Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case
Michael T. Gmoser, Butler County Prosecuting Attorney, John
C. Heinkel, Government Services Center, for appellee
Michele Temmel, for appellant.
1} Appellant, Keith Randall Slamka, appeals from the
sentence he received in the Butler County Court of Common
Pleas for two counts of theft. For the reasons discussed
below, we affirm appellant's sentence.
2} In June 2018, appellant was indicted on two
counts of theft in violation of R.C. 2913.02(A)(1), (B)(2),
felonies of the fifth degree, one count of misuse of credit
cards in violation of R.C. 2913.21(B)(2), a felony of the
fifth degree, and one count of petty theft in violation of
R.C. 2913.02(A)(1), (B)(2), a misdemeanor of the first
degree. According to the bill of particulars, the charges
arose from appellant's conduct on April 19, 2018 and
April 20, 2018. Appellant was charged with stealing lawn
equipment, household items, and a credit card from M.C.
Appellant then used the credit card to withdraw over $2, 000
from ATM machines and to charge over $1, 500 of goods and
services without M.C.'s permission.
3} On September 13, 2018, following plea
negotiations, appellant pled guilty to two counts of theft in
exchange for the remaining counts being dismissed. At the
plea hearing, the state explained the differences between the
two theft counts, stating: "Count I is stealing the
credit card; Count II is withdrawing money from the ATM
machine with the stolen card." The trial court accepted
appellant's guilty plea, set the matter for sentencing on
October 18, 2018, and ordered that a presentence
investigative ("PSI") report be prepared. The court
also informed the parties that the issue of whether the two
theft offenses were allied offenses would be "talk[ed]
about * * * when we come back for the sentencing."
4} However, the issue of allied offenses was never
discussed at the sentencing hearing. Instead, the trial court
heard from defense counsel and appellant in mitigation and
allocution before imposing a sentence on appellant. Defense
counsel acknowledged appellant had served a prior prison term
and had "drug and alcohol issues," which included
the use of heroin and multiple OVI convictions, but counsel
nonetheless contended appellant was contrite and had taken
responsibility for his actions. Counsel stated appellant had
obtained his G.E.D. and had the ability to work, and counsel
requested that the court consider imposing community control
sanctions rather than a prison term. Appellant acknowledged
that he had "bit the hand off that's feeding
[him]" when he stole from M.C., as M.C. had been
providing him with a place to live and with money for doing
certain jobs for her. Appellant stated that he
"regret[ted] what [he] done" and wanted "a
chance to get out on community control, [see] how things
would work; get out and do the right thing."
5} After reviewing the PSI and victim impact
statement and considering the information presented at the
sentencing hearing, the trial court determined that community
control was not an appropriate sanction and that a prison
term was warranted. The trial court stated its intent to
impose nine-month prison terms on each theft offense, to be
served consecutively for an aggregate prison term of 18
months. The court made the necessary consecutive sentencing
findings, informed appellant that he may be subject to a
three-year optional period of postrelease control upon his
release from prison, and ordered appellant to pay court costs
and $1, 047.48 in restitution to M.C.
6} However, after the court first announced its
sentence, the following discussion occurred:
THE COURT: Defendant will be held in Butler County Jail until
he can be transported to prison. Good luck to you, Mr.
THE COURT: And he struts out of the courtroom.
[APPELLANT]: Make you feel good to give us (sic) that much.
THE COURT: Oh, hang on, I've got to rethink this a little
bit. Mr. Slamka wants to mouth off and make a scene here.
Mr. Slamka, your attorney is still present; what is it you
wanted to share with the Court?
[APPELLANT]: No, I just think it's crazy getting 18
months for this. (Indiscernible) people selling drugs get