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State v. Sturgell

Court of Appeals of Ohio, Ninth District

August 14, 2013

STATE OF OHIO Appellee
v.
KENNETH STURGELL, JR. Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR 11 04 1035 CR 11 03 0715

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

EVE V. BELFANCE, Presiding Judge.

(¶1} Kenneth Sturgell appeals from his convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.

I.

(¶2} Mr. Sturgell was indicted on one count of breaking and entering on March 29, 2011 (case CR-2011-03-0715). On April 29, 2011, Mr. Sturgell was indicted on one count of domestic violence (CR-2011-04-1035). Mr. Sturgell pleaded guilty to both charges on May 23, 2011, and the trial court sentenced him to three years of community control.

(¶3} Mr. Sturgell was indicted for burglary in an unrelated case and was also charged with violating the terms of his community control. On November 8, 2011, Mr. Sturgell pleaded guilty to community control violations in both CR-2011-03-0715 and CR-2011-04-1035. The trial court sentenced Mr. Sturgell to one year in prison for breaking and entering and three years in prison for domestic violence and ordered the terms to be served consecutively for an aggregate term of four years.[1] On November 10, 2011, the trial court held a hearing to correct the imposition of post-release control.

(¶4} The trial court's journal entry did not include a calculation of jail-time credit. However, the trial court issued an entry on December 14, 2011, that determined that Mr. Sturgell was entitled to 155 days of jail-time credit. Mr. Sturgell filed a motion for jail-time credit on December 22, 2011, requesting credit for an additional 32 days, which would bring his total credit to 187. The trial court never ruled on that motion.

(¶5} On August 13, 2011, Mr. Sturgell moved for the trial court to correct his sentence. He argued that the trial court had failed to make "the requisite findings to impose over the minimum sentence pursuant to the Ohio Revised Code 2929.11 and 2929.12." The trial court determined that Mr. Sturgell's motion was essentially a motion for reconsideration and denied it on August 20, 2011. Mr. Sturgell filed a notice of appeal from the August 20, 2011 entry on September 7, 2011. Counsel was appointed on September 21, 2011, and Mr. Sturgell's appointed counsel filed a second notice of appeal on October 3, 2011. Mr. Sturgell's counsel moved to file a delayed appeal for the May 23, 2011 sentencing entry, and this Court granted his request.

(¶6} Mr. Sturgell raises four assignments of error for our review.

II.

ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING STURGELL TO CONSECUTIVE SENTENCES IN ...

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