State of Ohio v. Christina Tammerine
Court of Appeals No. L-13-1081
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
February 7, 2014
2014-Ohio-425
Trial Court No. CR0201301242
Decided: February 7, 2014
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Juliа R. Bates, Lucas County Prosecuting Attorney, and Lindsay D. Navarre and Evy M. Jarrett, Assistant Prosecuting Attorneys, for appellee.
Patricia Horner, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, which found aрpellant guilty of one count of robbery, in violation of
{¶ 2} Appellant, Christina Tammerine, sets forth the following single assignmеnt of error:
I. THE TRIAL COURT’S SENTENCE WAS AN ABUSE OF DISCRETION.
{¶ 3} The following undisputed facts are relevant to this appeal. On December 22, 2012, appellant was on duty working the closing shift at the Kentucky Fried Chicken restaurant on Alexis Road in Sylvania, Ohio. At 9:00 p.m., the store manager closed the restaurant for the day, locked all exterior entry doors, and then went into his office.
{¶ 4} At this time, in collusion with a former co-worker no longer employed at the restaurаnt, appellant unlocked one of the exterior restaurant entry doors. Pursuant to a scheme previously arranged between appellant and Travis Welch, the co-defendant and former co-worker, appellant was aware that upon unlocking the entry door from the inside for Welch, he would then enter the restaurant, forcibly rob the manager, and share the proceeds from the rоbbery with appellant in exchange for her surreptitious participation in the crime.
{¶ 5} The events successfully transpired according to the plan. Appellant covertly unlocked the door after the manager was no longer in sight, Welch then entered the
{¶ 6} In accordance with the plan, Welch subsequently shared some of the proceeds of the robbery with appellant. In the timeframe immediately following the crime, appellant continued her ruse and portrayed herself to others as a fellow victim in the robbery. Appellant falsely conveyed to the viсtim’s mother how she too had been assaulted and intimidated during the robbery. Appellant’s actual active role in the execution of the robbery was subsequently discovered.
{¶ 7} On March 21, 2013, appellant plеd guilty to one count of robbery, in violation of
{¶ 8} On April 4, 2013, appellant was sentenced to a term of incarceration of five years and was also given a three-year term of mandatory post release control. This appeal ensued.
{¶ 9} In the sole assignment of error, appellant contends that the non-maximum trial court sentence imposed in this case was an abuse of discretion. At the оutset, we would note that this court has adhered over recent years in its review of felony sentences to the two-step analysis delineated in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Pursuant to Kalish, this court first determined whether the disputed sentence was сlearly and convincingly contrary to law. If this first prong was met, we then reviewed the record to determine whether the sentence constituted an abuse of discretion. State v. Bratton, 6th Dist. Nos. Lucas L-12-1219, L-12-1220, 2013-Ohio-3293, ¶ 10.
{¶ 10} Given recent legislаtive action in Ohio, culminating in the passage of a new statute directly addressing appellate court felony sentence review and a growing body of recent appellate cases applying the new statutory parameters, we are no longer utilizing the former Kalish approach.
{¶ 11} Specifically, on March 22, 2013,
(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section
2929.13 (B) or (D), division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶ 12} We note that in the wake of the passage of H.B. 86 and the subsequent enactment of the sentencing review statutory scheme delineated in
{¶ 13} As concisely summarized recently by the First District Court of Appeals in State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 9 (1st Dist.),
We presume that the legislature knew what it was doing when it reenacted the
R.C. 2953.08(G)(2) standard of review. And we cannot justify applying an abuse of discretion standard where the legislature has explicitly told us that the standard of review is not an abuse of discretion. Thus, henceforth, we will apply the statutory standard rather than the Kalish plurality framework to our review of felony sentences.
The post-Foster era ended with enactment of H.B. 86 and the revival of statutory findings necessary for imposing consecutive sentences under
R.C. 2929.14(C)(4) . By reviving the requirement for findings as a predicate for imposing consecutives, the ground offered by Kalish for rejecting the standard of review set forth in formerR.C. 2953.08 – that it could not stand as a standard of review for a statute that imprоperly required findings of fact before imposing consecutive sentences – was nullified. With the basis for the decision in Kalish no longer valid, and given that Kalish had questionable precedential value in any event, we see no viable reasoning for continuing to apply the standard of review used in that case. Henceforth, we review consecutive sentences using the standard of review set forth inR.C. 2953.08 .
{¶ 15} We further note that while we find that Kalish is no longer controlling in our review of felony sеntences, it may still be utilized in the course of determining whether a sentence is clearly and convincingly contrary to law. As held in White at ¶ 12, “Although Kalish no longer provides the framework for reviewing felony sentences, it does provide * * * guidance for determining whether a sentence is clearly and convincingly contrary to law.” Significantly, Kalish determined that a sentence was not
{¶ 16} Based upon all of the foregoing, we now likewise apply the statutory standard of review rather than the former Kalish approach to our review of felony sentences. However, we may still utilize Kalish in the course of determining whether a sentence is clearly and convincingly contrary to law. Accordingly, we now will consider the propriety of the disputed sentence in this case pursuant to the new
{¶ 17} First, we note that the permissible statutоry sentencing range for a felony of the second degree such as the conviction underlying this case is between two and eight years.
{¶ 18} Next, in connection to consideration of any statutory findings potentially relevant to оur review of this case, the record reveals that none of the
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{¶ 21} Lastly,
{¶ 22} The judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
James D. Jensen, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.