Decided December 31, 1997. APPEAL from the Court of Appeals for Richland County, No. 97 CA 39. In 1981, appellant, Frederick Lake, was convicted of burglary and attempted breaking and entering and was sentenced to an aggregate prison term of five to fifteen years. Between 1984 and 1994, he was paroled and declared a parole violator on several occasions.
Although a trial court generally possesses discretion when sentencing an offender, a trial court must not disregard the statutory principles, procedures, presumptions, and factors. See R.C. 2929.12(A); State v. Persons (Apr. 26, 1999), Washington App. No. 98 CA 19, unreported; State v. McConnaughey (Mar. 4, 1998), Athens App. No. 97 CA 39, unreported; State v. Thomas (May 18, 1998), Washington App. No. 97 CA 20, unreported; State v. Ditterline (Sep. 5, 1997), Washington App. No. 96 CA 47, unreported. As noted in Persons, an appellate court's review of a trial court's decision regarding sentencing is no longer conducted pursuant to the traditional "abuse of discretion" standard.
Although a trial court generally possesses discretion when sentencing an offender, a trial court must not disregard the statutory principles, procedures, presumptions, and factors. See R.C. 2929.12(A); State v. Persons (Apr. 26, 1999), Washington App. No. 98 CA 19, unreported; State v. McConnaughey (Mar. 4, 1998), Athens App. No. 97 CA 39, unreported; State v. Thomas (May 18, 1998), Washington App. No. 97 CA 20, unreported; State v. Ditterline (Sep. 5, 1997), Washington App. No. 96 CA 47, unreported. As noted in Persons, an appellate court's review of a trial court's decision regarding sentencing is no longer conducted pursuant to the traditional "abuse of discretion standard.
Petitioner obviously had that which he now seeks, and there is nothing in the record to show just how counsel's further input would have changed the circumstances. See State v. Hoskins (Jan. 30, 1998), Clark App. No. 97 CA 39, unreported. Given this record, we find the court did not err by refusing to conduct a hearing on the petitioner for postconviction relief since the petition failed to assert any colorable grounds for relief.
The factors a court should consider in applying this reasonable person test include whether the encounter takes place in surroundings that are familiar to the suspect; the number of law enforcement officers present, as well as their conduct and demeanor; the degree of physical restraint imposed; and the duration and character of the interrogation. State v. Salyer (Apr. 10, 1998), Miami App. No. 97 CA 39, unreported. In situations where a suspect is under some type of confinement, there is a split of authority regarding the point at which Miranda warnings must be administered.
Although a trial court generally possesses discretion when determining an appropriate sentence, a trial court must not disregard the statutory principles, procedures, presumptions, and factors. See R.C. 2929.12(A); State v. Persons (Apr. 26, 1999), Washington App. No. 98 CA 19, unreported; State v. McConnaughey (Mar. 4, 1998), Athens App. No. 97 CA 39, unreported; State v. Thomas (May 18, 1998), Washington App. No. 97 CA 20, unreported; State v. Ditterline (Sep. 5, 1997), Washington App. No. 96 CA 47, unreported. As noted in Persons, an appellate court's review of a trial court's decision regarding sentencing is no longer conducted solely pursuant to the traditional "abuse of discretion" standard.
Defendant's detailed account of his attorney's failure to explain the consequences of the waiver, based on facts within his knowledge, sworn to by him and unrebutted by anything in the record, was sufficient to warrant an evidentiary hearing on his petition. See, e.g., State v. Smoot (July 18, 1997), Clark App. No. 96-CA-107, unreported, 1997 Ohio App. LEXIS 3426, at *8-11; State v. Archer (Nov. 3, 1997), Muskingum App. No. CT97-0007, unreported, 1997 Ohio App. LEXIS 5351, at *8; State v. Hoskins (Jan. 30, 1998), Clark App. No. 97 CA 39, unreported, 1998 Ohio App. LEXIS 228, at *6-11; and State v. Akers (Feb. 2, 1998), Lawrence App. No. 97 CA 22, unreported, 1998 Ohio App. LEXIS 555, at *11-14. This matter, therefore, is remanded for an evidentiary hearing on the issue of his attorney's alleged failure to adequately explain the consequences of defendant's waiver of his right to a trial by jury.