State v. Lister, 2014 Ohio 1405

In the early morning of Jan. 20, 2013, homeowners’ video showed two hooded persons taking a flat-screen TV, computer monitor, a silver case, and an air compressor from the basement/garage area. The suspects fled in a vehicle; some property was later recovered in an alley.
Travin M. Lister was arrested; he told detectives he had permission from the homeowner’s son to take the TV and monitor and that he took the compressor to inflate a tire. The son denied giving permission.
Lister was indicted on one count of burglary (R.C. 2911.12(A)(2), second-degree felony) and one count of theft (R.C. 2913.02(A)(1), fifth-degree felony). A jury convicted him on both counts; the trial court merged theft into burglary.
At sentencing the trial court imposed the statutory maximum for a second-degree felony: eight years’ imprisonment, noting the hour of the offense, the victim/defendant relationship, Lister’s active probation in two counties, and his prior criminal history.
Lister appealed, arguing the record did not support imposing the maximum sentence because there was no physical injury, no weapon, and the property was recovered. The State defended the sentence as complying with R.C. 2929.11 and 2929.12.
The Fourth District reviewed the sentence under the statutory appellate standard (R.C. 2953.08(G)(2)) and affirmed, finding the court considered the required sentencing statutes and the sentence was within the statutory range and not clearly and convincingly contrary to law.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lister)	Held
Whether the trial court erred by imposing the statutory maximum (8 years) for second-degree burglary	The trial court properly considered R.C. 2929.11 and 2929.12; the sentence is within the statutory range and supported by defendant’s criminal history and probationary status	Maximum is excessive and unsupported because no serious physical harm, no weapon, and property was recovered; record doesn’t show "worst form" of the offense	Affirmed: under R.C. 2953.08(G)(2) the appellate court cannot overturn unless record clearly and convincingly fails to support statutory considerations or sentence is contrary to law; trial court considered required factors and stayed within statutory range, so sentence is not clearly and convincingly contrary to law

State v. Kalish, 896 N.E.2d 124 (Ohio 2008) (discussing appellate review framework for felony sentencing and utility as guidance despite subsequent statutory changes)