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State v. Shough

Court of Appeals of Ohio, Fifth District

July 29, 2013

STATE OF OHIO, Plaintiff - Appellee
v.
BENNIE SHOUGH, Defendant-Appellant

Appeal from the Licking County Court of Common Pleas, Case No. 12 CR 00296

For Plaintiff-Appellee KENNETH W. OSWALT Licking County Prosecutor JUSTIN T. RADIC Assistant Prosecuting Attorney

For Defendant-Appellant WILLIAM T. CRAMER

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶1} Defendant-appellant Bennie Shough appeals his sentence from the Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 4, 2012, the Licking County Grand Jury indicted appellant on one count of aggravated possession of drugs (methamphetamine) in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree, one count of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(a), a felony of the fifth degree, and one count of possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree. At his arraignment on July 31, 2012, appellant entered a plea of not guilty to the charges.

{¶3} Subsequently, on December 13, 2012, appellant withdrew his former not guilty plea and entered a plea of no contest to the charges contained in the indictment. The trial court found appellant guilty of the charges. Appellee recommended that appellant's total sentence not exceed nine (9) months on all counts. Pursuant to a Judgment Entry filed on December 14, 2012, the trial court sentenced appellant to an aggregate prison sentence of eighteen (18) months. The trial court also ordered that appellant's sentence run consecutively with any sentence imposed in Case No. 12 CR 00469. The trial court, in its Judgment Entry, also sentenced appellant to a period of three (3) years of post-release control and denied appellant's post-sentence oral motion to withdraw his plea. Appellant had made such motion on the basis that he did not receive the recommended sentence.

{¶4} Appellant now raises the following assignments of error on appeal:

{¶5} THE TRIAL COURT RENDERED APPELLANT'S NO CONTEST PLEA INVOLUNTARY AND VIOLATED APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS BY IMPOSING A SENTENCE THAT EXCEEDED THE AGREED-UPON SENTENCING RECOMMENDATION.

{¶6} THE TRIAL COURT VIOLATED APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS, CRIM.R. 11, AND R.C. 2943.032, WHEN IT FAILED TO EXPLAIN THE MAXIMUM PENALTY DURING THE PLEA COLLOQUY BY OMITTING THE PENALTY FOR VIOLATING POST-RELEASE CONTROL.

I

{¶7} Appellant, in his first assignment of error, argues that his no contest plea was not voluntary because the trial court imposed a sentence that exceeded the agreed upon sentencing recommendation. We disagree.

{¶8} Crim.R. 11(C)(2) reads as follows:

{¶9} "In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:

{ΒΆ10} "(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the ...


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