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State v. Ward

Court of Appeals of Ohio, Seventh District, Belmont

June 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BUCK ALLEN WARD DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 15 CR 135

          For Plaintiff-Appellee Attorney Daniel P. Fry Belmont County Prosecutor Attorney J. Flanagan Assistant Prosecutor

          For Defendant-Appellant Attorney Brent Clyburn

          JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          DeGENARO, J.

         {¶1} Defendant-Appellant, Buck Allen Ward appeals the judgment of the Belmont County Court of Common Pleas convicting him of one count of robbery and sentencing him accordingly. On appeal, Ward argues that he was denied his allocution rights during the sentencing hearing and that the trial court erred by imposing the maximum sentence. For the following reasons, Ward's assignments of error are meritless. Accordingly, the judgment of the trial court is affirmed.

         {¶2} Ward was indicted on one count of aggravated robbery, R.C. 2911.01(A)(3), a first-degree felony, in connection with the robbery of a bartender. Pursuant to a Crim.R. 11 plea agreement, Ward pled guilty to an amended charge of third-degree felony robbery, R.C. 2911.02(A)(3); the State agreed to leave sentencing to the discretion of the trial court and to stand silent on a request for judicial release. Following a plea hearing, the trial court accepted Ward's plea as knowingly, voluntarily and intelligently made and continued sentencing so that a presentence investigation could be prepared.

         {¶3} Following a sentencing hearing, the trial court imposed a maximum term of 36 months in prison, followed by up to three years of discretionary postrelease control of up to three years. The trial court also ordered Ward to pay monetary restitution and gave him jail-time credit for 48 days.

         Sentencing Issues

         {¶4} Both of Ward's assignments of error concern sentencing and therefore for clarity of analysis they will be discussed together. They assert, respectively:

The trial court erred in sentencing the defendant-appellant, Buck Allen Ward, to a maximum prison term of thirty-six (36) months following his conviction for the singular offense of "robbery, " a felony of the third degree.
Furthermore, the trial court committed error denying the defendant-appellant, Buck Allen Ward, an unfettered opportunity to address the court prior to the imposition of sentence.

          {¶5} Appellate courts review a felony sentence to determine whether the trial court's findings-or where findings are not required, the sentence itself-are clearly and convincingly unsupported by the record, or whether the sentence is otherwise contrary to law. R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; ¶ 23.

         {¶6} Marcum does not permit appellate courts to independently weigh the sentencing factors in R.C. 2929.12 on review. State v. Davis, 2016-Ohio-7319, __N.E.3d__, ¶ 5 (7th Dist.), citing State v. Ongert, 8th Dist. No. 103208, 2016-Ohio-1543, ¶ 14. In other words, reversal or modification of a sentence in the wake of Marcum, "applies to situations in which not one sentencing factor supports a stated prison term or the trial court erroneously relied on factors that did not exist." Davis at ¶ 5, quoting Ongert at ¶ 13.

         {¶7} Here, the trial court was not required to make any findings under the statutes referenced by R.C. 2953.08(G). Thus, Ward's sentence may be overturned only if that sentence was contrary to law or this court clearly and convincingly ...


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