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State v. McGuire

Court of Appeals of Ohio, Fifth District, Licking

December 24, 2019

STATE OF OHIO Plaintiff-Appellee
v.
LESLIE J. McGUIRE Defendant-Appellant

          Appeal from the Licking County Court of Common Pleas, Case No. 18 CR 853

         JUDGMENT: Affirmed

          FOR PLAINTIFF-APPELLEE BILL HAYES LICKING COUNTY PROSECUTOR

          FOR DEFENDANT-APPELLANT JAMES A. ANZELMO ANZELMO LAW

          Hon. William B. Hoffman, P.J Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

          OPINION

          Hoffman, P.J.

         {¶1} Appellant Leslie J. McGuire appeals the judgment entered by the Licking County Common Pleas Court convicting him of vandalism (R.C. 2909.05(B)(1)) and sentencing him to one year incarceration, to be served consecutively to the one year sentence imposed for theft in an unrelated case, and consecutively to 16 months incarceration imposed for violation of post-release control Appellant was under at the time of the offense. Appellee is the state of Ohio.[1]

         STATEMENT OF THE FACTS AND CASE

         {¶2} In the instant case, Newark Police responded to a complaint of vandalism at Goldies, located on Fifth Avenue in Newark, Ohio. The owner of the business reported a skills machine had been damaged and the money removed from the machine. Appellant was identified by the owner as the person responsible. Surveillance video showed Appellant using a tool to pry open the machine. Appellant took the money which fell from the machine, totaling $909, and left the building. In addition to the amount of money taken from the machine, Appellant caused $1082 in damage to the machine.

         {¶3} Appellant also was charged with theft from Rural King in Heath, Ohio, in Case Number 18 CR 936. Appellant entered the store and filled a cart with power tools and clothing. He attempted to exit the store through a rear door without paying for the items in the cart. Finding the door secured, he left the cart in an aisle and exited through an unlocked door in a maintenance area. Approximately one hour later, Appellant retrieved the cart and exited through the previously-discovered unlocked maintenance door. The value of items stolen was $3, 144.76.

         {¶4} Appellant entered a guilty plea to both charges. As part of the plea agreement, the parties jointly recommended "a total of 12 months ODRC between this case and 18 CR 936, State does not seek to impose any PRC time." Admission of guilt form, February 21, 2019.

         {¶5} The case proceeded to a change of plea hearing. After convicting Appellant in both cases upon his plea of guilty, the trial court sentenced Appellant to one year on each conviction, to be served consecutively, plus sixteen months incarceration for violation of post-release control, to be served consecutively.

         {¶6} It is from the judgment of conviction and sentence in Case No. 18 CR 853 Appellant prosecutes this appeal, assigning as error:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY REJECTING THE JOINTLY RECOMMENDED SENTENCE THE DEFENSE AND PROSECUTION MADE PURSUANT TO MCGUIRE'S PLEA BARGAIN.
II. THE TRIAL COURT UNLAWFULLY ORDERED MCGUIRE TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

         I.

         {¶7} In his first assignment of error, Appellant argues the trial court abused its discretion in rejecting ...


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