[Cite as State v. Wise, 2017-Ohio-7502.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

DANNY LEE WISE, JR., 

 DEFENDANT-APPELLANT. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CASE NO. 16 BE 0003 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Belmont County, Ohio 

Case No. 15 CR 263 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee No brief filed 

For Defendant-Appellant Attorney John Jurco 

P.O. Box 783 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Hon. Carol Ann Robb 

 

 

 Dated: September 5, 2017 
[Cite as State v. Wise, 2017-Ohio-7502.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Danny Lee Wise, appeals from a Belmont County 

Common Pleas Court judgment convicting him of inducing panic, following his guilty 

plea, and the sentence that followed. 

{¶2} On November 4, 2015, during school hours, an unidentified male called 

the Bridgeport Elementary School and made a threat that there was a bomb in the 

building. The school was evacuated. No bomb was found. Police later arrested 

appellant for the crime. 

{¶3} On December 3, 2015, a Belmont County Grand Jury indicted appellant 

on one count of inducing panic, a second-degree felony in violation of R.C. 

2917.31(A)(1)(C)(5). When the public place involved in inducing panic is a school, 

the offense is a second-degree felony. Appellant initially entered a not guilty plea. 

{¶4} Appellant later changed his plea to guilty to the crime charged. In 

exchange for his plea, plaintiff-appellee, the State of Ohio, agreed to recommend a 

less-than-maximum sentence. The trial court conducted a change-of-plea colloquy 

with appellant where it advised him of the rights he was giving up and advised him 

that it was not bound to follow any sentencing recommendations. Appellant indicated 

that he understood these things. The court accepted appellant’s guilty plea, ordered 

a presentence investigation and a victim impact statement, and scheduled the matter 

for sentencing. 

{¶5} Subsequently, the trial court held a sentencing hearing. The court 

sentenced appellant to a maximum sentence of eight years in prison. Appellant filed 

a timely notice of appeal on February 23, 2016. 

{¶6} Appellant now raises a single assignment of error. 

{¶7} Appellant’s assignment of error states: 

 THE TRIAL COURT ERRED IN SENTENCING THE 

APPELLANT TO THE MAXIMUM SENTENCE. 

{¶8} Appellant argues the trial court should not have sentenced him to the 

maximum sentence. He claims this sentence is contrary to law. First, he asserts his 
- 2 - 

offense was non-violent, no physical harm was caused, no weapons were involved, 

and there was no actual victim. Second, he points out that he pleaded guilty, thereby 

saving the county the expense of a trial. Third, appellant notes that both the 

prosecutor and defense counsel recommended a less-than-maximum sentence. 

Fourth, appellant points out that he expressed his remorse. Fifth, he contends that 

the mitigating factors outweigh any aggravating factors. Sixth, he asserts he did not 

commit the worst form of the offense. Finally, appellant asserts the trial court held 

against him the fact that he was charged with six prior charges of domestic violence 

and one charge of violation of a protective order, yet these charges were all 

dismissed. 

{¶9} When reviewing a felony sentence, an appellate court must uphold the 

sentence unless the evidence clearly and convincingly does not support the trial 

court's findings under the applicable sentencing statutes or the sentence is otherwise 

contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 

1231, ¶ 1. 

{¶10} Appellant was convicted of a second-degree felony. The possible 

sentences for a second-degree felony are two, three, four, five, six, seven, or eight 

years. R.C. 2929.14(A)(2). Thus, appellant’s eight-year sentence was within the 

statutory range. 

{¶11} The trial court sentenced appellant to a maximum sentence for the 

second-degree felony. But although the General Assembly has reenacted the judicial 

fact-finding requirement for consecutive sentences, it has not revived the requirement 

for maximum sentences. State v. Riley, 7th Dist. No. 13 MA 180, 2015-Ohio-94, ¶ 34. 

Therefore, the trial court was not required to make any special findings before 

sentencing appellant to a maximum sentence. 

{¶12} A court is not bound to accept the state's recommended sentence as 

part of a negotiated plea agreement. State v. Dilling, 7th Dist. No. 12-CO-17, 2013-

Ohio-343, ¶ 30, citing State v. Crable, 7th Dist. No. 04-BE–17, 2004-Ohio-6812, ¶ 11. 

Therefore, a trial court does not err by imposing a greater sentence than that which 
- 3 - 

induced the defendant to plead guilty when the court cautions the defendant of the 

applicable penalties, including the possibility of imposing a greater sentence than that 

recommended by the state. Id. 

{¶13} In this case, at the change of plea hearing the court inquired of 

appellant if he understood what the maximum penalty could be and appellant stated 

that he did. (Plea Tr. 6). The court also asked appellant if he reviewed the plea 

agreement with counsel and if he understood all of the agreement’s terms and 

appellant stated that he did. (Plea Tr. 7). The plea agreement form states that the 

maximum prison term is eight years. The plea agreement form also provides that 

appellant and the state agree that a less-than-maximum prison term is appropriate. 

Importantly, the form also provides: “I, however, understand that this is merely a 

recommendation to the Court and is not binding upon the Court; the Judge may 

therefore choose to accept, reject or modify this recommendation.” Moreover, at the 

plea hearing the trial court asked appellant if he understood that any 

recommendation from the state and defense counsel as to sentencing was influential 

upon the court, but not binding upon the court. (Plea Tr. 8). Appellant stated that he 

understood. (Plea Tr. 8). 

{¶14} Thus, the trial court did not err in imposing a greater sentence than was 

recommended. 

{¶15} In sentencing a felony offender, the court must consider the overriding 

principles and purposes set out in R.C. 2929.11, which are to protect the public from 

future crime by the offender and others and to punish the offender. The trial court 

shall also consider various seriousness and recidivism factors as set out in R.C. 

2929.12(B)(C)(D)(E). 

{¶16} At the sentencing hearing, and again in the judgment entry of sentence, 

the trial court stated that it reviewed R.C. 2929.11 and R.C. 2929.12, including the 

principles and purposes of sentencing and the various statutory factors. (Sentencing 

Tr. 7). The court also indicated both at the hearing and in the judgment entry that it 

considered the presentence investigation report. (Sentencing Tr. 7). 
- 4 - 

{¶17} At the sentencing hearing, the trial court gave a detailed explanation for 

its maximum sentence. The court cited appellant’s extensive criminal history, which it 

stated included reckless operation, six counts of domestic violence, three counts of 

violation of a protection order, “boat docking requirements”, three counts of theft, 

misuse of credit cards, attempted theft, failure to comply, felony theft, felony receiving 

stolen property, receiving stolen property, drug paraphernalia, two counts of driving 

under suspension, failure to reinstate, failure to control, assured clear distance, and 

delivery of a Schedule III substance. (Sentencing Tr. 10). The court stated that 

appellant has continued to commit crimes, including felonies, for over a decade. 

(Sentencing Tr. 10). 

{¶18} The trial court also emphasized the harm appellant caused to the 

community. It noted that because of appellant’s actions, responding to the school 

were eight Belmont County Sheriff’s Deputies, the chief and an officer from the 

Bridgeport Police Department, a K-9 bomb unit from Wheeling, West Virginia, the 

Belmont County Emergency Management Agency, the Wolfhurst Fire Department, 

two fire engines, an ambulance, and a utility vehicle. (Sentencing Tr. 11-12). The 

court went on to describe how the parents of the school children and the community 

were terrified at the time. (Sentencing Tr. 12). 

{¶19} In its judgment entry, the trial court found several aggravating factors to 

apply. Appellant has a history of criminal convictions including delivery of a Schedule 

III substance, failure to keep an assured clear distance, failure to control a vehicle, 

driving under suspension, failure to reinstate, drug paraphernalia, theft, receiving 

stolen property, failure to comply, attempted theft, “boat docking requirements”, 

violation of protection order, and reckless operation. Appellant has not responded to 

previously imposed sanctions, appellant has an established pattern of criminal 

activity without good faith treatment or an effort to change his lifestyle. The 

population of Belmont County was endangered by appellant’s conduct. And 

appellant has previously been incarcerated. 

{¶20} Although the court did mention at the sentencing hearing six domestic 
- 5 - 

violence charges and one violation of a protection order charge that were dismissed, 

the court did not mention them in its judgment entry of sentence. Moreover, 

appellant still had an extensive criminal record, including felonies, without those 

charges. Thus, the fact that the court mentioned them at the sentencing hearing is 

not significant. The court was simply reciting what it had learned from the 

presentence investigation report. 

{¶21} Given the above, there is no indication that the trial court’s findings are 

unsupported or that appellant’s sentence is otherwise contrary to law. 

{¶22} Accordingly, appellant’s sole assignment of error is without merit and is 

overruled. 

{¶23} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

DeGenaro, J., concurs. 

Robb, P.J., concurs.