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State v. Slamka

Court of Appeals of Ohio, Twelfth District, Butler

August 19, 2019

STATE OF OHIO, Appellee,
v.
KEITH RANDALL SLAMKA, Appellant.

          CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-06-0983

          Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, for appellee

          Michele Temmel, for appellant.

          OPINION

          HENDRICKSON, P.J.

         {¶ 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. Slamka.
[APPELLANT]: Uh-huh.
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 ...

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