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State v. Bellard

Court of Appeals of Ohio, Seventh District

June 20, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
FABIAN BELLARD, DEFENDANT-APPELLANT.

Criminal Appeal from Common Pleas Court, Case No. 12 CR 104.

For Plaintiff-Appellee: Attorney Paul J. Gains Prosecuting Attorney Attorney Ralph M. Rivera Assistant Prosecuting Attorney.

For Defendant-Appellant: Attorney Andrew Zellers.

JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite.

OPINION

DeGENARO, P.J.

{¶1} Defendant-Appellant, Fabian Bellard appeals the May 14, 2012 judgment of the Mahoning County Court of Common Pleas convicting him of one count of aggravated robbery with a firearm specification, two counts of having weapons while under disability, and one count of carrying a concealed weapon, and sentencing him accordingly. On appeal, Bellard challenges only his sentence, and his assignment of error is meritorious in part. The trial court did not make the required findings when imposing consecutive sentences pursuant to R.C. 2929.14(C)(4) as amended by H.B. 86, effective September 30, 2011. Accordingly, the judgment of the trial court with regard to Appellant's sentence is reversed and this cause is remanded for resentencing.

Facts and Procedural History

{¶2} On February 23, 2012, Bellard was indicted by the Mahoning County Grand Jury on one count of aggravated robbery, R.C. 2911.01(A)(1)(C), a first-degree felony, with a firearm specification pursuant to R.C. 2941.145(A); two counts of having weapons while under disability, R.C. 2923.13(A)(2)(B), third-degree felonies; and one count of carrying concealed weapons, R.C. 2923.12(A)(2)(F), a fourth-degree felony. Bellard was accused of robbing a pizza delivery person at gunpoint. The first weapons under disability count stemmed from the robbery itself and the second when Bellard was arrested with a firearm in his possession. Bellard was arraigned, pled not guilty and counsel was appointed. He executed a speedy trial waiver.

{¶3} Bellard later entered into a Crim.R. 11 plea agreement with the State agreeing to plead guilty to all charges in the indictment; in exchange the State agreed to recommend a six-year aggregate prison sentence. At the plea hearing the trial court engaged in a colloquy with Bellard regarding the rights he would give up by pleading guilty. Notably, the trial court forewarned Bellard that it was not required to follow the State's sentencing recommendation. At the end of the hearing, the trial court accepted Bellard's plea as knowingly, voluntarily and intelligently made. Bellard waived his right to a pre-sentence investigation.

{¶4} At sentencing, the State kept its promise to recommend a six-year sentence. The State explained that the victim was notified about the sentencing hearing. Although the victim did not wish to appear and give a statement, he told the prosecutor he was satisfied with the recommended sentence. Counsel for both sides made arguments in favor of the jointly recommended sentence. The trial court asked Bellard if he had anything to say before the sentence was imposed, and Bellard gave a brief statement in mitigation.

{¶5} After considering, inter alia, Bellard's statement and the arguments made by counsel, Bellard's criminal history, the seriousness of the offenses, and the circumstances under which the offenses were committed, the trial court sentenced Bellard to a total of eight years in prison. The trial court sentenced Bellard to four years on the aggravated robbery charge; one year on each of the weapons under disability charges and on the carrying a concealed weapon charge, to be served concurrently with one another but consecutively to the aggravated robbery charge; and a mandatory three-year term for the firearm specification, which by law was imposed consecutively to the other counts. The trial court informed Bellard that upon completion of his sentence he would have a mandatory five year term of post-release control, and explained the consequences of violating post-release control. The trial court also gave Bellard 108 days of jail-time credit.

Felony Sentencing

{¶6} In his sole assignment of error, Bellard asserts:

{¶7} "The trial court's sentence of the Defendant-Appellant was inconsistent with the sentencing principles and guidelines set forth in O.R.C. 2929.11 through O.R.C. 2929.19 and thus contrary to law."

{¶8} The parties dispute the appropriate standard of review to apply when a felony sentence is challenged on appeal. Although Bellard is correct that the two-part test in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, was not approved by a majority of Ohio Supreme Court justices, this district has adopted the Kalish plurality test, see State v. Johnson, 7th Dist. No. 08MA72, 2008-Ohio-6206, and consistently applies it. See, e.g., State v. McGowan, 7th Dist. No. 09 JE 24, 2010-Ohio-1309, ¶66.

{¶9} Pursuant to the Kalish plurality, when reviewing a felony sentence, an appellate court first examines the sentence to ensure that the sentencing court clearly and convincingly complied with the applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4 (O'Connor, J., plurality opinion). A trial court's sentence would be contrary to law if, for example, it were outside the statutory range, in contravention to a statute, or decided pursuant to an unconstitutional statute. Id. at ¶15 (O'Connor, J., plurality opinion). An appellate court then reviews the trial court's sentencing decision for abuse of discretion. Kalish at ¶17, 19-20 (O'Connor, J., plurality opinion). An abuse of discretion means an error in judgment involving a decision that is unreasonable based upon the record; that the appellate court merely may have reached a different result is not enough. See Bergman v. Bergman, 2d Dist. No. 25378, 2013-Ohio-715, ¶9; Hall-Davis v. Honeywell, Inc., 2d Dist. Nos. 2008 CA 1, 2008 CA 2, 2009-Ohio-531, ¶35.

{¶10} Turning to the first prong of the Kalish test, Bellard was afforded his allocution rights pursuant to Crim.R. 32(A)(1). The trial court asked Bellard if he had anything to say before the sentence was imposed, and Bellard gave a brief statement in mitigation. The trial court properly notified Bellard that upon his release from prison he would be subject to a mandatory five-year period of post-release control and explained the ramifications of violating post-release control. R.C. 2967.28(B)(1). And the eight-year aggregate prison sentence Bellard received is well within the six-year to ...


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