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State v. Carosella

December 2, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
FRANK CAROSELLA, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 07CR313.

The opinion of the court was delivered by: Vukovich, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro.

{¶1} Defendant-appellant Frank Carosella appeals from his sentence entered in the Mahoning County Common Pleas Court. He contends his rights under Crim.R. 25(B) were violated where a different judge sentenced him than the one who accepted his guilty plea. For the following reasons, the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

¶ {2} Appellant was indicted for possession of crack cocaine, a fifth degree felony due to the weight being under a gram. As can be seen by his July 2007 motion to suppress, his case was apparently assigned to Judge Cronin's court. On August 23, 2007, he entered a plea agreement whereby the state agreed to amend the charge to first degree misdemeanor attempted possession of cocaine and to stand silent at sentencing in return for appellant's guilty plea.

{¶3} The plea hearing proceeded that day in front of Judge Bannon, a visiting judge temporarily appointed by the Supreme Court due to Judge Cronin's retirement. Rather than proceed to sentencing that day, Judge Bannon ordered a presentence investigation. On September 12, 2007, Judge Bannon granted appellant's motion for a continuance of his October 24, 2007 sentencing hearing.

¶ {4} At the reset November 6, 2007 sentencing, appellant appeared before Judge Franken, who had been newly appointed by the governor to fill Judge Cronin's vacated seat. Appellant did not object to Judge Franken's presence or inquire as to Judge Bannon's absence. Judge Franken sentenced appellant to the maximum sentence of six months in jail and imposed the maximum fine of $1,000.

{¶5} Appellant filed timely notice of appeal two days later, complaining in said notice of appeal about Judge Bannon's absence and claiming that Judge Bannon currently makes himself available to complete other cases in which he presided.

ASSIGNMENT OF ERROR ¶ {6} Appellant's sole assignment of error provides:

{¶7} "THE JUDGE BEFORE WHOM THE APPELLANT HAD BEEN FOUND GUILTY WAS AVAILABLE AND ABLE TO PERFORM THE DUTIES OF THE COURT, THEREFORE PURSUANT TO CRIMINAL RULE 25, HE SHOULD HAVE SENTENCED APPELLANT."

¶ {8} Appellant claims a violation of Crim.R. 25(B) because Judge Bannon was available to sentence him on November 6, 2007. In support of his factual claim regarding Judge Bannon's availability, he asks this court to take judicial notice of the docket records in a local case where Judge Bannon sentenced a defendant on November 14, 2007 and another local case where Judge Bannon ruled on a motion on November 21, 2007 and presided over a jury trial from November 27 through November 30 and from December 3 through December 4, 2007. Appellant also urges that he objected at the first opportunity, two days after sentencing in the notice of appeal, claiming that Judge Franken's unexpected appearance at sentencing provided insufficient time to lodge an earlier objection to Judge Bannon's absence.

{ΒΆ9} The state contends that appellant failed to timely object and thus consented to Judge Franken acting as the sentencing judge. The state alternatively insists that docket records from other common pleas court cases cannot be considered as they represent evidence de hors the record. The state points out that Judge Franken assumed Judge Cronin's docket upon her retirement and retirement constitutes an inability to preside under Crim.R. 25(A). See State v. Green (1997), 122 Ohio App.3d 566, 571. However, as to this final argument, it is not Judge Cronin's ability to further preside ...


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