[Cite as State v. Toney, 2011-Ohio-2464.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 10 MA 20 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

HERMAN TONEY ) 

aka ROCKY COLLINS ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 09 CR 1083 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. Stephen M. Maszczak 

3722 Starrs Centre Drive, Suite B 

Canfield, Ohio 44406 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: May 18, 2011
[Cite as State v. Toney, 2011-Ohio-2464.]

WAITE, P.J. 

{1} Appellant Herman A. Toney, aka Herman A. Tony, aka Rocky Collins, is 

appealing his 14-month prison sentence following his guilty plea for felony theft and 

felony obstruction of justice. The maximum possible prison term for the two crimes 

was thirty months. The prosecutor recommended a 12-month prison term, and 

Appellant believes the trial court committed reversible error when it did not accept the 

prosecutor’s recommendation and did not explain why the recommendation was not 

followed. The trial court has the discretion to disregard a prosecutor’s recommended 

sentence, and no abuse of discretion is indicated in the record of this case. The 

judgment of the trial court is affirmed. 

{2} Appellant was indicted on October 8, 2009, on one count of theft, R.C. 

2913.02(A)(3), a fourth degree felony; one count of tampering with evidence, R.C. 

2921.12(A)(1), a third degree felony; and one count of identity fraud, R.C. 

2913.49(B)(1), also a third degree felony. On November 17, 2009, Appellant entered 

into a written Crim.R. 11 plea agreement. He pleaded guilty to a fourth-degree felony 

count of theft and one count of obstructing justice, R.C. 2921.32(A)(6), a fifth-degree 

felony. The remaining charges in the indictment were dropped, and the prosecutor 

agreed to recommend a 12-month prison term. After a plea hearing, the guilty plea 

was accepted and sentencing was scheduled for January 12, 2010. At sentencing, 

the court noted that Appellant had used eighteen different aliases during his criminal 

career, he had a lengthy criminal record, and that the victim was an elderly woman. 

(Tr., pp. 9-10.) The prosecutor repeated its 12-month prison term recommendation, 

but the court decided to impose fourteen months for the theft charge and twelve 
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months for obstruction of justice, to be served concurrently. This timely appeal 

followed. 

ASSIGNMENT OF ERROR

{3} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED 

CONTRARY TO LAW IN IMPOSING A TOTAL SENTENCE OF FOURTEEN 

MONTHS WHERE THE STATE RECOMMENDED A 12 MONTH SENTENCE, THE 

DEFENDANT AGREED TO SUCH A SENTENCE IN THE RULE 11 AGREEMENT, 

AND THE RECORD DOES NOT JUSTIFY THE IMPOSITION OF SUCH A LONGER 

SENTENCE.” 

{4} Appellant contends that the trial court abused its discretion when it 

failed to impose the sentence recommended by the prosecutor and failed to explain 

why it did not follow the recommendation. 

{5} Based on the felony sentencing review statute, R.C. 2953.08(G)(2), the 

Ohio Supreme Court has held that the appellate courts must use a two-prong 

approach when dealing with sentencing issues: “First, they must examine the 

sentencing court's compliance with all applicable rules and statutes in imposing the 

sentence to determine whether the sentence is clearly and convincingly contrary to 

law. If this first prong is satisfied, the trial court's decision shall be reviewed under an 

abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 

896 N.E.2d 124, ¶4 (O’Connor, J., plurality opinion), citing State v. Foster, 109 Ohio 

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. 
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{6} The analysis of whether a sentence is clearly and convincingly contrary 

to law hinges on a trial court’s “compliance with all applicable rules and statutes” in 

imposing the sentence. Kalish, at ¶26. For example, a trial court’s sentence does 

not demonstrate compliance if it falls outside of the permissible statutory range, 

contravenes a statute, or is decided pursuant to an unconstitutional statute. See 

State v. McGowan, 7th Dist. No. 09 JE 24, 2010-Ohio-1309, at ¶66. In examining “all 

applicable rules and statutes,” the sentencing court must consider R.C. 2929.11 and 

R.C. 2929.12. State v. Gray, 7th Dist. No. 07 MA 156, 2008-Ohio-6591, at ¶8, citing 

Kalish ¶13-14 (O'Connor, J., plurality opinion). Typically, a trial court is expected to 

at least make a “rote recitation” that it considered these two statutes, but even a 

silent record raises a rebuttable presumption that the sentencing court considered all 

the proper criteria. State v. Merriweather, 7th Dist. No. 09 MA 160, 2010-Ohio-2279, 

¶8; State v. Ballard, 7th Dist. No. 08 CO 13, 2009-Ohio-5472, ¶71; State v. James, 

7th Dist. No. 07 CO 47, 2009-Ohio-4392, ¶50. 

{7} If this inquiry is satisfied, an appellate court then reviews the trial court's 

sentencing decision for an abuse of discretion. Kalish at ¶17, 19-20. An abuse of 

discretion means more than an error of judgment; it implies that the court's attitude is 

unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 

151, 157, 16 O.O.3d 169, 404 N.E.2d 144. Thus, in the felony sentencing context, 

“[a]n abuse of discretion can be found if the sentencing court unreasonably or 

arbitrarily weighs the factors in R.C. 2929.11 and R.C. 2929.12.” State v. Heverly, 

7th Dist. No. 09 CO 4, 2010-Ohio-1005, ¶34. Although the trial court formerly was 
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required to engage in detailed judicial factfinding in order to justify imposing 

maximum or consecutive sentences, this is no longer the case. Foster, supra, 

paragraph seven of the syllabus. The decision to impose maximum or consecutive 

sentences is simply part of the trial court's overall discretion in issuing a felony 

sentence and is no longer tied to mandatory factfinding provisions. Id. Foster also 

held that the section of the felony sentencing review statute, R.C. 2953.08(G), 

requiring review of the trial court’s mandatory findings of fact at sentencing, was no 

longer applicable. Id. at ¶99. 

{8} Appellant does not cite to any relevant fact or law to indicate that his 

sentence is clearly and convincingly contrary to law. Appellant’s sole allegation is 

that the trial court abused its discretion by imposing a slightly longer prison term than 

recommended by the prosecutor. Although a prosecutor may agree to recommend a 

specific prison term as part of a Crim.R. 11 plea agreement, the resulting plea 

agreement is not a bargain requiring a specific punishment to be meted out; the 

actual punishment is left to the discretion of the sentencing judge. State v. Brown, 

7th Dist. No. 08 MA 13, 2009-Ohio-1172, ¶17; State v. Mathews (1982), 8 Ohio 

App.3d 145, 146, 456 N.E.2d 539. A trial court is free to impose any lawful sentence, 

and may impose a greater sentence than that recommended by the prosecutor. 

State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶13. 

Courts may deviate from the prosecutor’s recommendation in sentencing even when 

the recommended sentence induces the defendant to plead guilty to an offense. 

State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-6806, ¶8, citing Buchanan. 
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Normally, a court should explain why it imposes a sentence greater than that 

recommended by the prosecutor, unless it is otherwise clear from the record. Akron 

v. Ragsdale (1978), 61 Ohio App.2d 107, 109, 399 N.E.2d 119; State v. Gant, 7th 

Dist. No. 04 MA 252, 2006-Ohio-1469. There are exceptions, though, to the general 

rule. As stated in Ragsdale: “In some cases, however, the facts themselves speak 

so eloquently that no statement by the judge is required.” Id. at 109, 399 N.E.2d 119. 

{9} The record reflects a number of reasons why the court imposed a 14-

month prison sentence in this case. The court pointed out that Appellant had used 

eighteen different aliases during his criminal career, and identity fraud was one of the 

crimes charged in the original indictment. The court noted Appellant’s lengthy 

criminal record, and specifically mentioned that the victim was an elderly woman. 

The trial court explained to Appellant what the maximum penalties for the charges as 

pleaded were during the plea hearing, and specifically told him that “[s]entencing is 

always up to the Judge. It is not up to you, your lawyer, or the prosecutor.” 

(11/16/09 Tr., p. 7). A defendant who is advised by the court of the maximum 

sentence that he may receive has knowledge that the court is not bound by the 

state's agreement to recommend a lesser sentence. State v. Darmour (1987), 38 

Ohio App.3d 160, 160-161, 529 N.E.2d 208. 

{10} It is also clear from the record that Appellant’s plea bargain 

substantially reduced the potential penalty in this case by reducing the number of 

charges against him as well as the severity of the charges. Appellant was originally 

charged with three felony crimes that carried a combined potential prison term of 
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eleven and one-half years. The subsequent plea bargain resulted in convictions for 

one fourth-degree felony and one fifth-degree felony, with a potential prison term of 

two and one-half years. A sentencing court can consider charges that have been 

dismissed or reduced pursuant to a plea agreement. State v. Starkey, 7th Dist. No. 

06MA110, 2007-Ohio-6702, ¶2; State v. Cooey (1989), 46 Ohio St.3d 20, 35, 544 

N.E.2d 895; State v. Burton (1977), 52 Ohio St.2d 21, 23, 368 N.E.2d 297. 

{11} Even if the record had been completely silent as to the reasons that the 

trial court imposed a 14-month sentence, the court’s sentencing decision would be 

presumed to be correct. Kalish, supra, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124, ¶18, fn. 4. Here, the record is not silent, and there is no indication any 

abuse of discretion exists in imposing a sentence that is two months longer than the 

sentence recommended by the prosecutor. Appellant’s sole assignment of error is 

overruled and the judgment of the trial court is affirmed. 

Vukovich, J., concurs. 

DeGenaro, J., concurs.