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State of Ohio v. Sean Quigley

October 27, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
SEAN QUIGLEY DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-536912, CR-536920, CR-539841, CR-542618, and CR-542638

The opinion of the court was delivered by: Eileen A. Gallagher, J.:

Cite as State v. Quigley,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: E. Gallagher, J., Kilbane, A.J., and Rocco, J.

{¶1} Sean Quigley appeals his sentence received in the Cuyahoga County Common Pleas Court. Quigley argues the trial court erred in imposing a term of incarceration that was not proportionate to the conduct he committed and that his trial counsel rendered ineffective assistance in allegedly conceding that Quigley would be sentenced to prison. Finding no merit to this appeal, we overrule Quigley's appeal.

{¶2} Cuyahoga County grand juries indicted Quigley in several criminal cases in 2010. As part of a plea agreement with the State, Quigley pleaded guilty to breaking and entering (CR-536912), attempted theft and theft (CR-536920) and burglary (CR-539841). While awaiting sentencing, Quigley committed additional crimes, resulting in two additional felony indictments in Cuyahoga County. In those cases, Quigley ultimately pleaded guilty to an amended charge of burglary and theft (CR-542618) and carrying a concealed weapon and having weapons under disability (CR-542638). On December 22, 2010, the trial court sentenced Quigley on all five cases for a total term of incarceration of ten years.*fn1

{¶3} Quigley appeals from this order of sentencing, raising the two assignments of error contained in the appendix to this opinion.

{¶4} In his first assignment of error, Quigley argues that his ten year prison sentence was not commensurate with the crimes he committed. We disagree.

{¶5} We review felony sentences using the framework announced in State v. Kalish, 120 Ohio St.2d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion, the Kalish court declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts "must apply a two-step approach." Kalish at ¶4.

{¶6} Appellate courts must first "examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law." Id. at 26, 896 N.E.2d 124. See, also, R.C. 2953.08(G). If this first prong is satisfied, then we review the trial court's decision under an abuse of discretion standard. Id. at ¶4 and ¶19, 896 N.E.2d 124.

{ΒΆ7} In the first step of our analysis, we review whether Quigley's sentence is contrary to law as required by R.C. 2953.08(G). As the Kalish court noted, post- Foster "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings and give reasons for imposing maximum, consecutive, or more than the minimum sentence." Id. at 11, 845 N.E.2d 470, quoting Foster at paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. The Kalish court held that although Foster eliminated mandatory judicial fact-finding, it ...


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