Lead Opinion
{¶ 2} The charges stemmed from an investigation by the Portage County Sheriffs Intelligence Unit ("SIU"), which employed Ken Dippel as a confidential *2 informant. Dippel had reported to agents of the SIU that he had received information from appellant's girlfriend Deanna Cross that appellant had been selling crack cocaine from his residence in Kent, Ohio. Based upon this information, agents of the SIU, through Dippel, arranged a series of three controlled drug buys over a four-day period between appellant and Deputy Palozzi, an SIU undercover narcotics agent. The events surrounding each controlled drug buy were secretly recorded by the SIU from a transmission via a wire worn either by Palozzi or Dippel. These transmissions were monitored and recorded by SIU officers involved in the investigation.
{¶ 3} On November 19, 2002, Palozzi made the first buy when he purchased .82 grams of crack cocaine from appellant for $100. This buy took place in the back seat of Palozzi's vehicle in a Wendy's restaurant parking lot across the street from Brimfield Elementary School. Palozzi made the second buy on November 20, 2002, when he purchased 2.98 grams of crack cocaine from appellant at his boarding house in Kent for $260. During this buy, appellant told Palozzi he cooks the crack in his microwave. The third buy, which occurred on November 22, 2002, was a "buy-bust" involving a purchase of 11.54 grams of crack cocaine from appellant in the parking lot of the Indian Valley apartment complex for $700. Following appellant's arrest on November 22, 2002, appellant signed a consent form for officers to search his room at the boarding house. The officers then conducted a consent search of his room. During that search they recovered separate containers of crack cocaine.
{¶ 4} On January 6, 2003, the Portage County Grand Jury returned a five-count indictment against appellant, charging him with trafficking in crack cocaine, including the statutory enhancement for selling within 1,000 feet of a school, a third-degree felony, in *3
violation of R.C.
{¶ 5} Appellant pleaded not guilty to the charges. On August 1, 2003, following a three day trial, the jury returned a guilty verdict on all five counts. On September 15, 2003, appellant was sentenced to twelve months on each of Counts One and Two and six years on each of Counts Three, Four, and Count Five, all terms to be served concurrently.
{¶ 6} Appellant appealed his conviction and sentence to this court inState v. Greitzer, 11th Dist. No. 2003-P-0110,
{¶ 7} Appellant's discretionary appeal was allowed by the Ohio Supreme Court in State v. Greitzer,
{¶ 8} The trial court resentenced appellant on August 8, 2006. During the sentencing hearing appellant requested that his original sentence be reduced to be in line with the sentences the court had imposed in various other drug cases between 2000 and 2006. Appellant testified and presented several witnesses who testified on his behalf. Prior to imposing sentence, the trial court stated on the record that it had considered the probation report, the testimony of appellant and his witnesses, and the comments of appellant's counsel and those of the prosecutor. Appellant was sentenced to nine months in prison on Count One without the statutory enhancement, twelve months in prison on Count Two, and six years in prison on each of Counts Three, Four, and Five, all terms to be served concurrently. This appeal follows.
{¶ 9} For his sole assignment of error, appellant asserts:
{¶ 10} "THE TRIAL COURT ERRED IN NOT ENGAGING IN ANY ANALYSIS AS TO DEFENDANT-APPELLANT'S SENTENCE IN THE FACE OF A CHALLENGE TO THE CONSISTENCY THEREOF."
{¶ 11} Appellant argues that because he challenged the consistency of his sentence, the trial court was required to articulate the reasons for its sentence. We do not agree.
{¶ 12} Appellant argues his sentence was inconsistent and therefore contrary to law. The pertinent standard of review is clear and convincing. R.C.
{¶ 13} "The court hearing an appeal * * * shall review the record * * *.
{¶ 14} "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand *5 the matter to the sentencing court for resentencing. * * * The appellate court may take any action authorized by this division if it clearly and convincingly finds * * * the following:
{¶ 15} "* * *
{¶ 16} "(b) That the sentence is otherwise contrary to law."
{¶ 17} The court in Foster severed only those sections of the appellate review statute, R.C.
{¶ 18} Appellant's argument can be broken down into two parts: first, he implicitly argues that his sentence was inconsistent because the court never mentioned it considered the general statutory sentencing guidelines in imposing its sentence. We do not agree.
{¶ 19} R.C.
{¶ 20} "A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this *6 section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders."
{¶ 21} The Court in Foster held: "Two statutory sections apply as a general judicial guide for every sentencing. The first, R.C.
{¶ 22} In State v. Mathis,
{¶ 23} "Although after Foster the trial court is no longer compelled to make findings and give reasons at the sentencing hearing because R.C.
{¶ 24} We have held that sentencing consistency is not derived from the trial court's comparison of the current case to other sentences given to similar offenders for similar offenses. State v. Spellman,
{¶ 25} Appellant concedes that under controlling case law, consistency is not derived from a numerical comparison to the sentences imposed on similar offenders for similar offenses, but rather from the court's consideration of the purposes and principles of felony sentencing in R.C.
{¶ 26} In the case sub judice, the trial court did not state on the record that it had considered the guidelines and factors in R.C.
{¶ 27} The Supreme Court in Adams held: "A silent record raises the presumption that a trial court considered the factors contained in R.C.
{¶ 28} This court adopted the Adams rule in State v. Rattay (Nov. 18, 1988), 11th Dist. No. 13-048,
{¶ 29} Prior to the Supreme Court's holding in Foster, supra, and post-Foster, Ohio Appellate Districts have repeatedly followed the Supreme Court's holding in *8 Adams. In State v. Slone, 2d Dist. Nos. 2005 CA 79, 2006 CA 75,
{¶ 30} The Third Appellate District also adopted the Supreme Court's holding in Adams in State v. Jackson, 3d Dist. No. 1-06-26,
{¶ 31} In Jackson, the trial court had made the following comments during the sentencing hearing which the Third District found pertinent: "The court would make a part of its reasons the details for the instant offense, which is made a part in court's exhibit `AA' the PS — presentence investigation and also the court was and did preside over the instant trial and heard the evidence in this particular instance." Id. at ¶ 5.
{¶ 32} During the sentencing hearing in Jackson, the trial court had allowed Jackson to speak in mitigation, and stated it had considered the record, oral statements, the victim impact statement, and the presentence report. The Third District held that "[w]hile the trial court did not specifically mention the statutory factors [under R.C.
{¶ 33} In State v. Firouzmandi, 5th Dist. No. 2006-CA-41,
{¶ 34} The Seventh Appellate District also adopted the rule inAdams in State v. Poindexter, 7th Dist. No. 05 MA 45,
{¶ 35} Finally, in State v. Muhammad, 8th Dist. No. 88834,
{¶ 36} From our review of the record, it is clear that the trial court considered the purposes and principles of felony sentencing and the seriousness and recidivism factors in the sentencing statutes in imposing appellant's sentence. The trial court had presided over appellant's trial and had heard the evidence in the case. The court stated at the sentencing hearing that it had considered the presentence report, the statements of appellant and his witnesses, and the comments of appellant's attorney and the prosecutor. Finally, the court's sentence was within the statutory range for the offenses for which appellant stood convicted. While the trial court did not specifically mention the statutory sentencing factors, we hold that appellant did not meet his burden to rebut the presumption that the trial court considered the sentencing criteria in imposing appellant's sentence. *10
{¶ 37} While appellant concedes that consistency in sentencing is not derived from a numerical comparison to the sentences of similar offenders for similar offenses, he argues that in imposing appellant's sentence, the trial court should have considered the sentences it imposed on other offenders. While we have held that consistency in sentencing is not derived from such a numerical comparison,Spellman, supra, we note that the other cases discussed by appellant did not present similar offenders or similar offenses. Initially, we note that none of the other offenders went to trial, but rather each of them pleaded guilty. They thus admitted their guilt, unlike appellant, in face of the overwhelming evidence presented against him.
{¶ 38} Further, because appellant went to trial, the trial court was made aware of the extent of appellant's criminal conduct, unlike the other defendants. Here, appellant packaged crack cocaine for sale and used this criminal activity as his sole source of income to support his drug addiction and criminal lifestyle, while abandoning his wife and children. There is nothing in the record to suggest any of the other defendants had the same level of involvement in narcotics trafficking.
{¶ 39} Next, we note that out of the ten defendants mentioned by appellant, only one of them was convicted for a second-degree felony. All the others pleaded guilty to lesser-degree felonies. However, that one defendant pleaded guilty to only one offense, while appellant was found guilty of five drug-related felonies, including three second-degree felonies. Further, there is no evidence that defendant's crimes were factually similar to those of appellant. In short, there is no evidence any of the other defendants was a similar offender or that their offenses were similar. *11
{¶ 40} We next turn to appellant's second argument, namely, that because he challenged the consistency of his sentence, he was entitled to an explanation by the trial court concerning the reasons for the court's sentence.
{¶ 41} The Supreme Court in Foster, supra, held: "Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at paragraph seven of the syllabus.
{¶ 42} In State v. Green, 11th Dist. Nos. 2005-A-0069 and 2005-A-0070,
{¶ 43} Appellant's challenge on the ground of consistency did not give rise to a duty on the part of the trial court to set forth the reasons for its sentence. Appellant has not cited any authority in support of this argument. In fact, as noted supra, appellant concedes that Ohio courts require no "stated analysis concerning the dictates of 2929.11 * * *." In any event, such argument conflicts with Foster, supra, in which the Supreme Court held that trial courts have full discretion to impose sentences within the statutory range and are no longer required to make findings or set forth the reasons for their sentences. We therefore hold that the trial court was under no obligation to articulate the reasons for its sentence. *12
{¶ 44} For the reasons stated in the Opinion of this court, the assignment of error is not well-taken. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O'TOOLE, J., dissents with Dissenting Opinion.
Dissenting Opinion
{¶ 45} I respectfully believe the majority misstates the standard of review in this case, post-Foster. I agree the sentencing review statute, R.C.
{¶ 46} I disagree that, pursuant to R.C.
{¶ 47} R.C.
{¶ 48} I respectfully note this court seems to have changed its standard of review for sentencing appeals involving R.C.
{¶ 49} Case law establishes that trial courts are not required to make any specific finding pursuant to R.C.
{¶ 50} I believe the record contains clear and convincing evidence that Mr. Greitzer is unlikely to commit future crimes: i.e., "genuine remorse." R.C.
{¶ 51} Mr. Greitzer was arrested, convicted, and sentenced for multiple drug trafficking offenses. The record indicates he allowed cocaine addiction virtually to destroy his life, and that of his family. While the charges for which he was eventually sentenced were pending, he was repeatedly arrested for further drug offenses. At his trial, he used lunch breaks to take cocaine. At the time of his original sentencing, in September 2003, Mr. Greitzer was out of control. The trial court could easily have imposed a more lengthy term of imprisonment than the six years it meted out.
{¶ 52} The transcript and other evidence from the resentencing hearing, held in August 2006, indicate a remarkable change. Mr. Greitzer thanked the trial court for sentencing him to prison, admitting that imprisonment saved him from killing himself with drugs. Mr. Greizer's father testified he had refused to visit his son for almost a year following his imprisonment, due to his disgust with his son's conduct. His father found him a changed man.
{¶ 53} Mr. Greitzer's former wife testified she cooperated with the authorities investigating him for drug trafficking. She testified to her fear of him, and that of their three children, when he was a drug addict. She had refused to testify on his behalf at trial. At the resentencing hearing, she spoke of the remarkable change her ex-husband's imprisonment had wrought in him, his faithful contact with their children during his imprisonment, and her desire to have him free to be a full time father again.
{¶ 54} Mr. Greitzer's institutional summary report from prison was introduced into evidence at the resentencing hearing. It indicated he was a model inmate, with only one minor infraction in almost three years imprisonment. *16
{¶ 55} I would hold there is clear and convincing evidence in the record the trial court erred in applying the recidivism factor set forth at R.C.
{¶ 56} Consequently, I respectfully dissent. *1