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State v. Hughey

Court of Appeals of Ohio, Tenth District

September 24, 2013

State of Ohio, Plaintiff-Appellee,
v.
Kirk M. Hughey, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 12CR-09-4871)

Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.

Yeura R. Venters, Public Defender, and Allen V Adair, for appellant.

DECISION

SADLER, J.

(¶ 1} Defendant-appellant, Kirk M. Hughey, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. Because his sentence is not contrary to law, we affirm the judgment of the trial court.

I. FACTS AND PROCEDURAL HISTORY

(¶ 2} On September 25, 2012, appellant was indicted on four counts of receiving stolen property, in violation of R.C. 2913.51. Three of the counts were indicted as fifth-degree felonies, and one of the counts was indicted as a fourth-degree felony. On November 14, 2012, appellant entered a plea of guilty to one count of receiving stolen property as a fourth-degree felony and three first-degree misdemeanor counts of attempted receiving stolen property, in violation of R.C. 2913.02. According to the facts as read into the record during the plea hearing, the charges herein involved events that occurred on September 12 and 14, 2012, at which times appellant was alleged to have been in possession of a stolen vehicle, golf clubs, sunglasses, a GPS device, and other miscellaneous property. Also at the plea hearing, appellant indicated his heroin use was the underlying provocation for the offenses with which he was charged.

(¶ 3} After accepting the guilty pleas, the trial court stated, "I'm very concerned about letting him out, given the heroin and given the seriousness of the charges, and given at least at the outset of this thing, he gave the streets of Columbus as his address, even if he's got a place to live with grandma." (Nov. 14, 2012 Tr., 16.) After hearing from both appellant's counsel and the prosecutor, the trial court stated, "[g]iven the heroin stuff, I guess my concern is should we keep him on house arrest, or just put him on recognizance bond and have a reporting and drug drops? I sure don't want to see him relapse." (Nov. 14, 2012 Tr., 18.) After consideration, the court stated, "I'll change bond to a $2, 500 recognizance bond with reporting and drug screens. Order a PSI and a CBCF screen. Order a curfew of 11 p.m. to 7 a.m. seven days a week. And the address that [appellant] is required to live at on bond is 2087 Kennington * * * Avenue, Columbus, 43221." (Nov. 14, 2012 Tr., 20.)

(¶ 4} On November 30, 2012, appellant's bond was revoked pending sentencing due to appellant's admission of using heroin while on bond. According to the hearing, it was undisputed that appellant overdosed on heroin on or about November 20 and, as a result, was no longer permitted to reside at 2087 Kennington Avenue.

(¶ 5} A sentencing hearing was held on February 7, 2013, at which time appellant was sentenced to six months' incarceration on each conviction for attempted receiving stolen property to run concurrent with each other and concurrent with the 15-month sentence imposed on the conviction for receiving stolen property. In addition, appellant was awarded 132 days of jail-time credit and ordered to pay restitution in the total amount of $1, 300. A judgment entry reflecting such action was filed the following day.

II. ASSIGNMENTS OF ERROR

(¶ 6} This appeal followed and appellant brings the following assignments of error for our review:

[I.] Appellant's sentence was contrary to law as R.C. 2929.13(B) requires community control in the circumstances presented.
[II.] If timely objection on the record to the imposition of a prison sentence was essential, counsel's failure to do so means appellant ...

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