STATE OF OHIO, Plaintiff-Appellee, - vs - MARLOWE M. JOHNSON, II, Defendant-Appellant.
CASE NO. CA2012-10-210
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
6/3/2013
2013-Ohio-2275
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-03-0402
Brandabur & Bowling Co., L.P.A., Jeffrey W. Bowling, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Marlowe M. Johnson, II, appeals from his sentence in the Butler County Court of Common Pleas following his guilty plea to one count of nonsupport of dependents in violation of
{¶ 2} On March 21, 2012, the Butler County Grand Jury indicted Johnson on one count of nonsupport of dependents in violation of
{¶ 3} The trial court held a sentencing hearing and sentenced Johnson to serve a prison term of six months. Johnson appeals raising one assignment of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCEDS [SIC] APPELLANT TO A TERM OF IMPRISONMENT WITH THE DEPARTMENT OF REHABILITTION [SIC] AND [C]ORRECTION.
{¶ 6} In his sole assignment of error, Johnson argues the trial court abused its discretion in sentencing him to a term of six months of imprisonment rather than placing him on community control. Johnson asserts the trial court failed to comply with
{¶ 7} Appellate review of felony sentences is controlled by a two-step test outlined by the Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. First, the appellate court 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.” State v. Wiggins, 12th Dist. No. CA2009-09-119, 2010-Ohio-5959, ¶ 7, citing Kalish at ¶ 4. If this first prong is satisfied, then the sentencing court‘s
{¶ 8} In applying the first prong of the test outlined in Kalish, a sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of
(a) Except as otherwise provided in division (G)(1)(b) of this section, the court in imposing sentence on the offender shall first consider placing the offender on one or more community control sanctions * * * with an emphasis under the sanctions on intervention for nonsupport, obtaining or maintaining employment, or another related condition.
However, the preference for community control found in section (G)(1)(a) does not apply if:
(i) The court determines that the imposition of a prison term on the offender is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code.
(ii) The offender previously was convicted of or pleaded guilty to a violation of this section that was a felony, and the offender was sentenced to a prison term for that violation.
(iii) The offender previously was convicted of or pleaded guilty to a violation of this section that was a felony, the offender was sentenced to one or more community control sanctions of a type described in division (G)(1)(a) of this section for that violation, and the offender failed to comply with the conditions of any of those community control sanctions.
{¶ 9} Johnson concedes the trial court sentenced him within the statutory range. However, he argues that the trial court erred in imposing a six-month term of imprisonment as it failed to determine, pursuant to
{¶ 10} Contrary to Johnson‘s assertions, the judgment entry of conviction clearly indicates and specifically states that the trial court considered “the principles and purposes of sentencing under Ohio Revised Code 2929.11” and further found “that the defendant is not amenable to an available community control sanction.” Although the trial court did not specifically state these same findings during the sentencing hearing, the trial court is not required to do so. A court speaks only through its entries, and it is clear from the judgment entry of conviction that the trial court properly considered
{¶ 12} As to the second prong of Kalish, the record demonstrates that the trial court considered Johnson‘s prior criminal record, the fact that he owed over $14,000 in child support, the impact his failure to support had on his child, and that on at least two prior occasions he had failed to appear before the court on this case. Moreover, the court found Johnson‘s excuse for his failure to appear in this case was unbelievable in light of his extensive contact with the judicial system. Finally, the court noted that in a prior case, in another jurisdiction, Johnson was placed on felony community control; he later absconded from supervision which resulted in a revocation of community control and thereafter he was sentenced to a term of imprisonment. After a review of the record, we find no abuse of discretion.
{¶ 13} Johnson‘s sole assignment of error is overruled.
{¶ 14} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.