse-of-discretion standard.” Id.

      {¶ 8} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, the Ohio Supreme Court held that trial 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.” Id. at ¶ 100. Indeed,

Foster severed those sections of the Revised Code that required trial courts to

make findings of fact before sentencing an offender to maximum or

consecutive sentences. Id. at paragraphs one and three of the syllabus. The

Supreme Court recently upheld Foster in State v. Hodge, 128 Ohio St.3d 1,

2010-Ohio-6320, 941 N.E.2d 768.

      {¶ 9} McGraw   does not challenge that he received a term of

imprisonment, but challenges that consecutive sentences lacked justification.

 We find that McGraw’s sentence was within the statutory range for his

convictions; thus, in light of Kalish, no findings or reasons for imposing a

consecutive sentence were required.

      {¶ 10} In Kalish, the Supreme Court explained that “[a]lthough Foster

eliminated mandatory judicial fact-finding for upward departures from the

minimum, it left intact R.C. 2929.11 and 2929.12. The trial court must still
consider these statutes.” Id. at ¶ 13, citing State v. Mathis, 109 Ohio St.3d

54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

      {¶ 11} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.”   Kalish

at ¶ 17. “Instead, they serve as an overarching guide for trial judges to

consider in fashioning an appropriate sentence. In considering these statutes

in light of Foster, the trial court has full discretion to determine whether the

sentence satisfies the overriding purpose of Ohio’s sentencing structure.

Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its

discretion in considering whether its sentence complies with the purposes of

sentencing.” Id. “Therefore, assuming the trial court has complied with the

applicable rules and statutes, the exercise of its discretion in selecting a

sentence within the permissible statutory range is subject to review for abuse

of discretion pursuant to Foster.” Id.

      {¶ 12} In Kalish, the Supreme Court also made clear that even after

Foster, “where the trial court does not put on the record its consideration of

R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper

consideration to those statutes.” Id. at fn. 4, citing State v. Adams, 37 Ohio

St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus.

      {¶ 13} R.C. 2929.11(A) provides that when a trial court sentences an

offender for a felony conviction it must be guided by the “overriding purposes

of felony sentencing.” Those purposes are “to protect the public from future
crime by the offender and others and to punish the offender.”              R.C.

2929.11(B) states that a felony sentence “must be reasonably calculated to

achieve the purposes set forth under 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 for similar crimes committed

by similar offenders.”   And R.C. 2929.12 sets forth factors concerning the

seriousness of the offense and recidivism factors.

      {¶ 14} Although the court is no longer required to make findings on the

record to justify its sentence, the record in this case demonstrates that the

court considered the applicable factors and principles contained in R.C.

2929.11 and 2929.12, including recidivism factors and the need to punish the

offender.

      {¶ 15} At sentencing, the trial court received a sentencing memoranda

from the State, heard statements from the victim’s family, and considered

mitigation arguments by McGraw’s attorney and father. Additionally, the

trial court also considered McGraw’s allocution, which included statements of

remorse, acceptance of responsibility, and an apology to the victim’s family.

      {¶ 16} In sentencing McGraw, the trial judge stated that he considered

all the factors, finding that the crime was horrific, but recognizing and giving

credence to McGraw’s military service to this country. The record before this
court demonstrates that the trial court weighed all the factors; therefore,

McGraw’s sentence was not contrary to law or an abuse its discretion.

      {¶ 17} Accordingly, McGraw’s first assignment of error is overruled.

                                       II.

      {¶ 18} In his second assignment of error, McGraw contends that the trial

court abused its discretion and erred when it denied his motion to withdraw

his post-sentencing plea.

      {¶ 19} A party seeking to appeal must timely file a proper notice of

appeal to invest the court of appeals with jurisdiction to review a final

judgment or order of the trial court. Richards v. Indus. Comm., 163 Ohio St.

439, 127 N.E.2d 402 (1955), paragraph two of the syllabus.          App.R. 3(D)

states, in relevant part, that “[t]he notice of appeal shall specify the party or

parties taking the appeal; shall designate the judgment, order or part thereof

appealed from; and shall name the court to which the appeal is taken.” If a

party seeks to include additional judgments or orders subsequently decided

by the trial court in the same proceeding, App.R. 3(F) permits the party to

amend his or her appeal to add such judgments or orders. See State v. West,

2d Dist. No. 2000CA56, 2001 WL 43110 (Jan. 19, 2001).

      {¶ 20} An appellate court “is without jurisdiction to review a judgment or

order that is not designated in the appellant’s notice of appeal.” Slone v. Bd.

of Embalmers & Funeral Directors of Ohio, 123 Ohio App.3d 545, 548, 704
N.E.2d 633 (8th Dist. 1997); Schloss v. McGinness, 16 Ohio App.3d 96, 97-98,

474 N.E.2d 666 (8th Dist. 1984). This promotes the purpose of App.R. 3(D):

“to notify potential appellees of an appeal and advise them as to what orders

the appellant is appealing from.” Maunz v. Eisel, 6th Dist. No. L-02-1379,

2003-Ohio-5197, 2003 WL 22233859, ¶ 32, citing Parks v. Baltimore & Ohio

RR., 77 Ohio App.3d 426, 428, 602 N.E.2d 674 (8th Dist. 1991).

      {¶ 21} In this case, McGraw moved to withdraw his guilty plea after he

filed his notice of appeal to this court. The record indicates that McGraw did

not file a new notice of appeal or seek to amend his prior notice of appeal to

include this judgment. See App.R. 3(F). Accordingly, this court lacks the

authority to address McGraw’s second assignment of         error. See Regan v.

Paxton, 6th Dist. No. L-01-1205, 2002-Ohio-383, 2002 WL 126077 (concluding

that the appellate court did not have jurisdiction to hear the appeal, as the

appellant failed to file a new notice of appeal or amend his previously filed

appeal to include the subsequent judgment).

      {¶ 22} Accordingly, we lack jurisdiction to consider McGraw’s second

assignment of error.

                                                           Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
