[Cite as State v. Lyttle, 2013-Ohio-2608.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 2-12-22

        v.

RUSSELL G. LYTTLE,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                            Trial Court No. 2012-CR-77

                                       Judgment Affirmed

                               Date of Decision: June 24, 2013




APPEARANCES:

        Gerald F. Siesel for Appellant

        Edwin A. Pierce for Appellee
Case No. 2-12-22


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Russell G. Lyttle (“Lyttle”), appeals the

judgment of the Auglaize County Court of Common Pleas, finding him guilty and

sentencing him to thirty months in prison after Lyttle pled guilty to one count of

possession of marijuana.     On appeal, Lyttle contends that his sentence was

contrary to law and an abuse of discretion because it greatly exceeded the jointly

recommended sentence in the plea agreement and because the trial court did not

properly consider and apply the felony sentencing guidelines. For the reasons set

forth below, the judgment is affirmed.

       {¶2} On May 30, 2012, the Auglaize County Grand Jury returned a single-

count indictment charging Lyttle with possession of marijuana, in violation of

R.C. 2925.11(A)(C)(3)(e).       The possession of more than 5,000 grams of

marijuana but less than 20,000 grams is a felony of the third degree.

       {¶3} Lyttle, who was 32, lived in Detroit with his mother and eighty-year

old grandfather.     Lyttle’s cousin, Tariq Haliburton (“Haliburton” or “co-

defendant”) lived in Washington State, but had come back to Detroit to visit.

Haliburton asked Lyttle to come with him for the weekend to a party in Dayton

where Haliburton had attended college at Central State. Haliburton did not have a

car, so Lyttle borrowed his grandfather’s car.




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       {¶4} At about 12:25 a.m. on May 6, 2012, Trooper Barhorst clocked the

vehicle going 70 mph in a 65 mph zone. Upon following the vehicle, which

Haliburton was driving, the trooper observed suspicious behavior, slowing down

to 50 to 55 mph, as if the driver was attempting to get the trooper to pass him. The

trooper effectuated a traffic stop and noticed an odor of marijuana coming from

inside the vehicle. Haliburton admitted he had smoked some marijuana earlier

that day.   During a pat-down search of Haliburton, the trooper discovered a

vacuum baggie that contained a small amount of marijuana (1.28 grams). Upon

searching the vehicle, 17 bags of marijuana totaling 7042.22 grams, or

approximately 15.53 pounds, were found in a black duffel bag inside the trunk of

the car. The estimated street value of the marijuana was approximately $112,000.

Lyttle, who was a passenger in the vehicle, stated that he was sleeping at the time

of the alleged traffic offense, so he did not know whether Haliburton had exceeded

the speed limit. He claimed that he did not know that Haliburton had marijuana in

the trunk of the car. Both Haliburton and Lyttle were arrested.

       {¶5} Lyttle entered a plea of not guilty, and he was eventually released on

bond after twenty days in jail. Lyttle’s attorney also filed a motion to suppress.

       {¶6} A hearing on the motion to suppress was scheduled for August 29,

2012. However, the parties advised the trial court that they had entered into plea

negotiations and had reached a joint agreement. The terms of the written plea


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agreement stated that “The State and Defendant jointly recommend an 18 month

sentence under [R.C.] 2953.08(D), and the 18 months [would] be either a period of

incarceration or community control notification.” In return, Lyttle would change

his plea to guilty and would also withdraw the motion to suppress. The trial court

advised Lyttle to “listen carefully to the negotiations that are going to be put

before me and make sure that that’s what you understand them to be, okay?”

       {¶7} The prosecutor stated that the sole count in the indictment was a third

degree felony, which carried a maximum prison term of thirty-six months and a

maximum fine of $10,000. The prosecutor then stated:

       Prison is not mandatory but it is presumed necessary. The State
       would not object to a Presentence [Investigation] nor the
       continuation of bond. The other agreement is that the State and the
       Defendant jointly recommend an eighteen month sentence under
       2953.08(D) and that the eighteen months be either a period of
       incarceration or a community control notification.

(Change of Plea Hrg. Tr. 3-4) The State then presented the written plea agreement

to the trial court, which had been signed by the prosecutor, Lyttle, and Lyttle’s

attorney.

       {¶8} The trial court proceeded with the Crim.R. 11 colloquy and informed

Lyttle of the rights that he was foregoing by entering his plea and not going

forward with a trial. Lyttle indicated that he understood. The trial court also

informed Lyttle that the court could determine he was not amenable to community

control sanctions and send him to prison, and that, in fact there was a presumption

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in favor of prison. As a third degree felony, the potential prison sentence for the

offense could be 9 months, 12 months, 18 months, 24 months, 30 months, up to a

maximum of 36 months, along with a license suspension, and possibly a fine. (Tr.

6-7).

        {¶9} The trial court then repeated the terms of the plea agreement, stating

that “Now these two [referring to the prosecutor and Lyttle’s attorney] are entering

into a joint recommendation. That means they join in recommending an 18-month

sentence for you and if I follow that 18-month sentence, whether that’s an 18-

month notification or that’s an 18-month penitentiary sentence, in either event,

you’re giving up your rights to appeal. Do you understand?” (Tr. 11) The trial

court also reminded Lyttle that he would be “forever giving up those issues that

have been raised in the motion to suppress.” (Tr. 12)

        {¶10} The following exchange also took place:

        THE COURT: Do you understand that I am not obligated to follow
        the recommendation that these two make? Just because they join in
        a recommendation, the bottom line is at the end of the day I have to
        look myself in the mirror. At the end of the day, I’m the guy who
        has to call the sentencing. Do you understand?

        LYTTLE:      Yes, Your Honor.

        THE COURT: So I listen to them and I consider their views and
        what they have to say. I also consider several pages worth of Ohio
        Revised Code, all the information that I can get and in the end, I
        have to look at myself in the mirror, so I’m the guy who calls it. So
        as I sit here right now, I don’t know what sentence that I’m going to


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       give you, so nobody else can promise you anything on my behalf.
       Do you understand?

       LYTTLE:       Yes, Your Honor.

(Tr. 13)

       {¶11} The trial court then gave Lyttle an opportunity to ask questions,

ascertained that he was satisfied with his counsel’s representation, and then

proceeded to accept Lyttle’s guilty plea. The State reviewed the facts of the case,

as outlined above.

       {¶12} The trial court then addressed Lyttle again.

       THE COURT:          Mr. Lyttle, whose pot was this?

       LYTTLE:             My cousin’s.

       THE COURT:          Who’s that?

       LYTTLE:             Mr. Halliburton

       THE COURT:          The driver?

       LYTTLE:             Yes, Your Honor.

       THE COURT:          Whose car was it?

       LYTTLE:             My grandfather’s.

       THE COURT:          Who borrowed it from grandpa?

       LYTTLE:             I did.

(Tr. 16)



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       {¶13} The trial court then ordered a presentence investigation (“PSI”), and

continued sentencing for approximately six-to-eight weeks. Lyttle was

admonished to adhere to the conditions placed upon bond.

       {¶14} The sentencing hearing was held on November 7, 2012. The State

presented its position on sentencing, which was a recommendation for community

control.

       Your Honor, after reviewing the presentence investigation and the
       facts of this case, and the fact that Mr. Lyttle’s co-defendant, Mr.
       Haliburton, admitted to being the primary person involved in the
       ownership in trafficking in the marijuana, the State is not opposed or
       is recommending community control for Mr. Lyttle.

(Sent. Tr. 3)

       {¶15} There was then a discussion of the PSI report, wherein Lyttle

indicated that it contained several errors concerning his criminal history. Lyttle

represented that his uncle and his uncle’s son both had the exact same name as he

did, and several of the offenses listed on the PSI belonged to his uncle or cousin.

The trial court then went through the various offenses in the PSI, and Lyttle

admitted to the offenses that were his, and told the court which ones involved his

relatives.      Most of Lyttle’s admitted offenses involved traffic and DUI

convictions: 2001- driving while license suspended/revoked; 2002 - driving while

license suspended/revoked and DUI/open container; 2002 - failure to appear; 2004

- driving while license suspended/revoked; 2005 driving while license


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suspended/revoked; 2006 misdemeanor traffic offense; 2009 driving while license

suspended/revoked (report said 30 days in jail, but Lyttle stated it was only 3 days

in jail).

        {¶16} There were two relatively more serious offenses in 2004 for uttering

and publishing, and larceny by conversion when he forged/altered/published a

cashier’s check in the amount of $7,459 involving payment for back child support.

Lyttle represented that he has been paying restitution to the county for that and he

had paid back about half of it. He completed his probation for this in 2010.

        {¶17} There were also outstanding warrants for his arrest for two district

courts in Michigan, which Lyttle claimed were for traffic tickets, as well as for the

2002 failure to appear for DUI. He claimed he was trying to take care of these

matters, but was having difficulty because of scheduling issues with the courts and

the mix-up in records because of his family members with the same names. (Sent.

Tr. 15-16) He claimed that 85% of the tickets were not his and belonged to the

other family members. For example, he contends that he has a ticket on his record

from 1985, when he was seven years old. (Id.)

        {¶18} There was also a discussion on the record about the fact that Lyttle

had tested positive for THC (marijuana), although the conditions of his bond were

that he could not use any drug of abuse. (Sent. Tr. 12) Lyttle claimed that he had

a prescription and a card for medical marijuana, and so he did not believe it


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qualified as an illicit substance. Lyttle represented that he was prescribed 3 grams

per week, at a cost of $50 per week that he takes to alleviate pain from an injury.

(Id. at 13) However, the trial court never received confirmation from the doctor’s

office to verify that he had a prescription. (Id.)

       {¶19} After thoroughly questioning Lyttle concerning his employment,

education, and other background items, the trial court stated:

       The Court notes that [Lyttle] has had outstanding warrants for his
       arrest out of at least three jurisdictions at the time of the commission
       of the offense in this case. This Court accepts almost all of
       [Lyttle’s] comments concerning this relative and these other
       offenses, the felonies and so forth. I accept that. But, there are
       outstanding warrants and it’s [not] just pending court dates. They’re
       outstanding warrants for [Lyttle’s] arrest. So, I do not accept the
       statements concerning those matters.

       The Court noting that this is a felony of the third degree, after
       considering the information provided to the Court by the parties and
       the PreSentence Investigation, the Court sentences [Lyttle] to thirty
       months at the Department of Rehabilitation and Corrections plus
       post release control which the court imposes as a mandatory term of
       post release control for three years. * * *

(Sent. Tr. 16-17).    The trial court did not impose a fine, noting that Lyttle was

indigent, and he was given credit for twenty days already served against his thirty-

month sentence.

       {¶20} It is from this judgment that Lyttle now appeals, raising the

following assignment of error for our review.




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                            First Assignment of Error

      The trial court’s sentencing of [Lyttle] to a sentence totaling 30
      months, being in excess of the jointly recommended 18-month
      sentence (R.C. 2953.08(D)) was contrary to law and further
      constituted an abuse of discretion in failing to properly consider
      and apply the felony sentencing guidelines set forth in Ohio
      Revised Code, Section 2929.11 and 2929.12

      {¶21} Lyttle raises several issues in his assignment of error, alleging that

the thirty-month sentence imposed by the trial court was excessive, contrary to

law, and an abuse of discretion. Lyttle asserts that the sentence was in excess of

the jointly recommended 18-month sentence. He also claims that the trial court

erred when it failed to consider the felony sentencing guidelines set forth in R.C.

2929.11 and R.C. 2929.12.

      {¶22} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109

Ohio St.3d 1, 2006–Ohio–856, “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.” State v. Mathis, 109 Ohio St .3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶

37. The enactment of H.B. 86, effective September 30, 2011, modified some

aspects of the sentencing statutes and now requires a trial court to make certain

findings before imposing consecutive sentences. R.C. 2929.14(C)(4); State v.

Rust, 3d Dist. No. 9-12-49, 2013-Ohio-2151, ¶ 14. However, Lyttle’s sentence

does not involve consecutive sentences and his issue on appeal was not affected by

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the modification to the sentencing guidelines.      The term abuse of discretion

implies that the court’s attitude is unreasonable, arbitrary or unconscionable. State

v. Adams, 62 Ohio St.2d 151, 157 (1980). It involves views or actions “that no

conscientious judge, acting intelligently, could honestly have taken .” (Internal

citations omitted.) State v. Hancock, 108 Ohio St.3d 57, 2006–Ohio–160, ¶ 129–

130.

       {¶23} Courts, nevertheless, are still required to comply with the sentencing

laws unaffected by Foster, such as R.C. 2929.11 and 2929.12, which require

consideration of the purposes and principles of felony sentencing and the

seriousness and recidivism factors. Mathis at ¶ 38. However, a sentencing court

does not have to make any specific findings to demonstrate its consideration of

those general guidance statutes. Foster at ¶ 42.

       {¶24} Lyttle complains that the trial court did not follow joint-sentencing

recommendation set forth in the plea agreement. However, it is well-settled that a

trial court has no duty to accept the State's sentencing recommendations. State v.

Graham, 3d Dist. No. 14-04-28, 2005-Ohio-1431, ¶ 11, citing State v. Kitzler, 3d

Dist. No. 16-02-06, 2002-Ohio-5253. Trial courts may reject plea agreements and

are not bound by a jointly recommended sentence. State v. Underwood, 124 Ohio

St.3d 365, 2010–Ohio–1, ¶ 28. “A trial court does not err by imposing a sentence

greater than that forming the inducement for the defendant to plead guilty when


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the trial court forewarns the defendant of the applicable penalties, including the

possibility of imposing a greater sentence than that recommended by the

prosecutor.” State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005–Ohio–3674, ¶

6; State v. Spencer, 3d Dist. No. 6–12–15, 6–12–16, 2013-Ohio-137, ¶ 10.

      {¶25} In the case before us, the record demonstrates that the trial court very

clearly informed Lyttle that it was under no obligation to follow the

recommendation in the plea agreement. Lyttle indicated that he understood and

concurred.

      {¶26} Lyttle also contends that his sentence was contrary to law because “at

sentencing the court failed to indicate on the record that it had considered any of

the applicable factors.” (Appellant’s Br. p. 10) He claims that the trial court’s

statements during the hearing “are silent as to any reference that the Court

considered the seriousness and recidivism factors enumerated in R.C. 2929.12,” or

any of the other factors in R.C. 2929.12. (Id. at p. 11) Lyttle then presents his

analysis under these statutory sections and then claims that the trial court erred

because it apparently did not come to the same conclusion.

      {¶27} First, we find that the journal entry did clearly indicate that the trial

court considered the factors set forth in R.C. 2929.11 and R.C. 2929.12. See Nov.

7, 2012 J.E. (“The Court has considered the record, oral statements * * * and Pre-

Sentence Report prepared, as well as the principles and purposes of sentencing


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under Ohio Revised Code 2929.11, and has balanced the seriousness and

recidivism factors under Ohio Revised Code 2929.12.”) This is sufficient to

satisfy the requirements set forth in State v. Arnett, 88 Ohio St.3d 208, 2000-Ohio-

302. See, also, State v. Scanlon, 3d dist. No. 2-08-18, 2009-Ohio-2305, ¶ 4. And,

the sentence imposed was within the range allowed by R.C. 2929.14.

       {¶28} Although the trial court did not specify which particular sections of

the statutory factors it considered, the record indicates that the trial court did

consider these factors as indicated in the extensive dialogue between the trial court

and Lyttle, both at his change of plea hearing and at the sentencing hearing. See

excerpts above. The trial court explicitly discussed applying the guidelines in the

Ohio Revised Code to the facts and information it is able to discern from

discussions with defendants and the PSI. (“I listen to them and I consider their

views and what they have to say. I also consider several pages worth of Ohio

Revised Code, all the information that I can get and in the end, I have to look at

myself in the mirror, so I’m the guy who calls it.” Sent. Tr. 13)

       {¶29} The 30-month prison sentence handed down by the trial court was

within the range for a third degree felony, and the trial court clearly indicated that

it considered the applicable factors in the Revised Code when it sentenced Lyttle.

Accordingly, Lyttle’s assignment of error is overruled.




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       {¶30} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

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

/jlr




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