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State v. DiCarlo

Court of Appeals of Ohio, Seventh District

December 20, 2006

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JACOB DiCARLO, DEFENDANT-APPELLANT.

Criminal Appeal from Common Pleas Court, Case No. 02CR359.

For Plaintiff-Appellee: Attorney Paul Gains Prosecuting Attorney Attorney Rhys Cartwright-Jones Assistant Prosecuting Attorney

For Defendant-Appellant: Attorney David Bodiker Ohio State Public Defender Attorney J. Banning Jasiunas Assistant Public Defender

Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Cheryl L. Waite

OPINION

VUKOVICH, Judge.

{¶1} Defendant-appellant Jacob DiCarlo appeals from the sentence entered by the Mahoning County Common Pleas Court for his conviction of aggravated robbery and felonious assault. The issue in this case is whether the trial court's imposition of maximum consecutive sentences was done in compliance with R.C. 2929.14(E). For the reasons expressed below, we find no merit with DiCarlo's argument and, as such, his sentence is affirmed.

STATEMENT OF CASE

{¶2} DiCarlo's first appeal as of right was decided by this court on September 23, 2004. State v. DiCarlo, 7th Dist. No. 02CA228, 2004-Ohio-5118. After disposition of the initial appeal, DiCarlo filed an application for reopening. This court reopened the appeal and limited the appeal to consecutive sentencing issues. 02/08/06 J.E.

{¶3} The facts in this case are identical to the facts in State v. DiCarlo, 7th Dist. No. 02CA228, 2004-Ohio-5118. DiCarlo was found guilty of aggravated robbery, a violation of R.C. 2911.01, and felonious assault, a violation of R.C. 2903.11. The trial court sentenced him to three years for felonious assault, a second-degree felony, and ten years for aggravated robbery, a first-degree felony. The trial court ordered the sentences to be served consecutively.

ASSIGNMENT OF ERROR

{¶4} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED MR. DICARLO TO A MAXIMUM, CONSECUTIVE PRISON TERMS WITHOUT MAKING THE NECESSARY FINDINGS AND WITHOUT PROVIDING SUPPORTING FACTS NECESSARY TO SUPPORT SUCH A SENTENCE DURING THE SENTENCING HEARING, AS REQUIRED BY R.C. 2929.14(E)(4) AND 2929.19(B)(2)(c) & (e). (SENTENCING Tr. 9; NOVEMBER 26, 2002 JUDGMENT ENTRY)."

{¶5} DiCarlo argues that the sentence imposed did not comply with R.C. 2929.14(E)(4) in that the trial court failed to make the appropriate findings enumerated in that section that are required for the imposition of consecutive sentences. DiCarlo acknowledges the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, however, he contends that "this Court should nonetheless remand and require the trial court to make the findings required by R.C. 2929.14(B) and (E)(4) because severance set forth in Foster would operate as an ex post facto law and because not applying those sections would deny Mr. DiCarlo due process."

{¶6} DiCarlo's assertion is correct that the trial court did not comply with R.C. 2929.14(E) when it sentenced him to consecutive sentences. That said, in Foster, the Ohio Supreme Court rendered this provision unconstitutional because it required judicial findings of fact not proven to a jury beyond a reasonable doubt or admitted by the defendant. Id. at paragraph three of the syllabus. The Court then went on to hold that that unconstitutional provision could be severed. Id. at paragraph four of the syllabus. Since the provision could be severed, "[t]rial 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 paragraph seven of the syllabus.

{¶7} However, DiCarlo does not want this court to apply Foster to him. According to him, application of Foster would violate the ex post facto clause. Our sister districts have reviewed an argument similar to the one raised here and have determined that the issue is not ...


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