RjG'NA, NQV 2 4 z010. NOv ^ ^ CLERK F C URT SUPREME CUURTOF OHIO CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO

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1 RjG'NA, IN THE SUPREME COURT OF OHIO GEORGE WILLIAMS Defendant-Appellant, vs. STATE OF OHIO Plaintiff-Appellee. On Appeal from the Hamilton County Court of Appeals, First AppeAate District Court of Appeals No: C Trial Court Case No: B MEMORANDUM 1N SUPPORT OF JURISDICTION OF APPELLANT GEORGE WILLIANiS Timothy J. Bicknell Attorney for Appellant P.O. Box Cincinnati, Ohio phone: (513) fa.x: (513) tjbicknefl@gmail.eom Joseph Deters ( P) Hamilton County Prosecut+ur Scott Heenan ( P) Asst. ProsecutingAttorney Attorney for Appellee 230 East Ninth Street., Suite 4000 Cincinnati, Ohio (513) (513) (fax) ^^UK) NQV 2 4 z010 CLERK F C URT SUPREME CUURTOF OHIO NOv ^ ^ CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS 1. THIS CASE INVOLVES A FELONY AND IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST II. STATEMENT OF THE CASE A. PROCEDURAL POSTURE B. STATEMENT OF THE FACTS III. LAW AND ARGUMENT Appellant's agreed sentence was contrary to law and not authorized by law because the trial court sentenced Appellant to consecutive prison terms without making all of the findings required by Ohio Revised Code (E) IV. CONCLUSION...10 V. CERTIFICATE OF SERVICE...11 APPENDIX Entry Appointing Appellate Counsel......A-l Judgment Entry, First District Court of Appeals Case No. C (October 15, 2010)... A-Z 2

3 I. TIIIS CASE INVOLVES A FELONY AND IS A CASE OF PUBLIC OR GREAT GENFi2ALINTEREST Gearge Williams respectfully requests a new sentencing hearing that complies with Ohio's consecutive sentencing law, specifically, R.C (E)(4). George Williams was sentenced to consecutive sentences without the findings required by Ohio law. In light of the United States Supreme Court's decision in Oregon v. Ice (2009), 129 S.Ct. 71 1, George Williams should be provided a new sentencing hearing in line with R.C (E)(4). II. STATEMENT OF THE CASE This case involves a three ysar prison sentence which was imposed on Appellant following a guilty plea to a probation violation. The three year sentence was pursuant to a plea agreement and agreed sentence that provided that Appellant would plead guilty to one count of possession of cocaine, and one count of trafficking in cocaine, each fourth degree felonies, in exchange for a reconiunendation of community control.i However, the agreed sentence required that if Appellant was faund guilty of violating community control the trial court would impose two consecutive, maximum sentences for each felony count, resultmg in a total sentence of three years in the Ohio Department of Corrections? Appellant's three year sentence was contrary to and not authorized by law because the jointly recommended sentence did not abrogate the trial court's duty to make all the findings required under RC T.d. 97, pp.1-3. Zid.at3. 3

4 A. Procedural Posture The Appeal Appellant, George Williams, appealed from a judgment entered November 16, 2009, in which the trial court rcvoked community control and imposed a sentance of thirty-six months in the Ohio Department of Corrections on one count of possession of cocaine, and one count of trafficking in cocaine, each fourth degree felonies.3 The First District Court of Appeals rendered its decision on October 15, 2010, dismissing Appellant's appeal based on the State v Foster decision of the Ohio Supreme Court, and its effect on R.C $ Appellant, George Williams, is now asking this Court to accept his appeal based on the fact that State v. Foster is no longer good law. The Trial Court Case On March 18, 2009, Appellant pleaded guilty to one count of trafficking of cocaine and one count of possession of cocaine, in violation of Ohio Revised Code sections (A)(1), and (A) respectively. The guilty plea was made pursuant to an agreed sentence that provided for a recommendation of community control, however, the agreement stated that if Appellant violated his comrnunity control the trial court would impose eighteen month sentences on both counts, to run consecutively.5 On Apri122, 2009, the trial court sentenced Appellant on the possession and trafficking counts, and placed Appellant on community control.6 3 T.d. 108, p.1. 4 see Appendix A-2. 5 T.d. 97, pp T.d

5 degree felony possession of cocaine, in violation of ORC section (A).iD For close to two years, the case consisted of the standard hearings, motions, and discovery requests, until March of 2009, when Appellant entered a guilty plea to two reduced charges. On March 18, 2009, Appellant entered a plea of guilty to two fourth degree felony charges of trafficking and possession of cocaine. The plea was made pursuant to an agreement with the prosecution on a recommended sentence which was an "agreed term of community control the terms of which will be determined by the court. The court will order the probation department to report and and all violations to the court. If found guilty of a community control violation the court will sentence to 18 months on each count consecutive for a total sentence of 36 months ODC on any community control violation."i i The trial court accepted the agreed sentence, and on April 22, 2009, a sentencing hearing was held where Appellant was sentenced to three years of community control for each of the two counts, as well as a two year driving license suspension.12 During the hearing, Appellant's counsel talked to the court about Appellant's lack of a criminal history, specifically pointing out that the only contact Appellant had with the court was a minor misdemeanor marijuana conviction the previous year.13 Before ending the hearing, the court told Appellant that if he was found guilty of violating any conditions of community control, the court had no discretion and would be required to send Appellant to prison for a period of 36 months T.d T.d. 97, pp T.d Sentencing Hearing, T.d. 99-5: id atp.11:

6 Appellant's probation officer submitted a community control sanction violation on August 31, 2fl09 resulting from violation of two rules of Appellant's community control. First, Appellant was twice cited for driving under suspension and entered pleas to both driving charges in Cheviot Ohio Area Court without counsel. Second, Appellant was alleged to have failed to make full regular monthly payments toward his financial responsibility to the probation <leparttnent., 5 On September 30, 2009, Appellant entered a guilty plea to the probation violations, and was found guilty by the trial court. On November 2, 2009, Appellant appeared in court for sentencing with new counsel, and after denying a request by counsel for a one day continuance, the trial court sentenced Appellant to 18 months in the Department of Corrections on the trafficking count, and 18 months on the possession count; to run consecutively: 16 Appellant is currently serving that sentence. Appellant tiinely appealed the trial couit's decision to the First District Court of Appeals, which dismissed Appellant's appeal in an entry dated October 15, Ul. LAW ANLI ARGUMENT Appellant's agreed sentence was contrary to law and not authorized by law because the trial court sentenced Appellant to consecutive prison terms without making the findings required by Ohio Revised Code (E). ISSC3IE PRESENTED FOR REVIEW AND ARGUMENT 15 T.d e T.d

7 IN THE CflUitT OF APPEAI,S FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, APPEAL NO. C-ogoo873 TRIAL NO. B-o7oi339 Plaintiff=Appellee, vs. JITDGIYIENT EN'1'R I'. GEORGE WILLIAMS, Defendant-Appellant. ^^ LOCT T ^", We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court ; As part of a plea agreement, defendant-appellant, George Williams, pleaded guilty to trafficking in cocaine2and possession of cocaine3. Under the terms of his agreed sentence, the trial court imposed community control with the stipulation that if Williams violated his community control, he would be sentenced to an i8-month prison term for each offense to be served consecutively, for a total prison term of 36 months. A few months later, Williams pleaded guilty to violating his community control. The trial court imposed an i8-month prison term for each underlying offense and ordered that the terms be served consecutively. This appeal followed. See S.Ct.RBep_Op. g(a), App-R. u.i(e), andi.oer. m. % R.C, (A)(i). R.C u(A), fiuiillll Nfl I ^_--

8 Y OHIO FIRST DISTItILT COURT OF APPF.AI..^, In his single assignment of error, Williams challenges the imposition of the agreed sentence, claianing that it was contrary to law and not authorized by law because the trial court imposed consecutive prison terms without artaking the necessary findings under R.C. 292g.i4(E). This assignment is not well taken. Under au rent Ohio law, a trial court "has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently. 4 In State v. Elmore, the Ohio Supreme Court followed its Foster decision and reiterated that trial courts 'are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences."5 Because the trial court was not required to make any statutory findings prior to imposing consecutive prison terms in this case, Williams's sentence ivas authorized by law.6 Therefore, the agreed sentence was not appealable under R.C_ 2953.o8(D), and we dismiss the appeal. rs Further, a certified copy of this judgment entry shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. $II[.DTiB3tArrDT, F.J., SI72d'DERMANN and DINKEi.ACKER, JJ. To tlle Cl$rk: Enter upon the Journal of the C ubtuctober 15, 2010 I It per order of the Court 4 State u. Bates, u8 Ohiv St.3d 174, z0 o8-0hio-1983, 887 N.E.2d 328, 18.; State v. Etrrtare, iz2 Ohio St.3d g72, 480, 2oo9-Ohio-g478, 91z N.E.zd582. s State u. E(mare, 122 Ohio St.3d 47z, zoo9-ohio-3478, 912 N.E.2d 582, 941, quoting State v. Foster,lo9 Ohio St.3d 1, 2oo6-4hio-856, 845 N.E.2d 470. b See R.C. z9s3.o8(d); State v. tfnderwood, 124 Ohio St.gd 36^, 2v1o-0hio-t, 922 N.E.zd 923 (holding LhaL when a sentence com^orts with all the mandatory sentencing provisions, it is authorized by law and is not appealable within the meaning of R.C. 29h3.o8[D]). 2 r