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State v. Bates

Court of Appeals of Ohio, Second District

December 29, 2006

STATE OF OHIO Plaintiff-Appellee
v.
ROBERT BATES Defendant-Appellant

Criminal Appeal from Common Pleas Court Trial Court Case No. 04-CR-333.

JAMES D. BENNETT, Atty. Reg. #0022729, Attorney for Plaintiff-Appellee

CHRISTOPHER C. BAZELEY, Atty. Reg. #0077473, Attorney for Defendant-Appellant

OPINION

FAIN, J.

{¶ 1} Defendant-appellant Robert Bates appeals from a sentence imposed upon him for three counts of Aggravated Robbery, to which he pled guilty as part of a plea bargain. Bates contends that the trial court had no authority to order the sentence imposed - three concurrent three-year sentences - to be served consecutively to a ten-year felony sentence previously imposed by another Ohio court. We conclude that R.C. 2929.14(E)(4) does provide authority for the sentence imposed. Accordingly, the judgment of the trial court is Affirmed.

I

{¶ 2} Bates was charged by indictment with three counts of Aggravated Robbery. He pled guilty as part of a plea bargain. That plea bargain included a joint recommendation, by both Bates and the State, that the sentence would be three, three-year terms of imprisonment, to be served concurrently with one another, but consecutively with a ten-year sentence previously imposed by the Montgomery County Common Pleas Court. The trial court accepted the plea, and imposed the agreed-upon sentence.

{¶ 3} From his sentence, Bates appeals.

II

{¶ 4} Bates's sole assignment of error is as follows:

{¶ 5} "THE TRIAL COURT'S IMPOSITION OF THREE-YEAR SENTENCES OF CONFINEMENT FOR THREE COUNTS OF AGGRAVATED ROBBERY WAS UNLAWFULLY IMPOSED CONSECUTIVELY TO A TEN-YEAR SENTENCE IMPOSED IN MONTGOMERY COUNTY."

{¶ 6} The State responds to Bates's assignment of error by asserting that Bates is prohibited from appealing from his sentence because, under R.C. 2953.08(D), a defendant may not appeal from a sentence if the State and the defendant jointly recommend a sentence as part of a plea negotiation, that sentence is imposed by the trial court, and "the sentence is authorized by law." We understand Bates's entire argument on appeal to be that the consecutive sentence imposed upon him, while jointly recommended, is not authorized by law, and we agree with him that if, in fact, his sentence is not authorized by law, then R.C. 2953.08(D) furnishes no impediment to his appeal.

{¶ 7} Bates cites State v. Thompson, 2002-Ohio-4717, Fairfield App. No. 01CA62, for the proposition that, except under certain circumstances expressly provided for in R.C. 2929.14(E) (1), (2), and (3), which have no application here, a trial court has no authority to order a felony sentence imposed to be served consecutively to a felony sentence previously imposed by another Ohio court. We agree with Bates that State v. Thompson, supra, so holds, and that the application of this holding to his case would require reversal of his sentence.

{¶ 8} In State v. Thompson, supra, the Ohio Fifth District Court of Appeals notes that its decision is in conflict with the opinion of the Ohio Tenth District Court of Appeals in State v. Gillman, 2001-Ohio-3968, Franklin App. No. 01 AP-662. We have read State v. Gillman, supra, and we conclude that its holding is, in fact, in conflict with the holding of State v. Thompson on the precise issue that Bates raises in this appeal. ...


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