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State v. Rush

Court of Appeals of Ohio, Fifth District

June 20, 2013

STATE OF OHIO Plaintiff-Appellee
v.
RANDALL D. RUSH Defendant-Appellant

Appeal from the Muskingum County Court of Common Pleas, Case No. CR2012-0038

For Defendant-Appellant: DAVID E. MORTIMER HOWARD ZWELLING MICHELI, BALDWIN, NORTHRUP LLP.

For Plaintiff-Appellee: D. MICHAEL HADDOX MUSKINGUM CO. PROSECUTOR.

JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

DELANEY, J.

{¶1} Appellant Randall D. Rush appeals from the judgment entry of conviction and sentence entered in the Muskingum County Court of Common Pleas on June 21, 2012. Appellee is the state of Ohio and did not file a brief.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant's criminal convictions is not necessary to our resolution of this appeal.

{¶3} Appellant was originally charged by indictment with six counts of gross sexual imposition pursuant to R.C. 2907.05(A)(1), all felonies of the fourth degree; one count of rape pursuant to R.C. 2907.02(A)(1)(c), a felony of the first degree; one count of sexual battery pursuant to R.C. 2907.03(A)(2), a felony of the third degree; and one count of child endangering pursuant to R.C. 2919.22(A), a misdemeanor of the first degree. On May 18, 2012, appellee entered a nolle prosequi as to counts two through nine and amended count one to attempted child endangering pursuant to R.C. 2923.02 and 2919.22(A), a felony of the fourth degree. Appellant entered a plea of no contest to the amended charge of attempted child endangering.

{¶4} The "Plea of No Contest" form signed by appellant, his counsel, and the prosecutor states in pertinent part: * * *.

The defendant acknowledges that the parties have engaged in plea negotiations and the defendant accepts and agrees to be bound by the following agreement, which is the product of such negotiations. Upon a plea of "no contest" to Count One as amended, the State agrees to make no recommendation and leave sentencing to the discretion of the Court. The State further agrees to Nolle Counts 2 through 9 at the time of sentencing. The defendant further acknowledges that he/she understands that the prosecutor's recommendation does not have to be followed by the Court.

{¶5} The trial court ordered a pre-sentence investigation.[1]

{¶6} Appellant appeared before the trial court for sentencing on June 18, 2012, and the trial court sentenced him to a prison term of 18 months. At the sentencing hearing, the trial court stated the following:

THE COURT: And the state has made no recommendation when it comes to sentencing. I'll also note for the record I have received the presentence investigation and I have reviewed it thoroughly. Included in the presentence investigation is a victim impact statement, as well as a specific letter from the victim concerning this matter, as well as letters from many others supporting the victim, as well as letters [defense counsel] has filed supporting you, Mr. Rush. All of that is included in the Court's file.
I understand, Mr. Rush, that you have taken no responsibility for any sexual misconduct by this plea, but I think it's pretty clear that there's alleged ...

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