State v. Firouzmandi, 2006 Ohio 5823 (Ohio App. 11/3/2006), 2006-CA-41.

• Decision Date: 03 November 2006
• Docket Number: No. 2006-CA-41.,2006-CA-41.
• Parties: State of Ohio, Plaintiff-Appellee v. Nima Firouzmandi, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 1

2006 Ohio 5823

State of Ohio, Plaintiff-Appellee v. Nima Firouzmandi, Defendant-Appellant.

No. 2006-CA-41.

Court of Appeals of Ohio, Fifth District, Licking County.

Date of Judgment Entry: November 3, 2006.

Criminal appeal from the Licking County Court of Common Pleas, Case No. 05CR319.

Affirmed.

Brian T. Waltz, Licking County Prosecutor's Office, 20 S. Second Street, Newark, OH 43055, for Plaintiff-Appellee.

W. Joseph Edwardsm 523 South Third Street, Columbus, OH 443215, for Defendant-Appellant.

Before: Hon: W. Scott Gwin, P.J., Hon: William B. Hoffman, J., Hon: Sheila G. Farmer, J.

OPINION

GWIN, P.J.

{¶1} Defendant-appellant Nima Firouzmandi appeals from the Licking County Court of Common Pleas decision sentencing him to consecutive sentences upon his pleas to one count of Involuntary Manslaughter, a felony of the first degree in violation of R.C. 2903.04, one count of Aggravated Robbery, a felony of the first degree in violation of R.C. 2911.01, and one count of Felonious Assault, a felony of the second degree in violation of R.C. 2903.11. Appellant also entered a guilty plea to a three year firearm specification under R.C. 2929.14(D) and R.C. 2941.145. The plaintiff-appellee is the State of Ohio. The following facts are relevant to this appeal.

{¶2} On April 4th, 2005, the appellant went to the home of David and Jennifer Lynn located on Marne Road just outside of the city limits of Newark, in Licking County, Ohio. The appellant went there accompanied by two other individuals, one being Vincent Williams. (Transcript, Change of Plea, January 11, 2006 at 15). [Hereinafter "PT."].

{¶3} The parties conducted negotiations over the sale by Mr. Lynn to appellant of a quantity of marijuana.

{¶4} After the negotiations had taken several minutes, several eyewitnesses stated to the police that appellant produced a gun and proceeded to rob or attempt to rob the Lynn's of the marijuana rather than paying for it. (Id.). The presentation of the gun by appellant prompted Mr. Lynn to pull a gun from his waistband. After the gun the appellant had was discharged, Mr. Lynn also discharged his gun. Mr. Lynn's gun caused the fatal shots to Vincent Williams and also injured appellant.

{¶5} Appellant was indicted by a Licking County Grand Jury on July 1, 2005 and charged in a six count indictment with the following offenses: Murder, in violation of R.C. 2903.02(B); Aggravated Robbery, in violation of R.C. 2911.01(A)(1); Felonious Assault, in violation of R.C. 2903.11(A)(1) and/or (A)(2); Having Weapons while Under Disability, in violation of R.C. 2923.13 (A)(3); and Tampering with Evidence, in violation of R.C. 2921.12(A)(1). Firearm Specifications were also included on the counts charged.

{¶6} At his arraignment, Appellant entered not guilty pleas on all counts.

{¶7} On January 11, 2006, Appellant withdrew his previously entered not guilty pleas and entered guilty pleas to the following offenses: the lesser included offense of Involuntary Manslaughter in violation of R.C. 2903.04, a felony of the first degree; Aggravated Robbery, in violation of R.C. 2911.01, a felony of the first degree; and Felonious Assault, in violation of R.C. 2903.11, a felony of the second degree. Appellant also entered a guilty plea to a three year firearm specification under R.C. 2929.14(D) and R.C. 2941.145.

{¶8} After his guilty pleas, the trial court adjourned the proceedings, ordered a pre-sentence investigation report be prepared and scheduled sentencing at a later date to allow appellant sufficient time to have mitigation evidence developed and presented. (Id. at 21).

{¶9} At sentencing, the court was provided with a pre-sentence report as well as a sixteen page psychological report of the appellant prepared on his behalf by a forensic psychologist. (Transcript, Sentencing, March 14, 2006 at 3-4). [Hereinafter "ST."]. The report indicated that appellant was deeply remorseful for his actions and had contemplated suicide because he was responsible for the death of his best friend. (Id. at 4-5).

{¶10} In addition, the victim's mother, Vida Williams, appeared at sentencing and confirmed that appellant was a good friend of her son's. She recommended a lesser sentence for appellant. (ST. at 9). Appellant made a statement in elocution during which he apologized to Mr. and Mrs. Williams as follows: "I realize I made a terrible mistake. I would like to say to Mr. and Mrs. Williams, I am truly sorry for that horrible night. I lost a best friend. They lost a son. I'm nervous, your Honor. I'm sorry." (ST. at 7).

{¶11} The trial court noted that Mr. Lynn had received a nine year sentence based upon the fact that he was only charged with one felony and one firearm specification, whereas appellant was charged with three felonies and three firearm specifications. (Id. at 10-11).

{¶12} The court sentenced appellant to six years on the count of involuntary manslaughter; five years on the count of aggravated robbery; two years on the count of felonious assault and three years on the firearm specification. The trial court ordered all sentences to run consecutively for an aggregate sentence of sixteen-years.

{¶13} It is from this sentence that appellant has filed this appeal raising the following assignments of error for our consideration:

{¶14} "I. BY FAILING ARTICULATING [sic.] NO RATIONALE FOR THE SENTENCE IMPOSED, THE TRIAL COURT FAILED TO FOLLOW OHIO LAW THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO EFFECTIVE AND MEANINGFUL APPELLATE REVIEW CONTRA OHIO LAW AS WELL AS THE OHIO AND FEDERAL CONSTITUTIONS (App. PP. 1-2).

{¶15} "II. IF, IN THE ALTERNATIVE, THIS COURT DETERMINES THAT THE TRIAL COURT, UNDER FOSTER, NEED NOT SET FORTH ITS RATIONALE PRIOR TO SENTENCING A CRIMINAL DEFENDANT, THEN APPELLANT SUBMITS THAT THE FOSTER COURT VIOLATED THE DOCTRINE OF SEPARATION-OF-POWERS BY UNDERMINING AN APPELLATE COURTS OBLIGATION TO CONDUCT MEANINGFUL AND EFFECTIVE REVIEW OF FELONY SENTENCING CONTRA OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS. (Sentencing Tr. & App. PP. 1-2)."

I.

{¶16} At the outset we note, there is no constitutional right to an appellate review of a criminal sentence. Moffitt v. Ross (1974), 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2444; McKane v. Durston (1894), 152 U.S. 684, 687, 14 S. Ct. 913. 917; State v. Smith (1997), 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. This proposition has been firmly established as noted by the Ohio Supreme Court: "[t]he United States Supreme Court in Estelle v. Dorrough (1975), 420 U.S. 534, 536, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377, 380, held, `there is no federal constitutional right to state appellate review of state criminal convictions.' The Supreme Court has stated that `the right of appeal is not essential to due process, provided that due process has already been accorded in the tribunal of first instance.' State ex rel. Bryant v. Akron Metro. Park Dist. (1930), 281 U.S. 74, 80, 50 S.Ct. 228, 230, 74 L.Ed. 710, 715. The United States Supreme Court laid out the rationale most clearly in Ross v. Moffitt (1974), 417 U.S. 600, 610-611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341, 351:

{¶17} `The defendant needs an attorney on appeal not as a shield to protect him against being `haled into court' by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all'". State v. Smith (1997), 80 Ohio St.3d 89, 97-97, 1997-Ohio-355, 684 N.E.2d 668, 680.

{¶18} Although the Ohio Constitution does not expressly provide for a "right" to appeal, Article IV, Section 3(B)(1)(f) does provide for the establishment of an appellate court system. Section 2505.03 of the Ohio Revised Code further provides that: "[e]very final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, agency, board, department, tribunal, commission, or other instrumentality, may be reviewed...unless otherwise provided by law." In addition, Rule 3(A) of the Ohio Rules of Appellate Procedure make every litigant entitled to "[a]n appeal as of right...by filing a notice of appeal...within the time allowed by Rule 4..."

{¶19} In Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St. 3d 80, the Ohio Supreme Court interpreted Article IV, Section 3(B) (1) (f) , Section 2505.03, and Rule 3(A), and concluded: "[b]y developing a process of appellate review, states provide litigants with a property interest in the right to appeal. Clearly, litigants cannot be deprived of this right without being granted due process of law". Id. at 85.

{¶20} "While normal sentencing proceedings are not immune from all due process attacks, see Williams v. New York, 337 U.S. 241, 252 n. 18, 69 S.Ct. 1079, 1085 n. 18, 93 L.Ed. 1337 (1949); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), the Supreme Court has required only minimal due process protections in those proceedings. See United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); see also Gardner v. Florida, 430 U.S. 349, 358 n. 9, 97 S.Ct. 1197, 1205 n. 9, 51 L.Ed.2d 393 (1977) (plurality opinion)". United State v. Davis (3rd Cir 1983), 710 F.2d 103, 106.

{¶21} An individual has no substantive right to a particular sentence within the range authorized by statute. Gardner v. Florida (1977), 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205. In other words "[t]he sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction, much less on review of the state court's denial of habeas corpus. It is not the duration or severity of this sentence that renders it constitutionally...