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State v. Lyttle

Court of Appeals of Ohio, Third District

June 24, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
RUSSELL G. LYTTLE, DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2012-CR-77

Gerald F. Siesel for Appellant

Edwin A. Pierce for Appellee

OPINION

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Russell G. Lyttle ("Lyttle"), appeals the judgment of the Auglaize County Court of Common Pleas, finding him guilty and sentencing him to thirty months in prison after Lyttle pled guilty to one count of possession of marijuana. On appeal, Lyttle contends that his sentence was contrary to law and an abuse of discretion because it greatly exceeded the jointly recommended sentence in the plea agreement and because the trial court did not properly consider and apply the felony sentencing guidelines. For the reasons set forth below, the judgment is affirmed.

{¶2} On May 30, 2012, the Auglaize County Grand Jury returned a single-count indictment charging Lyttle with possession of marijuana, in violation of R.C. 2925.11(A)(C)(3)(e). The possession of more than 5, 000 grams of marijuana but less than 20, 000 grams is a felony of the third degree.

{¶3} Lyttle, who was 32, lived in Detroit with his mother and eighty-year old grandfather. Lyttle's cousin, Tariq Haliburton ("Haliburton" or "co-defendant") lived in Washington State, but had come back to Detroit to visit. Haliburton asked Lyttle to come with him for the weekend to a party in Dayton where Haliburton had attended college at Central State. Haliburton did not have a car, so Lyttle borrowed his grandfather's car.

{¶4} At about 12:25 a.m. on May 6, 2012, Trooper Barhorst clocked the vehicle going 70 mph in a 65 mph zone. Upon following the vehicle, which Haliburton was driving, the trooper observed suspicious behavior, slowing down to 50 to 55 mph, as if the driver was attempting to get the trooper to pass him. The trooper effectuated a traffic stop and noticed an odor of marijuana coming from inside the vehicle. Haliburton admitted he had smoked some marijuana earlier that day. During a pat-down search of Haliburton, the trooper discovered a vacuum baggie that contained a small amount of marijuana (1.28 grams). Upon searching the vehicle, 17 bags of marijuana totaling 7042.22 grams, or approximately 15.53 pounds, were found in a black duffel bag inside the trunk of the car. The estimated street value of the marijuana was approximately $112, 000. Lyttle, who was a passenger in the vehicle, stated that he was sleeping at the time of the alleged traffic offense, so he did not know whether Haliburton had exceeded the speed limit. He claimed that he did not know that Haliburton had marijuana in the trunk of the car. Both Haliburton and Lyttle were arrested.

{¶5} Lyttle entered a plea of not guilty, and he was eventually released on bond after twenty days in jail. Lyttle's attorney also filed a motion to suppress.

{¶6} A hearing on the motion to suppress was scheduled for August 29, 2012. However, the parties advised the trial court that they had entered into plea negotiations and had reached a joint agreement. The terms of the written plea agreement stated that "The State and Defendant jointly recommend an 18 month sentence under [R.C.] 2953.08(D), and the 18 months [would] be either a period of incarceration or community control notification." In return, Lyttle would change his plea to guilty and would also withdraw the motion to suppress. The trial court advised Lyttle to "listen carefully to the negotiations that are going to be put before me and make sure that that's what you understand them to be, okay?"

{¶7} The prosecutor stated that the sole count in the indictment was a third degree felony, which carried a maximum prison term of thirty-six months and a maximum fine of $10, 000. The prosecutor then stated:

Prison is not mandatory but it is presumed necessary. The State would not object to a Presentence [Investigation] nor the continuation of bond. The other agreement is that the State and the Defendant jointly recommend an eighteen month sentence under 2953.08(D) and that the eighteen months be either a period of incarceration or a community control notification.

(Change of Plea Hrg. Tr. 3-4) The State then presented the written plea agreement to the trial court, which had been signed by the prosecutor, Lyttle, and Lyttle's attorney.

{¶8} The trial court proceeded with the Crim.R. 11 colloquy and informed Lyttle of the rights that he was foregoing by entering his plea and not going forward with a trial. Lyttle indicated that he understood. The trial court also informed Lyttle that the court could determine he was not amenable to community control sanctions and send him to prison, and that, in fact there was a presumption in favor of prison. As a third degree felony, the potential prison sentence for the offense could be 9 months, 12 months, 18 months, 24 months, 30 months, up to a maximum of 36 months, along with a license suspension, and possibly a fine. (Tr. 6-7).

{¶9} The trial court then repeated the terms of the plea agreement, stating that "Now these two [referring to the prosecutor and Lyttle's attorney] are entering into a joint recommendation. That means they join in recommending an 18-month sentence for you and if I follow that 18-month sentence, whether that's an 18-month notification or that's an 18-month penitentiary sentence, in either event, you're giving up your rights to appeal. Do you understand?" (Tr. 11) The trial court also reminded Lyttle that he would be "forever giving up those issues that have been raised in the motion to suppress." (Tr. 12)

{¶10} The following exchange also took place:

THE COURT: Do you understand that I am not obligated to follow the recommendation that these two make? Just because they join in a recommendation, the bottom line is at the end of the day I have to look myself in the mirror. At the end of the day, ...

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