[Cite as State v. Mayle, 2016-Ohio-7499.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. CT2016-0014
JAMES MAYLE                                    :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Muskingum
                                                   County Court of Common Pleas, Case No.
                                                   CR2015-0359



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            October 21, 2016


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GERALD ANDERSON II                                 DAVID SAMS
Box 189                                            Box 40
Zanesville, OH 43702                               West Jefferson, OH 43162
[Cite as State v. Mayle, 2016-Ohio-7499.]


Gwin, P.J.

        {¶1}     Appellant appeals the February 18, 2016 judgment entry of the Muskingum

Court of Common Pleas sentencing appellant to a prison term of nine (9) months.

Appellee is the State of Ohio.

                                            Facts & Procedural History

        {¶2}     On November 17, 2015, the Central Ohio Drug Task Force made a

controlled buy of marijuana from appellant James D. Mayle using a confidential informant.

Appellant was charged with the following in a November 25, 2015 indictment: trafficking

in drugs (marijuana), a felony of the fifth degree; permitting drug abuse, a felony of the

fifth degree; possession of drug paraphernalia, a fourth-degree misdemeanor; and

possession of drugs (marijuana), a minor misdemeanor.

        {¶3}     On January 11, 2016, appellant entered a plea of guilty to all four counts.

At the plea hearing, appellant stated he understood each of the two felonies carried a

possible penalty of six to twelve months imprisonment. At the plea hearing, the State of

Ohio recommended an aggregate sentence of six months in prison. Also at the plea

hearing, the trial court judge inquired of appellant, “And you understand the prosecutor’s

recommendation is not binding on this Court, I do not have to follow it?” Appellant

responded, “Yes, sir.”

        {¶4}     Also on January 11, 2016, appellant signed a “plea of guilty” form, stating

he withdrew his former not guilty plea and entered a plea of guilty to all four counts. The

form stated appellant understood the maximum penalties, including the potential prison

terms for each count. Further, that the parties agreed to a joint recommendation of

sentence of an aggregate term of six months in prison. In the plea of guilty form, appellant
Muskingum County, Case No. CT2016-0014                                                     3


specifically acknowledged he “understands any sentencing recommendation does not

have to be followed by the Court.” The trial court entered a judgment entry on January

15, 2016 on appellant’s plea of guilty, found the plea was a knowing, intelligent, and

voluntary waiver of his rights. The trial court deferred sentence and ordered a pre-

sentence investigation report (“PSI”).

       {¶5}   The trial court held a sentencing hearing on February 16, 2016 and noted

the joint recommendation of six months in prison. Counsel for appellant stated appellant

acknowledged his prior criminal record, as contained in the PSI, but was remorseful for

his actions. The trial court stated that, upon the review of the PSI, appellant had six prior

felonies. As such, the trial court declined to follow the joint recommendation. Rather, the

trial court sentenced appellant to a prison term of nine months on each felony count, a

thirty-day term of incarceration for the fourth-degree misdemeanor, and a fine for the

minor misdemeanor. The trial court further found the prison terms should be served

concurrently, for a total aggregate prison term of nine months.

       {¶6}   The trial court entered a sentencing entry on February 18, 2016, stating the

court considered the record, the plea recommendation, the principles and purpose of R.C.

2929.11, and the factors contained in R.C. 2929.12, in sentencing appellant to a prison

term of nine months. The trial court stated it made judicial findings that appellant has a

prior felony record.

       {¶7}   Appellant appeals the February 18, 2016 judgment entry of the Muskingum

County Court of Common Pleas and assigns the following as error:
Muskingum County, Case No. CT2016-0014                                                       4


       {¶8}   “I. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT-

APPELLANT TO A LONGER PRISON TERM THAN JOINTLY RECOMMENDED BY

THE PARTIES.”

                                                  I.

       {¶9}   The Ohio Supreme Court recently announced the standard of review

appellate courts are to apply to felony sentences. In State v. Marcum, -- N.E.3d ----, 2016-

Ohio-1002, the Court held that R.C. 2953.08(G)(2)(a) compels us to modify or vacate

sentences if we find, by clear and convincing evidence, that the record does not support

any relevant findings under “division (B) or (D) of section 2929.13, division (B)(2)(e) or

(C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.” Id.

Clear and convincing evidence is that measure or degree of proof which is more than a

mere “preponderance of the evidence,” but not to the extent of such certainty as is

required “beyond a reasonable doubt” in criminal cases, and which will produce in the

mind of the trier of facts a firm belief a conviction as to the facts sought to be established.

Id., citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).

       {¶10} Appellant contends the trial court erred when it deviated from the jointly

recommended sentence. However, this Court has previously held that a trial court is not

bound by a recommendation proffered by the State. State v. Hartrum, 5th Dist. Licking

No. 2014 CA 00106, 2015-Ohio-3333, citing State v. Kitzler, 3rd Dist. Wyandot No. 16-

02-06, 2002-Ohio-5253. “A trial court does not err by imposing a sentence greater than

that recommended by the State when the trial court sufficiently explains to the defendant

the potential incarceration periods and sentencing ranges which may be imposed upon

conviction.” State v. Bailey, 5th Dist. Knox No. 05-CA-13, 2005-Ohio-5329. In this case,
Muskingum County, Case No. CT2016-0014                                                     5


in the “plea of guilty” form signed January 11, 2016 by appellant, appellant acknowledged

he understood the maximum sentence for each count. During the plea hearing on

January 11, 2016, the trial court appraised appellant of the nature of the offenses, the

ranges of penalties and fines provided for the offenses, the possibility of the imposition of

post-release control, and the potential consequences for a violation of post-release

control. Appellant stated he understood the nature of the charges against him, and the

maximum penalties for each count; specifically, that each of the two felonies carried a

possible penalty of six to twelve months imprisonment.

       {¶11} During the plea colloquy, the trial court adequately informed appellant of the

possibility of receiving the maximum sentence despite the joint sentencing

recommendation, as the trial court asked appellant, “And you understand the prosecutor’s

recommendation is not binding on this Court, I do not have to follow it?” Appellant

responded, “Yes, sir.”     Further, in the “plea of guilty” form, appellant specifically

acknowledged he “understands any sentencing recommendation does not have to be

followed by the Court.” Finally, during the sentencing hearing, the trial court adequately

explained why it sentenced appellant to the nine month sentence as a result of the trial

court’s review of the PSI and his six prior felonies. See State v. Hartrum, 5th Dist. Licking

No. 2014 CA 00106, 2015-Ohio-3333. Accordingly, we find the trial court did not err in

rejecting the joint recommendation.

       {¶12} Appellant argues the case of State v. Buell in analogous to the instant case.

10th Dist. Franklin No. 15AP-789, 2016-Ohio-2734.               However, we find Buell

distinguishable from the instant case. Buell does not address whether a trial court must

follow a joint recommendation. Id. Rather, the issue in Buell was whether the trial court
Muskingum County, Case No. CT2016-0014                                                      6


abused its discretion when it denied Buell’s motion to withdraw his pre-sentence guilty

plea, which the Tenth District Court of Appeals noted “should be freely and liberally

granted.” Id. The trial court found a joint recommendation was never promised to Buell

by a previous trial judge. Id. The Court of Appeals found the conclusion that a joint

recommendation was never promised was an erroneous conclusion and likely impacted

the trial court judge’s evaluation of whether the defendant had a reasonable and

legitimate basis for wanting to withdraw his guilty plea. Id. Thus, the facts and legal

rationale in Buell are inapplicable to the instant case where appellant pled guilty to the

offenses, was informed of the maximum penalties for the charges, and acknowledged

during the plea and in the plea form that he understood the trial court was not required to

follow the joint recommendation for sentence.

        {¶13} Though appellant cites R.C. 2953.08(D)(1) in conjunction with Buell, R.C.

2953.08(D)(1) is not cited or mentioned in Buell. R.C. 2953.08(D)(1) does not require a

trial court to follow a joint recommendation and, as this Court has previously held, R.C.

2953.08(D)(1) provides that a case is not properly reviewable on appeal when a sentence

is jointly recommended. State v. Owens, 5th Dist. Perry No. 15-CA-00015, 2016-Ohio-

1203.

        {¶14} In his brief, appellant also contends the trial court’s citation of six previous

felonies in refusing to follow the joint recommendation was erroneous because there was

no indication when the felonies occurred, whether appellant served prison time for these

felonies, and that R.C. 2929.13(B)(1) prohibits a prison term for fifth degree felonies

unless certain exceptions are met. Appellant is correct that R.C. 2929.13(B)(1) provides

that an offender convicted of a non-violent fourth or fifth degree felony shall be sentenced
Muskingum County, Case No. CT2016-0014                                                   7


to community control. However, this mandatory community control only applies if, “the

offender previously has not been convicted of or pleaded guilty to a felony offense.” R.C.

2929.13(B)(1)(a)(i).

       {¶15} In this case, there is no question appellant has prior felony convictions, as

these prior felony convictions were detailed in the PSI and acknowledged by counsel for

appellant at appellant’s sentencing hearing. Pursuant to the plain language of R.C.

2929.13(B)(1), there is no requirement that the trial court undertake a colloquy during the

sentencing hearing as to the dates of the felonies or circumstances surrounding the

felonies. In this case, the trial court, after the plea hearing obtained a PSI prior to the

sentencing hearing, with the pertinent information contained in it. The nine month prison

sentence is within the range provided for a fifth degree felony.            Further, R.C.

2929.13(B)(1) requires only a prior felony conviction, the statute does not require a prior

prison sentence to avoid the presumption of community control. State v. Mann, 5th Dist.

Coshocton No. 2012CA0018, 2013-Ohio-2133; State v. Kerr, 5th Dist. Ashland No. 13

COA 044, 2014-Ohio-2013.

       {¶16} We find the sentence in this case is not clearly and convincingly contrary to

law. The sentence was within the statutory range for a fifth-degree felony. The trial court

also reviewed and considered the PSI, as well as the statements of appellant and his

counsel. The trial court noted appellant’s prior felony record at sentencing. See State v.

Riter, 5th Dist. Stark No. 2013CA0011, 2014-Ohio-1465.
Muskingum County, Case No. CT2016-0014                                             8


      {¶17} Based on the foregoing, appellant’s assignment of error is overruled. The

February 18, 2016 judgment entry of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur