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State of Ohio v. Desmond E. Kaigler

October 14, 2011

STATE OF OHIO
APPELLEE
v.
DESMOND E. KAIGLER
APPELLANT



Trial Court No. CR0200902822

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

Cite as

State v. Kaigler,

DECISION AND JUDGMENT

{¶1} Desmond E. Kaigler, appellant, appeals his sentence in the Lucas County Court of Common Pleas on his conviction of attempted grand theft, a violation of R.C. 2923.02 and 2913.02(A)(1) and (B)(2) and a fifth degree felony. Appellant pled no contest to the offense. In a judgment filed on July 23, 2010, the court sentenced appellant to imprisonment for 12 months, the statutory maximum prison term for the offense. R.C. 2929.14(A)(5). The trial court also ordered the sentence to be served consecutive to a prison term appellant was serving at the time of sentencing for two felony convictions in the Marion County Court of Common Pleas.

{¶2} Kaigler asserts two assignments of error on appeal:

{¶3} "Assignments of Error

{¶4} "1) The trial court imposed a sentence contrary to law.

{¶5} "2) The trial court abused its discretion in sentencing appellant to maximum consecutive sentences."

{¶6} Under Assignment of Error No. 1, appellant argues that the United Supreme Court established the constitutionality of state requirements for judicial fact finding before imposition of consecutive sentences in the decision of Oregon v. Ice (2009), 555 U.S. 160. Appellant argues that the decision in Ice conflicts with the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, and that after Ice, Ohio statutory requirements for such fact finding, invalidated by Foster, should be enforced. R.C. 2929.14(E)(4) and 2929.41(A) required judicial fact finding before imposition of consecutive sentences prior to Foster.

{¶7} Appellant made this argument in an appellate brief filed before the Ohio Supreme Court addressed the issue in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320.

The Ohio Supreme Court considered and rejected appellant's argument in Hodge. At paragraphs two and three of the syllabus in the decision, the court held:

{¶8} "2. The United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio's former consecutive- sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

{ΒΆ9} "3. Trial court judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new ...


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