[Cite as State v. Stone, 2012-Ohio-1895.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-11-39 

 v. 

MARLIN EUGENE STONE, JR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 10-CR-534 

Judgment Affirmed 

Date of Decision: April 30, 2012 

 

APPEARANCES: 

Kevin P. Collins for Appellant 

Brent W. Yager and Gregory A. Perry for Appellee 
Case No. 9-11-39 

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PRESTON, J. 

{¶1} Defendant-appellant, Marlin E. Stone, Jr. (“Stone”), appeals the 

Marion County Court of Common Pleas’ sentence of 30 years to life imprisonment 

following his plea of guilty to aggravated murder, aggravated robbery, and 

burglary. For the reasons that follow, we affirm. 

{¶2} On October 28, 2010, a Marion County Grand Jury jointly indicted 

Stone and Vanessa Manley (“Manley”) on two counts of aggravated murder in 

violation of R.C. 2903.01(A), felonies of the first degree (Counts One and Two); 

two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies of 

the first degree (Counts Three and Four); two counts of robbery in violation of 

R.C. 2911.02(A)(2), felonies of the second degree (Counts Five and Six); two 

counts of aggravated burglary in violation of R.C. 2911.11(A)(1), felonies of the 

first degree (Counts Seven and Eight); one count of burglary in violation of R.C. 

2911.11(A)(2), a felony of the first degree (Count Nine); four counts of tampering 

with evidence in violation of R.C. 2921.12(A)(1), felonies of the third degree 

(Counts Ten, Eleven, Twelve, and Thirteen); and one count of obstructing justice 

in violation of R.C. 2921.32(A)(4), a felony of the third degree (Count Fourteen). 

(Doc. No. 1). On December 13, 2010, Stone pleaded not guilty to all of the 

charges. (Doc. No. 26). 
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{¶3} On April 21, 2011, Stone filed a motion to sever Manley’s trial from 

his trial. (Doc. No. 99). The trial court granted Stone’s motion on June 2, 2011. 

(Doc. No. 131). 

{¶4} On June 6, 2011, Stone entered guilty pleas to one count of aggravated 

murder (Count Two), one count of aggravated robbery (Count Three), and one 

count of burglary (Count Nine) pursuant to a plea agreement. (Doc. No. 134). 

According to the plea agreement, the State would dismiss the remaining charges 

and recommend a sentence of 25 years to life imprisonment on the aggravated 

murder charge (Count Two), 6 years imprisonment on the aggravated robbery 

charge (Count Three), and 2 years imprisonment on the burglary charge (Count 

Nine). (Doc. No. 135). The State would recommend that Stone serve the 

aggravated murder and aggravated robbery sentences concurrently to each other 

but consecutively to the burglary sentence for a total of 27 years to life 

imprisonment. (Id.). 

{¶5} On August 9, 2011, the trial court held a sentencing hearing. (Aug. 9, 

2011 Tr. at 163). The trial court sentenced Stone to 25 years to life imprisonment 

for aggravated murder (Count Two), 5 years imprisonment for aggravated robbery 

(Count Three), and 5 years imprisonment for burglary (Count Nine). (Aug. 15, 

2011 JE, Doc. No. 141). The trial court ordered Stone to serve the 5 years 

imprisonment for aggravated robbery concurrent to the 5 years imprisonment for 
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burglary, but consecutive to the 25 years to life imprisonment for aggravated 

murder, for a total sentence of 30 years to life imprisonment. (Id.). 

{¶6} On September 12, 2011, Stone filed a notice of appeal. (Doc. No. 

145). Stone raised two assignments of error for our review. Since the two 

assignments of error rely on the same issues of fact and law, we will address them 

together. 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY IMPOSING CONSECUTIVE 

SENTENCES WITHOUT MAKING ANY FINDINGS 

REQUIRED BY R.C. 2929.14(E)(4) 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY IMPOSING MORE THAN 

THE MINIMUM PRISON SENTENCE WITHOUT 

ADEQUATE JUSTIFICATION 

{¶7} In his assignments of error, Stone argues State v. Foster, where the 

Supreme Court of Ohio severed the portion of the sentencing statute requiring 

judicial fact-finding, should not apply in this case. 109 Ohio St.3d 1, 2006-Ohio856. Stone contends that he waived his Sixth Amendment rights by pleading 

guilty to the charges, consequently Foster is inapplicable and the trial court was 

required to make judicial findings of fact. Alternatively, Stone argues his sentence 
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is contrary to law because the trial court imposed a sentence that was greater than 

the minimum possible sentence without justification. 

{¶8} A trial court’s sentence will not be disturbed on appeal absent a 

defendant’s showing by clear and convincing evidence that the sentence is 

unsupported by the record; the sentencing statutes’ procedure was not followed or 

there was not a sufficient basis for the imposition of a prison term; or that the 

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767, 

¶ 23 (the clear and convincing evidence standard of review set forth under R.C. 

2953.08(G)(2) remains viable with respect to those cases appealed under the 

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes, 

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos. 

1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). Clear and 

convincing evidence is that “which will produce in the mind of the trier of facts a 

firm belief or conviction as to the facts sought to be established.” Cross v. 

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko, 

139 Ohio App.3d 827, 835 (12th Dist. 2000). An appellate court should not, 

however, substitute its judgment for that of the trial court because the trial court is 

‘“clearly in the better position to judge the defendant’s dangerousness and to 

ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No. 
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2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400 

(2001).1

{¶9} As a preliminary matter, we note that the General Assembly recently 

amended the sentencing statute (former R.C. 2929.14(E)(4)) and implemented new 

language requiring judicial fact-finding for consecutive sentences. Am.Sub.H.B. 

No. 86; State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28. The new 

statute went into effect on September 30, 2011. Am.Sub.H.B. No. 86. Stone was 

sentenced on August 15, 2011; consequently, the new legislation does not apply in 

this case. 

{¶10} Prior to this new legislation, the Supreme Court of Ohio determined 

that the sentencing statute requiring judicial fact-finding prior to imposing 

consecutive sentences infringed on a defendant’s Sixth Amendment right to a trial 

by jury. Foster, 2006-Ohio-856, at paragraph one of the syllabus. Following that 

decision, the United States Supreme Court determined that a state could require 

judicial findings of fact to impose consecutive rather than concurrent sentences 

without infringing on a defendant’s Sixth Amendment rights. Oregon v. Ice, 555 

U.S. 160, 129 S.Ct. 711 (2009). The Supreme Court of Ohio then determined in 

 

1 This Court notes that the Ohio Supreme Court has released a plurality opinion on the issue of whether a 

clear and convincing standard or an abuse of discretion standard is proper for reviewing felony sentences 

under R.C. 2953.08(G). State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Although this Court used our 

precedential clear and convincing standard, affirmed and adopted by Kalish’s three dissenting Justices, we 

would have concluded that Stone’s sentence was proper under the Kalish plurality’s two-step approach as 

well. 
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State v. Hodge that Foster remained valid after Ice and the judiciary was not 

required to make findings of fact prior to imposing maximum or consecutive 

sentences. 128 Ohio St.3d 1, 2010-Ohio-6320. However, the Supreme Court of 

Ohio determined the trial court was still required to consider the sentencing 

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. Foster at ¶ 

36-42. 

{¶11} Stone argues that since he waived his Sixth Amendment rights by 

pleading guilty, Foster does not apply and the trial court erred by failing to make 

findings of fact when it imposed a consecutive sentence. However, Stone does not 

cite any case law in support of his argument. In fact, this Court has previously 

applied Foster in cases where the defendant had entered a guilty plea. State v.

Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774; State v. Blackburn, 3d 

Dist. No. 5-09-18, 2009-Ohio-5902. Consequently, the trial court was not 

required to make findings of fact when it imposed a consecutive sentence in the 

present case. Furthermore, the trial court explicitly stated in its judgment entry 

that it had considered “the record, oral statements, any victim impact statement 

and pre-sentence report prepared, as well as the principles and purposes of 

sentencing under R.C. 2929.11, and the appropriate factors under R.C. 2929.12.” 

(Doc. No. 141). The trial court thus complied with the sentencing requirements 

according to Foster. 
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{¶12} Stone also argues the trial court erred by imposing a sentence that 

was greater than the minimum possible sentence and greater than the sentence the 

State recommended. Stone contends that he was remorseful for his offense and 

presented evidence that he is rehabilitated. As a result, Stone argues the trial court 

erred by imposing a consecutive sentence. We disagree. 

{¶13} At his sentencing hearing, Stone presented evidence that he had been 

abused as a child, had recently experienced some traumatic events at the time of 

his offense including the death of the grandmother who had helped raise him and a 

break up with his pregnant girlfriend, and was also addicted to drugs. (Aug. 9, 

2011 Tr. at 168-224). Stone also presented witnesses who testified that Stone’s 

actions in committing the offense were inconsistent with his character, that he was 

remorseful for what he had done, and had been rehabilitated while his case was 

pending. (Id.). However, we cannot find that the trial court erred in determining 

that, despite this evidence, the severity of Stone’s offense merited more than the 

minimum possible sentence. Before Stone entered his guilty plea, the State 

informed the trial court that: 

If this matter proceeded to trial the State would prove that on 

October 11th, 2010 in Marion County, Ohio, that the Defendant, in 

concert with his co-Defendant Vanessa Manley, they went over to 

the residence- the home of Lee McGary, Jr. located at 381 1⁄2 Pearl 
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Street- I’m sorry, Park Street in Marion, Ohio. They go over there 

with the purpose to rob him; to steal from him. They did by stealth 

and force enter into his home, and when they entered into his home 

again the purpose was to commit this theft offense. The Defendant 

took with him a large kitchen knife, and with that large kitchen knife 

he repeatedly stabbed the victim, Mr. McGary, and fatally wounded 

him causing his death. They stole approximately a hundred to $150 

in U.S. currency, the wallet, cell phone, pocket knife, and DVD’s 

from the victim, and then fled the scene. (June 3, 2011 Tr. at 157-

158). 

The autopsy report revealed that Stone stabbed Lee McGary (“McGary”) nine 

times, including two fatal wounds to his neck. (PSI at 3). Stone also provided 

details about the incident in an interview with a probation officer on June 13, 

2011. (Id. at 15- 17). Stone told the probation officer that the night before the 

offense, Manley and he planned to go to McGary’s house, stab him, steal his 

money, and purchase drugs. (Id. at 15). Stone stated that Manley originally 

wanted to murder a woman she knew was coming back to Marion from working in 

Columbus and would have money. (Id.). Stone told Manley he would not murder 

a woman, so Manley suggested McGary. (Id.). On the day of the offense, Manley 

knocked on McGary’s door. (Id.). When McGary opened the door, Manley 
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pushed it open and Stone ran into the house. (Id.). Stone stabbed McGary while 

Manley took McGary’s money, cell phone, and pocket knife. (Id. at 15). Stone 

and Manley left and cleaned up at Stone’s mother’s house where they discovered 

the wallet only contained $150. (Id.). Stone and Manley immediately used the 

money to purchase crack cocaine. (Id.). In light of the seriousness of Stone’s 

conduct, we cannot find that the trial court erred by imposing a sentence greater 

than the statutorily required minimum of 20 years to life imprisonment. 

{¶14} Stone further argues that the trial court erred in imposing the 

sentence because it is greater than the sentence the State recommended. This 

argument is without merit. Trial courts may reject plea agreements and are not 

bound by a recommended sentence. State v. Underwood, 124 Ohio St.3d 365, 

2010-Ohio-1, ¶ 28. “The decision to accept or reject a plea bargain rests solely 

within the discretion of the trial court.” State v. Jefferson, 5th Dist. No. 11 CAA 

04 0033, 2012-Ohio-148, ¶ 50, citing State v. Asberry, 173 Ohio App.3d 443, 

2007-Ohio-5436 (8th Dist.). Furthermore, the State informed Stone that the trial 

court was not bound by its recommendation, and the plea agreement included the 

potential sentences for each of the offenses. (Doc. No. 135). The plea agreement 

explicitly stated: 

[t]here is no commitment as to sentencing by the Court; however, 

the State will recommend the Defendant receive an indefinite term 
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of incarceration of 25 years to life on Count 2, a definite term of six 

(6) years as to Count 3, and a definite term of two (2) years as to 

Count 9, Count 2 and Count 3 to be served concurrently with one 

another, but consecutive to Count 9, for a total term of 27 years to 

life. (Id.). 

Stone thus knew at the time that he entered into the plea agreement that he could 

potentially receive any sentence within the statutory range, including a sentence 

greater than 27 years to life imprisonment. (Id.). We cannot find that the trial 

court erred in imposing a consecutive sentence resulting in a total of 30 years to 

life imprisonment for Stone’s aggravated murder, aggravated robbery, and 

burglary offenses given the gravity of these offenses. 

{¶15} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J., concurs. 

WILLAMOWSKI, J., concurs in Judgment Only. 

/jlr