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State v. Floyd

Court of Appeals of Ohio, Seventh District, Belmont

June 12, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOSHUA LEVI FLOYD DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 15 CR 120

          For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. J. Kevin Flanagan Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Zachary T. Zilai

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro

          OPINION

          WAITE, J.

         {¶1} Appellant Joshua Levi Floyd appeals his September 22, 2015 Belmont County Common Pleas Court sentencing entry. Appellant argues that the trial court failed to consider the requisite R.C. 2929.13(B)(1)(b) factors when determining his sentence. For the reasons that follow, Appellant's argument is without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} Appellant was arrested after he led police on a multi-county, multi-state high-speed chase. On May 7, 2015, a Belmont County Grand Jury indicted Appellant on the following charges: one count of failure to comply with order or signal of a police officer, a felony of the third degree in violation of R.C. 2921.331(B), (C)(5); one count of receiving stolen property, a misdemeanor of the first degree in violation of R.C. 2913.51(A); and one count of driving while under the influence of alcohol or drugs, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(a). He was arraigned on May 14, 2015.

         {¶3} On August 26, 2015, Appellant pleaded guilty to an amended complaint. The state dismissed the receiving stolen property and OVI charges and added one count of theft of a credit card, a felony of the fifth degree. Appellant waived Grand Jury proceedings on the additional charge. The state also reduced the failure to comply charge to a felony of the fourth degree. On September 14, 2015, the trial court sentenced Appellant to eighteen months of incarceration for failure to comply and twelve months for theft of a credit card. The trial court ordered the sentences to run consecutively, for an aggregate total of thirty months, and gave Appellant credit for 178 days served. Appellant does not contest his conviction but timely appeals his sentence.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-APPELLANT TO A PRISON TERM WITHOUT MAKING ANY OF THE NECESSARY FINDINGS CONTAINED IN R.C. §2929.13(B)(1)(b).

         {¶4} Appellant argues that a trial court must consider the factors found in R.C. 2929.13(B)(1)(b) when sentencing a defendant who has been convicted of felonies of the fourth and fifth degree. Appellant claims that the trial court failed to make any findings, instead stating that "none of the nine factors of law may be present." (Appellant's Brf., p. 8.) Appellant asserts that there are two remedies for this alleged error available pursuant to R.C. 2953.08: this Court may remand the matter to allow the trial court to make the requisite findings or may simply modify his sentence.

         {¶5} R.C. 2929.13(B)(1)(b) states:

The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying ...

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