[Cite as State v. Stone, 2012-Ohio-1895.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 9-11-39

        v.

MARLIN EUGENE STONE, JR.,                              OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 10-CR-534

                                      Judgment Affirmed

                              Date of Decision: April 30, 2012




APPEARANCES:

        Kevin P. Collins for Appellant

        Brent W. Yager and Gregory A. Perry for Appellee
Case No. 9-11-39


PRESTON, J.

      {¶1} Defendant-appellant, Marlin E. Stone, Jr. (“Stone”), appeals the

Marion County Court of Common Pleas’ sentence of 30 years to life imprisonment

following his plea of guilty to aggravated murder, aggravated robbery, and

burglary. For the reasons that follow, we affirm.

      {¶2} On October 28, 2010, a Marion County Grand Jury jointly indicted

Stone and Vanessa Manley (“Manley”) on two counts of aggravated murder in

violation of R.C. 2903.01(A), felonies of the first degree (Counts One and Two);

two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies of

the first degree (Counts Three and Four); two counts of robbery in violation of

R.C. 2911.02(A)(2), felonies of the second degree (Counts Five and Six); two

counts of aggravated burglary in violation of R.C. 2911.11(A)(1), felonies of the

first degree (Counts Seven and Eight); one count of burglary in violation of R.C.

2911.11(A)(2), a felony of the first degree (Count Nine); four counts of tampering

with evidence in violation of R.C. 2921.12(A)(1), felonies of the third degree

(Counts Ten, Eleven, Twelve, and Thirteen); and one count of obstructing justice

in violation of R.C. 2921.32(A)(4), a felony of the third degree (Count Fourteen).

(Doc. No. 1). On December 13, 2010, Stone pleaded not guilty to all of the

charges. (Doc. No. 26).




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      {¶3} On April 21, 2011, Stone filed a motion to sever Manley’s trial from

his trial. (Doc. No. 99). The trial court granted Stone’s motion on June 2, 2011.

(Doc. No. 131).

      {¶4} On June 6, 2011, Stone entered guilty pleas to one count of aggravated

murder (Count Two), one count of aggravated robbery (Count Three), and one

count of burglary (Count Nine) pursuant to a plea agreement. (Doc. No. 134).

According to the plea agreement, the State would dismiss the remaining charges

and recommend a sentence of 25 years to life imprisonment on the aggravated

murder charge (Count Two), 6 years imprisonment on the aggravated robbery

charge (Count Three), and 2 years imprisonment on the burglary charge (Count

Nine). (Doc. No. 135).     The State would recommend that Stone serve the

aggravated murder and aggravated robbery sentences concurrently to each other

but consecutively to the burglary sentence for a total of 27 years to life

imprisonment. (Id.).

      {¶5} On August 9, 2011, the trial court held a sentencing hearing. (Aug. 9,

2011 Tr. at 163). The trial court sentenced Stone to 25 years to life imprisonment

for aggravated murder (Count Two), 5 years imprisonment for aggravated robbery

(Count Three), and 5 years imprisonment for burglary (Count Nine). (Aug. 15,

2011 JE, Doc. No. 141). The trial court ordered Stone to serve the 5 years

imprisonment for aggravated robbery concurrent to the 5 years imprisonment for


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burglary, but consecutive to the 25 years to life imprisonment for aggravated

murder, for a total sentence of 30 years to life imprisonment. (Id.).

       {¶6} On September 12, 2011, Stone filed a notice of appeal. (Doc. No.

145). Stone raised two assignments of error for our review. Since the two

assignments of error rely on the same issues of fact and law, we will address them

together.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       DEFENDANT-APPELLANT BY IMPOSING CONSECUTIVE
       SENTENCES WITHOUT MAKING ANY FINDINGS
       REQUIRED BY R.C. 2929.14(E)(4)

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       DEFENDANT-APPELLANT BY IMPOSING MORE THAN
       THE  MINIMUM     PRISON SENTENCE  WITHOUT
       ADEQUATE JUSTIFICATION

       {¶7} In his assignments of error, Stone argues State v. Foster, where the

Supreme Court of Ohio severed the portion of the sentencing statute requiring

judicial fact-finding, should not apply in this case. 109 Ohio St.3d 1, 2006-Ohio-

856. Stone contends that he waived his Sixth Amendment rights by pleading

guilty to the charges, consequently Foster is inapplicable and the trial court was

required to make judicial findings of fact. Alternatively, Stone argues his sentence




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is contrary to law because the trial court imposed a sentence that was greater than

the minimum possible sentence without justification.

       {¶8} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,

¶ 23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G).             Clear and

convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko,

139 Ohio App.3d 827, 835 (12th Dist. 2000). An appellate court should not,

however, substitute its judgment for that of the trial court because the trial court is

‘“clearly in the better position to judge the defendant’s dangerousness and to

ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No.




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2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400

(2001).1

        {¶9} As a preliminary matter, we note that the General Assembly recently

amended the sentencing statute (former R.C. 2929.14(E)(4)) and implemented new

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

No. 86; State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28. The new

statute went into effect on September 30, 2011. Am.Sub.H.B. No. 86. Stone was

sentenced on August 15, 2011; consequently, the new legislation does not apply in

this case.

        {¶10} Prior to this new legislation, the Supreme Court of Ohio determined

that the sentencing statute requiring judicial fact-finding prior to imposing

consecutive sentences infringed on a defendant’s Sixth Amendment right to a trial

by jury. Foster, 2006-Ohio-856, at paragraph one of the syllabus. Following that

decision, the United States Supreme Court determined that a state could require

judicial findings of fact to impose consecutive rather than concurrent sentences

without infringing on a defendant’s Sixth Amendment rights. Oregon v. Ice, 555

U.S. 160, 129 S.Ct. 711 (2009). The Supreme Court of Ohio then determined in


1
  This Court notes that the Ohio Supreme Court has released a plurality opinion on the issue of whether a
clear and convincing standard or an abuse of discretion standard is proper for reviewing felony sentences
under R.C. 2953.08(G). State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Although this Court used our
precedential clear and convincing standard, affirmed and adopted by Kalish’s three dissenting Justices, we
would have concluded that Stone’s sentence was proper under the Kalish plurality’s two-step approach as
well.

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State v. Hodge that Foster remained valid after Ice and the judiciary was not

required to make findings of fact prior to imposing maximum or consecutive

sentences. 128 Ohio St.3d 1, 2010-Ohio-6320. However, the Supreme Court of

Ohio determined the trial court was still required to consider the sentencing

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. Foster at ¶

36-42.

         {¶11} Stone argues that since he waived his Sixth Amendment rights by

pleading guilty, Foster does not apply and the trial court erred by failing to make

findings of fact when it imposed a consecutive sentence. However, Stone does not

cite any case law in support of his argument. In fact, this Court has previously

applied Foster in cases where the defendant had entered a guilty plea. State v.

Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774; State v. Blackburn, 3d

Dist. No. 5-09-18, 2009-Ohio-5902.       Consequently, the trial court was not

required to make findings of fact when it imposed a consecutive sentence in the

present case. Furthermore, the trial court explicitly stated in its judgment entry

that it had considered “the record, oral statements, any victim impact statement

and pre-sentence report prepared, as well as the principles and purposes of

sentencing under R.C. 2929.11, and the appropriate factors under R.C. 2929.12.”

(Doc. No. 141). The trial court thus complied with the sentencing requirements

according to Foster.


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       {¶12} Stone also argues the trial court erred by imposing a sentence that

was greater than the minimum possible sentence and greater than the sentence the

State recommended. Stone contends that he was remorseful for his offense and

presented evidence that he is rehabilitated. As a result, Stone argues the trial court

erred by imposing a consecutive sentence. We disagree.

       {¶13} At his sentencing hearing, Stone presented evidence that he had been

abused as a child, had recently experienced some traumatic events at the time of

his offense including the death of the grandmother who had helped raise him and a

break up with his pregnant girlfriend, and was also addicted to drugs. (Aug. 9,

2011 Tr. at 168-224). Stone also presented witnesses who testified that Stone’s

actions in committing the offense were inconsistent with his character, that he was

remorseful for what he had done, and had been rehabilitated while his case was

pending. (Id.). However, we cannot find that the trial court erred in determining

that, despite this evidence, the severity of Stone’s offense merited more than the

minimum possible sentence.       Before Stone entered his guilty plea, the State

informed the trial court that:

       If this matter proceeded to trial the State would prove that on

       October 11th, 2010 in Marion County, Ohio, that the Defendant, in

       concert with his co-Defendant Vanessa Manley, they went over to

       the residence- the home of Lee McGary, Jr. located at 381 ½ Pearl


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      Street- I’m sorry, Park Street in Marion, Ohio. They go over there

      with the purpose to rob him; to steal from him. They did by stealth

      and force enter into his home, and when they entered into his home

      again the purpose was to commit this theft offense. The Defendant

      took with him a large kitchen knife, and with that large kitchen knife

      he repeatedly stabbed the victim, Mr. McGary, and fatally wounded

      him causing his death. They stole approximately a hundred to $150

      in U.S. currency, the wallet, cell phone, pocket knife, and DVD’s

      from the victim, and then fled the scene. (June 3, 2011 Tr. at 157-

      158).

The autopsy report revealed that Stone stabbed Lee McGary (“McGary”) nine

times, including two fatal wounds to his neck. (PSI at 3). Stone also provided

details about the incident in an interview with a probation officer on June 13,

2011. (Id. at 15- 17). Stone told the probation officer that the night before the

offense, Manley and he planned to go to McGary’s house, stab him, steal his

money, and purchase drugs. (Id. at 15).      Stone stated that Manley originally

wanted to murder a woman she knew was coming back to Marion from working in

Columbus and would have money. (Id.). Stone told Manley he would not murder

a woman, so Manley suggested McGary. (Id.). On the day of the offense, Manley

knocked on McGary’s door. (Id.).      When McGary opened the door, Manley


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pushed it open and Stone ran into the house. (Id.). Stone stabbed McGary while

Manley took McGary’s money, cell phone, and pocket knife. (Id. at 15). Stone

and Manley left and cleaned up at Stone’s mother’s house where they discovered

the wallet only contained $150. (Id.). Stone and Manley immediately used the

money to purchase crack cocaine. (Id.). In light of the seriousness of Stone’s

conduct, we cannot find that the trial court erred by imposing a sentence greater

than the statutorily required minimum of 20 years to life imprisonment.

       {¶14} Stone further argues that the trial court erred in imposing the

sentence because it is greater than the sentence the State recommended. This

argument is without merit. Trial courts may reject plea agreements and are not

bound by a recommended sentence. State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, ¶ 28. “The decision to accept or reject a plea bargain rests solely

within the discretion of the trial court.” State v. Jefferson, 5th Dist. No. 11 CAA

04 0033, 2012-Ohio-148, ¶ 50, citing State v. Asberry, 173 Ohio App.3d 443,

2007-Ohio-5436 (8th Dist.). Furthermore, the State informed Stone that the trial

court was not bound by its recommendation, and the plea agreement included the

potential sentences for each of the offenses. (Doc. No. 135). The plea agreement

explicitly stated:

       [t]here is no commitment as to sentencing by the Court; however,

       the State will recommend the Defendant receive an indefinite term


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       of incarceration of 25 years to life on Count 2, a definite term of six

       (6) years as to Count 3, and a definite term of two (2) years as to

       Count 9, Count 2 and Count 3 to be served concurrently with one

       another, but consecutive to Count 9, for a total term of 27 years to

       life. (Id.).

Stone thus knew at the time that he entered into the plea agreement that he could

potentially receive any sentence within the statutory range, including a sentence

greater than 27 years to life imprisonment. (Id.). We cannot find that the trial

court erred in imposing a consecutive sentence resulting in a total of 30 years to

life imprisonment for Stone’s aggravated murder, aggravated robbery, and

burglary offenses given the gravity of these offenses.

       {¶15} 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

SHAW, P.J., concurs.

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr




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