Opinion

State v. Miller

  • 2022 Ohio 2187
Court
Ohio Court of Appeals
Filed
Jun 27, 2022
Status
Published
On the bench
Willamowski
Cited by
0 cases
Authority
More cited than 11.3%

The opinion

[Cite as State v. Miller, 2022-Ohio-2187.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-22-04

v.

JILL N. MILLER, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court

Trial Court No. CR 20 05 0111

Judgment Affirmed

Date of Decision: June 27, 2022

APPEARANCES:

Dale D. Cook for Appellant

Eric C. Stewart for Appellee

Case No 8-22-04

WILLAMOWSKI, J.

{¶1} Defendant-appellant Jill N. Miller (“Miller”) brings this appeal from the

judgment of the Court of Common Pleas of Logan County. On appeal Miller claims

that the sentence imposed was excessive. For the reasons set forth below, the

judgment is affirmed.

{¶2} On November 12, 2021, Miller, pursuant to a plea agreement, changed

her plea to guilty to one count of identity fraud in violation of R.C.

2913.49(E),(I)(2), a felony of the second degree. Doc. 83. The State then requested

the dismissal of the remaining counts. Doc. 83. On December 20, 2021, the trial

court held a sentencing hearing. Doc. 87. The trial court ordered that Miller serve

a prison term of five years to a maximum of seven and one-half years. Doc. 87.

Miller appeals from this sentence and on appeal raises one assignment of error.

The trial court’s unduly harsh and excessive sentence was clearly

and convincingly unsupported by the record.

{¶3} Miller’s sole assignment of error claims that her sentence was excessive

based upon the record before it. Pursuant to R.C. 2953.08(G)(2), an appellate court

will only reverse a sentence “if it determines by clear and convincing evidence that

the record does not support the trial court’s findings under relevant statutes or that

the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1, 59 N.E.3d 1231. “Trial courts have full discretion to impose

any sentence within the statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-

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Case No 8-22-04

06, 2014-Ohio-5485, ¶ 9. Any sentence imposed within the statutory range is not

contrary to law as long as the trial court considers the factors set forth in R.C.

2929.11 and 2929.12. State v. Silfe, 3d Dist. Auglaize No. 2-20-17, 2021-Ohio-644,

¶ 10. The Supreme Court of Ohio has held that R.C. 2953.08(G)(2)(b) “does not

provide a basis for an appellate court to modify or vacate a sentence based on its

view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, ¶ 39, 169 N.E.3d

649. The Court further held that an appellate court errs if it modifies or vacates a

sentence “based on the lack of support in the record for the trial court’s findings

under R.C. 2929.11 and R.C. 2929.12.” Id. at ¶ 29.

{¶4} Here, Miller claims her sentence exceeds that which is needed pursuant

to the factors set forth in R.C. 2929.11. Miller argues that the trial court basically

imposed a maximum sentence despite the State’s recommendation of a four year

sentence and Miller’s lack of a criminal record. This Court initially notes that Miller

was convicted of a felony of the second degree. The penalties for a second degree

felony range from two to eight years in prison. R.C. 2929.14(A)(2)(a). The

minimum sentence imposed by the trial court was five years. In accordance with

R.C. 2929.144, the maximum sentence would then be a potential seven and one-half

years. At this time, Miller is not required to serve more than five years, which is

within the range of sentences for her offense. Because it is within the range and the

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Case No 8-22-04

trial court considered the appropriate statutes, the sentence is presumptively valid.

State v. Foster, 3d Dist. Union No. 14-20-17, 2021-Ohio-3408. This court has no

authority to modify or vacate the sentence based upon a claim that the sentence is

not supported by the record. This reason alone is sufficient to overrule the

assignment of error.

{¶5} Additionally, Miller acknowledged that she would be subject to an

indefinite sentence which could extend her minimum sentence by 50%. Doc. 83.

The plea agreement also informed Miller that, despite the State’s agreement to

recommend a sentence of four years, the trial court was not required to follow the

recommendation. Doc. 83. At the change of plea hearing, Miller was advised that

she was agreeing to the following:

The Court: * * * The State will recommend a prison sentence of

not more than four years. Reagan Tokes applies. Agreed

restitution figure of $627,849.16. I know that the sentence I will

receive is solely a matter within the control of the judge. I

understand if the State has agreed to a sentencing

recommendation, the Court is not bound to accept the

recommendation.

***

The possible then [sic] indefinite sentencing reads as follows: For

first- and second-degree felonies, I understand that for a

qualifying felony two, the judge will select a term from the

existing range of two, three, four, five, six, seven, or eight years

and that number will be the minimum term, which would be as

stated two, three, four, five, six, seven, or eight years. The

maximum term is the minimum term plus 50 percent or one half

of that minimum term imposed on the most serious qualifying

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Case No 8-22-04

felony one or felony two offense being sentenced; therefore, the

maximum sentence would be eight years plus the 50 percent

would be four years, so eight to 12 under the Regan [sic] Tokes

law. Do you understand the possible maximum penalty?

The Defendant: Yes.

Tr. 8-11. Thus, Miller was aware that she could be sentenced to more than the four

years recommended by the State at the time she entered her plea of guilty.

{¶6} For all of the reasons discussed above, this Court finds that Miller has

not established by clear and convincing evidence that the prison term imposed was

contrary to law. The assignment of error is overruled.

{¶7} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Logan County is affirmed.

Judgment Affirmed

ZIMMERMAN, P.J. and MILLER, J., concur.

/jlr

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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