State v. Smith ( 2012 )

[Cite as State v. Smith, 2012-Ohio-338.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
GRAYSON E. SMITH
Defendant-Appellant
JUDGES:
Hon. Patricia A. Delaney, P.J.
Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
Case No. 11-COA-030
OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Common
Pleas Court, Case No. 11-CRI-031
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 27, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS DAVID R. STIMPERT
Ashland County Prosecutor David R. Stimpert, Attorney at Law, LLC
110 Cottage Street 10 East Main Street
Ashland, Ohio 44805 Ashland, Ohio 44805
PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, Ohio 44805
Hoffman, J.
(¶1) Defendant-appellant Grayson E. Smith appeals his sentence entered by
the Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
(¶2) On May 2, 2011, Appellant entered a negotiated plea in the Ashland
County Court of Common Pleas to one count of burglary, in violation of R.C.
2911.12(A)(3), a felony of the third degree; one count of breaking and entering, in
violation of R.C. 2911.13(A), a felony of the fifth degree; and one count of theft, in
violation of R.C. 2913.02(A)(1), a felony of the fifth degree.
(¶3) The trial court accepted Appellant’s plea, and further found Appellant
guilty of the charges. The trial court scheduled a sentencing hearing for July 11, 2011.
(¶4) Via Sentencing Entry of, July 13, 2011, the trial court sentenced Appellant.
On Count I, burglary, the trial court sentenced Appellant to three years supervision with
the Department of Rehabilitation and Corrections, plus $1000 fine; as to Count II,
breaking and entering, the trial court imposed six months supervision with the
Department of Rehabilitation and Corrections, to be served consecutive to the sentence
on the first count, plus a $500 fine; and on Count III, theft, six months supervision to be
served consecutive to the other counts, plus a $500 fine, and court costs.
(¶5) Appellant now appeals, assigning as error:
(¶6) “THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,
IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT/APPELLANT
PURSUANT TO OHIO REVISED CODE SECTION 2929.14(E); SAID CONSECUTIVE
SENTENCES WERE CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR
AN ABUSE OF THE TRIAL COURT’S DISCRETION.”
(¶7) The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912 set forth a two step process for examining felony sentences. 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. If this first step “is satisfied,” the second step requires the
trial court's decision be “reviewed under an abuse-of-discretion standard.” Id.(¶8) The relevant sentencing law is now controlled by the Ohio Supreme
Court's decision in State v. Foster, i.e. “ * * * 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.” 109 Ohio St.3d 1, 30, 2006–Ohio–856 at ¶ 100, 845 N.E.2d 470, 498.
(¶9) The record herein reflects Appellant was sentenced to three years
supervision on the third degree felony burglary charge, six months supervision on the
fifth degree felony breaking and entering charge, and six months supervision on the fifth
degree felony theft charge. Accordingly, the sentences are within the statutory
guidelines and parameters for felony sentencing.
(¶10) The record further reflects the trial court considered the purposes and
principles of sentencing and the seriousness and recidivism factors as required in
Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised Appellant
regarding post release control. Therefore, the sentences are not clearly and
convincingly contrary to law.
(¶11) At the sentencing hearing, the trial court stated on the record:
(¶12) “The Court has considered the statutory factors set forth in Section
2929.12 of the Revised Code, as well as the factors set forth in 2929.13 of the Revised
Code as it relates to F-4 and F-5 offenses, and after weighing the seriousness and
recidivism factors, I am finding that prison is consistent with the purposes and principles
of the Sentencing Statutes. I am further finding that you are not amenable to available
control sanctions. And I want to note that the charges arising out of the Elyria Municipal
Court are almost a carbon copy of the charges that you are now facing in this Court. So
it’s obvious that a Community Control Sanction as issued in Elyria did not refrain you
from conducting yourself in this situation, in the same manner in which you previously
conducted yourself.
(¶13) “And you were still on probation at that time and I note in the PSI, it points
out that, in fact, you were not complying with the terms of your probation. In fact it
states that the offender was on supervision out of Elyria Municipal Court at the time of
the instant offense, and he never responded or complied with the probation terms.
(¶14) “The Court makes a further finding that apparently since you decided to
continue to engage in this activity, that consecutive terms are appropriate and are
necessary to protect the public to stop this type of activity, and I am finding that you
have the future ability to be employed and pay financial sanctions in this matter.”
(¶15) Tr. at 6-7.
(¶16) Having determined the sentence is not contrary to law we must now
review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.
Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave
careful and substantial deliberation to the relevant statutory considerations.
(¶17) The Supreme Court of Ohio held in State v. Hodge, 128 Ohio St.3d 1,
2010–Ohio–6320, “For all the foregoing reasons, we hold that the decision of the United
States Supreme Court in Oregon v. Ice [ (2009), 555 U.S. 160, 129 S.Ct. 711, 172
L.Ed.2d 517], does not revive Ohio's former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in
State v. Foster. Because the statutory provisions are not revived, trial court judges are
not obligated to engage in judicial fact-finding prior to imposing consecutive sentences
unless the General Assembly enacts new legislation requiring that findings be made.”
See, State v. Fry, Delaware App. No. 10CAA090068, 2011–Ohio–2022 at ¶ 16–17.
(¶18) Based upon the above, we find the trial court did not abuse its discretion in
imposing consecutive sentences. Appellant’s sole assignment of error is overruled
(¶19) Appellant's sentence entered by the Ashland County Court of Common
Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
GRAYSON E. SMITH :
:
Defendant-Appellant : Case No. 11-COA-030
For the reasons stated in our accompanying Opinion, Appellant's sentence
entered by the Ashland County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN