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State v. Bumgardner

Court of Appeals of Ohio, Fifth District, Morgan

January 6, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MARK C. BUMGARDNER Defendant-Appellant

         Criminal appeal from the Morgan County Court of Common Pleas, Case No.14CR0023

         JUDGMENT: Affirmed

          For Plaintiff-Appellee MARK HOWDYSHELL

          For Defendant-Appellant PETER CULTICE

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

          OPINION

          GWIN, J.

         {¶1} Appellant Mark Bumgardner appeals the October 13, 2015 judgment entry of the Morgan County Court of Common Pleas. Appellee is the State of Ohio.

         Facts & Procedural History

         {¶2} An indictment was filed against appellant on June 18, 2014 stating he violated R.C. 2923.13(A)(3) by having weapons while under disability. A bill of particulars filed on January 14, 2015 stated appellant had in his possession, at his residence, twenty-eight live rounds of .17 caliber ammunition, four casings of fired ammunition, and a Marlin model 917 firearm. The bill of particulars further alleged appellant was previously convicted of possession of marijuana in violation of R.C. 2925.11(1)(C)(d).

         {¶3} Appellant signed a jury waiver on February 26, 2015. Appellant signed a plea of guilty on April 14, 2015 stating he entered the plea with the understanding of the nature of the charge and the consequences, including the penalty of the plea. Further, that he had been fully advised by the court of all of his constitutional rights. In the plea form, appellant acknowledged he voluntarily waived all of his constitutional rights.

         {¶4} The trial court held a plea hearing on April 14, 2015. During the plea hearing, the trial court informed appellant of the maximum prison term and fines for the violation. The trial court further questioned appellant, "And do you understand that after you are released from incarceration, if that is what happens, that you would be placed on post-release control or probation under standard rules for a definite period of three years? You understand that?" Appellant responded, "Yes, sir."

         {¶5} The trial court further asked appellant if he was currently on probation or community control. Appellant stated he was currently on community control. The trial court asked appellant if he understood "that if you plead guilty to this charge, that could be a violation of your probation, parole, or community control in the other case and could subject you to a penalty for that also? Do you understand that?" Appellant stated, "Yes, sir." The trial court then reviewed with appellant and confirmed he understood the rights he was waiving by entering a plea of guilty. The trial court also went over the plea form with appellant and confirmed he understood the nature of the charge and the consequences, including the maximum penalty, of the plea. Appellant stated he understood what the document was and wanted the court to accept the pleading. Further, that he understood the judge would decide his sentence and he could receive the maximum penalty as prescribed by law. The trial court accepted appellant's plea of guilty, found the plea was made freely, understandingly, and voluntarily, with full knowledge of the nature of the accusation and the consequences of the plea, and without undue influence, compulsion, duress, or promise of leniency.

         {¶6} In an April 20, 2015 change of plea entry issued by the trial court, the trial court stated it explained the possible penalties that might be imposed if appellant were found guilty and appellant said he understood and wanted the court to proceed with and accept his plea. The trial court found appellant "entered the guilty plea freely, knowingly, intelligently and voluntarily and fully understanding the nature of the charges and accusations against him and all the possible consequences and penalties resulting therefrom." The trial court ordered a pre-sentence investigation report and set the sentencing hearing for June 10, 2015. Appellant filed a motion to continue the sentencing hearing. The trial court granted the motion and continued the hearing until June 30, 2015. Appellant filed a second motion to continue and requested the trial court defer the sentencing hearing until a hearing was held on appellant's alleged probation violation in an earlier case.

         {¶7} The trial court held a hearing on October 8, 2015. First, appellant pled guilty to a probation violation in a previous case, No. 11-CR-0062, as a result of his plea in the instant case. When the trial court asked appellant whether there were sufficient facts to find that he was guilty of the probation violation, appellant stated "Yes, sir." In the previous case, appellant pled guilty to one count of having weapons while under disability and received a sentence of five years of community control. In ...


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