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State v. Tomlinson

Court of Appeals of Ohio, Fourth District

September 5, 2007

State of Ohio, Plaintiff-Appellee,
v.
John Tomlinson, Defendant-Appellant.

Lori J. Rankin, Chillicothe, Ohio, for appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Michael D. Hess, Assistant Pickaway County Prosecutor, Circleville, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

Roger L. Kline, Judge

{¶1} John Tomlinson appeals his non-minimum prison sentence from the Pickaway County Common Pleas Court. On appeal, Tomlinson contends that the trial court erred when it based his non-minimum sentence on facts neither found by a jury nor admitted by him. He further asserts that his sentence violates the Ex Post Facto and Due Process Clauses. Because Tomlinson and the State agreed on the prison sentence that the court imposed, we do not address this argument because R.C. 2953.08(D)(1) precludes appellate review. Accordingly, we overrule Tomlinson's sole assignment of error and affirm the judgment of the trial court.

I.

{¶2} A Pickaway County Grand Jury indicted Tomlinson for illegal conveyance of drugs onto the grounds of a detention facility in violation of R.C. 2921.36(A)(2), a felony of the third degree. As part of a plea agreement, Tomlinson agreed to plead guilty to an amended charge of attempt to convey, a felony of the fourth degree, and serve ten (10) months in prison. The court accepted his guilty plea to the amended offense and sentenced him to ten (10) months in prison.

{¶3} Tomlinson appeals, asserting one assignment of error: "THE TRIAL COURT ERRED BY SENTENCING MR. TOMLINSON TO A NON-MINIMUM PRISON TERM BASED ON FACTS NOT FOUND BY THE JURY OR ADMITTED BY MR. TOMLINSON, INCONTRAVENTION OF HIS RIGHTS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. BLAKELY V. WASHINGTON (2004), 542 U.S. 296, UNITED STATES V. BOOKER (2005), 543 U.S. 220."

II.

{¶4} In Tomlinson's sole assignment of error, he contends that the trial court erred when it imposed a non-minimum sentence. He asserts that the court based the sentence on facts neither found by a jury nor admitted by him. He further claims that his sentence violates the Ex Post Facto and Due Process Clauses.

{¶5} R.C. 2953.08(D)(1) states, "A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge."

{¶6} Here, Tomlinson and the State, as part of a plea agreement, agreed on the prison sentence that the court imposed. In fact, in his brief Tomlinson admits to the same. He states that he "agreed to accept the State's offer and plea (sic) guilty to an amended charge of Attempt to Convey, a fourth degree felony, and serve ten (10) months in prison for the offense." Therefore, we do not address Tomlinson's arguments because R.C. 2953.08(D)(1) precludes appellate review. See, e.g., State v. Billups, Franklin App. No. 06AP-853, 2007-Ohio-1298, ¶8.

{¶7} Accordingly, we overrule Tomlinson's sole assignment of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED.


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