State v. White , 2013 Ohio 4225 ( 2013 )

[Cite as State v. White, 2013-Ohio-4225.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130114
TRIAL NO. B-1205509
Plaintiff-Appellee, :
O P I N I O N.
vs. :
KENDALL WHITE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 27, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Kendall White was convicted of felonious assault and sentenced to six years
in prison. He argues on appeal that his sentence should be reversed because it was
excessive and constituted an abuse of the trial court’s discretion. We disagree both
about the standard of review and about the ultimate issue. The appropriate standard to
review a felony sentence is the one set forth by the legislature in R.C. 2953.08(G)(2): in
this case, whether “we clearly and convincing find[] * * * that the sentence is * * *
contrary to law.” We do not so find, and, therefore, affirm the judgment of the trial
court.
I.
{¶2} Kendall White approached Brandy Moore at a McDonald’s restaurant and
demanded a ride. When Ms. Moore refused, Mr. White punched her in the face. The
punch broke her nose, fractured the bone of her left eye socket and caused bumps under
her eyelid. She underwent surgery to repair her nose, but she still has difficulty
breathing and may need another surgery.
{¶3} Mr. White pleaded guilty to a charge of felonious assault, a second-degree
felony. Several weeks later, the trial court held a sentencing hearing. In mitigation, Mr.
White and his attorney emphasized his history of psychological problems. The trial
court engaged in a lengthy discussion with Mr. White, during which it noted Mr. White’s
long criminal history dating back over 30 years, including numerous violent offenses. At
the conclusion of the hearing, the trial court imposed a prison sentence of six years. This
appeal followed.
{¶4} Although Mr. White acknowledges that his sentence is within the statutory
range, he argues that the trial court abused its discretion by failing to properly consider
mitigating factors indicating that he showed genuine remorse, took full responsibility for
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OHIO FIRST DISTRICT COURT OF APPEALS
his conduct by entering a plea, did not possess a weapon during the assault, and
acknowledged a need to address his underlying mental health issues.
II.
{¶5} We disagree with Mr. White’s assertion that we should review his sentence
for an abuse of discretion. The legislature has been explicit that “[t]he appellate court’s
standard for review [of a felony sentence] is not whether the sentencing court abused
its discretion.” R.C. 2953.08(G)(2). Rather, the standard is the one set forth by
statute:
The court hearing an appeal [of a felony sentence] shall review
the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court’s standard for review is not whether the sentencing
court abused its discretion. The appellate court may take any action
authorized by this division if it clearly and convincingly finds either of
the following:
(a) That the record does not support the sentencing court’s
findings * * *;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2).
{¶6} True, we have in the past applied the abuse of discretion standard urged by
Mr. White. That standard was provided for by a plurality of the Supreme Court of Ohio
in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Kalish
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OHIO FIRST DISTRICT COURT OF APPEALS
approach asks (1) whether the sentence is clearly and convincingly contrary to law, i.e.
whether the trial court adhered to the applicable rules and statutes in imposing the
sentence, and (2) if it is not contrary to law, whether the sentence nevertheless
constitutes an abuse of discretion. Id. at ¶ 26. The Kalish plurality opinion was an
outgrowth of the Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470, which declared unconstitutional portions of Ohio’s felony
sentencing statutes that required judges to make certain findings before imposing
maximum, consecutive, or more than the minimum sentences. The Kalish plurality is
best understood as operating from the premise that because the findings requirements
were unconstitutional and excised from the law, it also made sense to remove the
standard of review that the legislature had crafted in conjunction with the findings
requirements.
{¶7} Subsequent to Kalish, however, the United States Supreme Court made
clear that it was constitutionally permissible to require judicial fact-finding as a
prerequisite for the imposition of consecutive sentences. See Oregon v. Ice, 555 U.S.
160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The Ohio Supreme Court subsequently
acknowledged that the legislature could reenact consecutive sentence finding
requirements, State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶
36, and the legislature responded by enacting 2011 Am.Sub.H.B. No. 86 (“H.B. 86”).
The new legislation, effective September 30, 2011, revived the judicial fact-finding
requirement for consecutive sentences, but did not revive the requirement for maximum
and more than minimum sentences.
{¶8} Prior to the enactment of H.B. 86, the portions of Ohio’s sentencing laws
found unconstitutional in Foster remained part of the Revised Code. H.B. 86 cleaned up
the Code by removing the provisions found unconstitutional in Foster, but not reenacted
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OHIO FIRST DISTRICT COURT OF APPEALS
in H.B. 86. 2011 Am.Sub.H.B. No. 86, Section 2. Thus, the provisions requiring findings
for maximum and more than minimum sentences that the legislature did not intend to
revive were explicitly repealed. Id. At the same time, H.B. 86 specifically reenacted the
standard of review provisions of R.C. 2953.08(G)(2) that had been rejected by the Kalish
plurality. 2011 Am.Sub.H.B. No. 86, Section 1.
{¶9} We presume 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.
{¶10} Our decision today is consistent with the approach of the other Ohio
appellate districts that have directly considered the issue since the enactment of H.B. 86.
See State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 10 (“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 former R.C.
2953.08—that it could not stand as a standard of review for a statute that improperly
required findings of fact before imposing consecutive sentences—was nullified.”);
State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525 (concluding that the
statutory standard applies to all felony sentences, not just those where findings are
required); State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-
3315, ¶ 6 (“[F]rom this day forward, rather than continue to apply the two-step approach
as provided by Kalish, we find” that the standard in R.C. 2953.08(G)(2) applies to all
felony sentences); State v. Worth, 10th Dist. Franklin No. 10AP-1125, 2012-Ohio-666, ¶
83 (applying statutory test and noting that, as a plurality opinion, Kalish is of limited
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OHIO FIRST DISTRICT COURT OF APPEALS
precedential value); State v. Blair-Walker, 11th Dist. Portage No. 2012-P-0125, 2013-
Ohio-4118 (“[W]e no longer apply the two-step analysis contained in the 2008 Kalish
case to defendants sentenced under H.B. 86’s enactment. Rather, we apply R.C.
2953.08(G) and the clear and convincing standard”); see also State v. Fletcher, 3rd Dist.
Auglaize No. 2-13-02, 2013-Ohio-3076 (continuing to apply R.C. 2953.08 after Kalish).
III.
{¶11} Having settled upon the appropriate standard of review, we now apply
the standard to Mr. White. Under R.C. 2953.08(G)(2), we may only modify or vacate
Mr. White’s sentence if we “clearly and convincingly find” that either (1) the record does
not support the mandatory sentencing findings, or (2) that the sentence is “otherwise
contrary to law.” In this case, no findings were made and Mr. White does not argue that
any were required, so our review is simply whether we clearly and convincingly find that
the sentence is otherwise contrary to law.
{¶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.” State v. Lee, 12th Dist. Butler No. CA2012-09-182,
2013-Ohio-3404, ¶ 10, quoting A.H. at ¶ 10. In Kalish, the plurality found that a
sentence was not clearly and convincingly contrary to law where the trial court had
considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the
seriousness and recidivism factors contained in R.C. 2929.12, properly applied
postrelease control and imposed a sentence within the statutory range. See Kalish, 120
Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 18; see also A.H. at ¶ 10.
{¶13} Here, Mr. White’s six-year sentence fit comfortably within the
permissible range for a second-degree felony. Further, the record indicates that the
trial court properly considered the applicable sentencing provisions before imposing the
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OHIO FIRST DISTRICT COURT OF APPEALS
sentence. In sentencing Mr. White, the court stressed his violent history and the fact
that despite numerous stints in prison he continued to “hurt people.” It noted that
he was likely to continue to commit crimes and that a prison term was necessary to
protect the public. The court deliberated upon a sentence to a community-based
correctional facility, but determined that he needed a more severe sanction. The
court also considered the serious physical harm done to the victim. The trial court
heard Mr. White speak about the progress he made after receiving medication for his
mental health conditions and noted his apparent remorse. The court properly
weighed these mitigating factors against his lengthy history of violent conduct in
determining the appropriate sentence.
{¶14} We do not find that Mr. White’s sentence was clearly and
convincingly contrary to law. The sole assignment of error is overruled, and the
judgment of the trial court is affirmed.
H ENDON , P.J., and C UNNINGHAM , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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