State v. FosterState v. Foster
Rendered on September 11, 2012
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Law Office of Thomas F. Hayes, LLC, and Thomas F. Hayes, for appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Andrew K. Foster (“appellant“), appeals from a judgment entry of conviction entered in the Franklin County Court of Common Pleas following a guilty plea. Appellant pled guilty to one count of possessing criminal tools, a felony of the fifth degree, and was sentenced to a maximum period of 12 months of incarceration. Because the sentence was not contrary to law, and because the trial court did not abuse its discretion, we affirm.
{¶ 2} On September 21, 2011, appellant was indicted by the grand jury on one count of breaking and entering and one count of possessing criminal tools. On December 5, 2011, appellant entered a plea of guilty to the offense of possessing criminal tools. A nolle prosequi was entered for the breaking and entering count. The facts
{¶ 3} At a sentencing hearing on December 29, 2011, the trial court imposed a maximum sentence of 12 months of incarceration. Appellant was awarded 110 days of jail-time credit. The trial court noted that appellant had recently been granted judicial release from prison on a case originating in Licking County, Ohio. The trial court further ordered the sentence to be run concurrently with any time appellant may receive out of cases and/or events arising in Licking County, Ohio and Perry County, Ohio. No fines or costs were imposed.
{¶ 4} Appellant now files a timely appeal in which he asserts a single assignment of error for our review:
The trial court abused its discretion when it imposed a maximum sentence for a felony of the fifth degree.
{¶ 5} Appellant contends the imposition of a maximum sentence of 12 months of incarceration for a non-violent property crime violates
{¶ 6} Appellant argues that prior to the commission of the instant offense, he was gainfully employed and had been struggling with addiction problems throughout much of his life. Appellant also notes that during his period of local incarceration, he had been
{¶ 7} The State of Ohio (“the State“), on the other hand, argues that the correct standard to be applied here is not an abuse of discretion, but rather, the clear and convincing standard set forth in
{¶ 8} We believe it is significant to note that appellant did not raise any argument challenging the imposition of a maximum sentence at the sentencing hearing in the trial court. As a result, we may reverse appellant‘s sentence only if the sentence imposed rises to the level of plain error. Under
{¶ 9} In State v. Allen, 10th Dist. No. 10AP-487, 2011-Ohio-1757, ¶ 19-21, we recently discussed the standard of review applicable to felony sentencing issues as follows:
In State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19, this court held that, pursuant to
R.C. 2953.08(G) , we review whether clear and convincing evidence establishes that a felony sentence is contrary to law. A sentence is contrary to law when the trial court failed to apply the appropriate statutory guidelines. Burton at ¶ 19.After Burton, however, in a plurality opinion, the Supreme Court of Ohio established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. The first step is to “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.” Kalish at ¶ 4. The second step requires that the trial court‘s decision also be reviewed under an abuse of discretion standard. Id. An abuse of discretion connotes more than an error of law or judgment; it entails a decision that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
As a plurality opinion, Kalish has limited precedential value. State v. Franklin, 182 Ohio App.3d 410, 2009-Ohio-2664, ¶ 8. Additionally, since Kalish, this court has continued to rely on Burton and only applied the contrary-to-law standard of review. Franklin at ¶ 8, citing State v. Burkes, 10th Dist. No. 08AP-830, 2009-Ohio-2276; State v. O‘Keefe, 10th Dist. No. 08AP-724, 2009-Ohio-1563; State v. Hayes, 10th Dist. No. 08AP-233, 2009-Ohio-1100.
Id. See also State v. Pankey, 10th Dist. No. 11AP-378, 2011-Ohio-6461, ¶ 18; and State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-666, ¶ 83.
{¶ 10} Pursuant to Ohio‘s sentencing laws, a sentencing court is required to consider the principles and purposes of felony sentencing as set forth in
{¶ 11} A court sentencing an offender for a felony must be guided by the overriding purposes of felony sentencing.
{¶ 12} Besides being reasonably calculated to achieve the two overriding purposes of felony sentencing as set forth above, a sentence imposed for a felony must also be “commensurate with and not demeaning to the seriousness of the offender‘s conduct and
{¶ 13} In addition, the sentencing court must consider the seriousness and recidivism factors set forth in
{¶ 14} In the instant case, appellant has not argued that his sentence is contrary to law. In fact, appellant has expressly acknowledged that he is not making such an argument. We further note that his sentence falls within the applicable range of sentences for felonies of the fifth degree. See Pankey at ¶ 23 (the term of imprisonment fell within the statutory range established under
The court has considered the purposes and principles of sentencing set forth in
R.C. 2929.11 and the factors set forth inR.C. 2929.12 . In addition, the Court has weighed the factors as set forth in the applicable provisions ofR.C. 2929.13 andR.C. 2929.14 . The Court further finds that a prison term is not mandatory pursuant toR.C. 2929.13(F) .
(R. 34 at 1.)
{¶ 15} This court has previously held that such language in a judgment entry refutes an offender‘s claim that the trial court failed to consider the purposes and principles of sentencing as set forth in
{¶ 16} Considering all of this, we believe appellant‘s argument fails under our commonly applied standard of review (clearly and convincingly contrary to law). However, even if we analyze this assignment of error under the two-step procedure set
{¶ 17} Appellant‘s contention that the trial court abused its discretion in imposing a maximum sentence is not persuasive. Based upon comments made by the trial judge during the sentencing hearing, it is apparent that the trial court had reviewed appellant‘s PSI, which revealed a criminal history. Specifically, the trial court noted that appellant had recently been released from prison on judicial release on a case originating from Licking County. The trial court was also aware of the fact that appellant was on probation in Perry County and that Licking County and/or the adult parole authority had placed a holder on appellant. Although the trial court was aware appellant had asserted he was suffering from addiction and that he had been employed prior to the commission of the offense, the trial court also noted that, given appellant‘s behavior of committing crimes while he was “on paper” and on judicial release, the court did not have “any reason to feel any optimism on [appellant‘s] rehabilitation at all.” (Tr. 14.)
{¶ 18} Upon review, we find appellant has failed to demonstrate (or even argue) that the sentence imposed was contrary to law. Moreover, even assuming, as argued by appellant, that this court is required to apply the second step of the Kalish analysis, appellant has failed to demonstrate that the trial court abused its discretion in imposing a maximum sentence of 12 months. Accordingly, appellant‘s sole assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and SADLER, JJ., concur.