State v. Foster ( 2012 )

[Cite as State v. Foster, 2012-Ohio-4199.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 11CA0114-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RYAN S. FOSTER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 11-CR-0297
DECISION AND JOURNAL ENTRY
Dated: September 17, 2012
CARR, Judge.
{¶1} Appellant, Ryan Foster, appeals the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} This case arises out an incident on June 1, 2011, where Ryan Foster entered an
apartment and brutally attacked Michael Davis. On June 8, 2011, the Medina County Grand Jury
indicted Foster on numerous charges stemming from the incident. Christine Dettweiller was also
indicted in relation to the incident. After initially pleading not guilty to all of the charges at
arraignment, Foster subsequently entered a plea of guilty to attempted murder, aggravated
burglary, and tampering with evidence. The trial court sentenced Foster to a ten-year prison term
for attempted murder, a three-year prison term for aggravated burglary, and a three-year prison
term for tampering with evidence. The prison terms for attempted murder and tampering with
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evidence were ordered to run concurrently with each other but consecutively to the prison term
for aggravated robbery, for a total prison sentence of 13 years.
{¶3} Foster has timely appealed and raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
MAXIMUM SENTENCES, IN VIOLATION OF THE SENTENCING
STATUTES, AS REQUIRED UNDER STATE V. FOSTER OR UNDER
HOUSE BILL 86.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT TO
A THIRTEEN YEAR PRISON TERM UNDER SECTION 2929.11 OF THE
OHIO REVISED CODE, FOR THE CONVICTION OF ATTEMPTED
MURDER, AGGRAVATED BURGLARY AND TAMPERING WITH
EVIDENCE, WHEN THE CO-DEFENDANT RECEIVED A LESSER
SENTENCE FOR SIMILAR CONDUCT AND SIMILAR CRIMES, AS WELL
AS MORE SERIOUS CRIMES.
{¶4} In his first assignment of error, Foster raises several challenges to the trial court’s
decision to impose maximum, consecutive sentences. In his second assignment of error, Foster
argues that his total sentence was disproportionate to the sentence imposed on Christine
Dettweiller, who accompanied Foster to the apartment on the day of the incident. This Court
disagrees.
{¶5} The Ohio Supreme Court held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-
856, paragraph seven of the syllabus, that “[t]rial 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.” Trial
courts must still consider the statutes applicable to felony cases, including R.C. 2929.11,
regarding the purposes of sentencing, and R.C. 2929.12, delineating factors relating to the
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seriousness of the offense and the offender’s likelihood of recidivism. State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, ¶ 38.
{¶6} After Foster, the Ohio Supreme Court, in a plurality opinion, developed a two-
step analysis for reviewing sentences. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. The
Kalish court held:
First, [appellate courts] 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. If this first prong is
satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion
standard.
Id. at ¶ 4.
{¶7} The trial court indicated in its judgment entry that it considered the factors set
forth in R.C. 2929.11 and R.C. 2929.12 prior to imposing sentence. At the beginning of the
hearing, the trial court allowed ample time for defense counsel, Foster, the victim, and the State
to make statements on the record. While Foster argues in his brief that the trial court did not
make findings in support of its decision to impose maximum, consecutive sentences, the
Supreme Court of Ohio has held that it is not required to do so. Foster, 109 Ohio St.3d at
paragraph seven of the syllabus. Foster pleaded guilty to attempted murder and aggravated
burglary, both felonies of the first degree, as well as tampering with evidence, a felony of the
third degree. The sentences imposed by the trial court on each respective count fell within the
statutory ranges set forth in R.C. 2929.14(A)(1), which governs felonies of the first degree, and
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R.C. 2929.14(A)(3)(b), which governs with felonies of the third degree. Thus, Foster cannot
prevail on his claim that his sentences were clearly and convincingly contrary to law.1
{¶8} We further note that the Supreme Court has held that, “[t]rial courts have full
discretion to impose a prison sentence within the statutory range and are no longer required to
make findings or even give their reasons for imposing maximum, consecutive, or more than
minimum sentences.” State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, ¶ 11, quoting Foster
at paragraph seven of the syllabus. “At the sentencing hearing, the court, before imposing
sentence, shall consider the record, any information presented at the hearing by any person
pursuant to division (A) of this section, and, if one was prepared, the presentence investigation
report * * *.” State v. Bennett, 9th Dist. No. 26241, 2012-Ohio-3664, ¶ 23, quoting R.C.
2929.19(B)(1). At the close of Foster’s plea hearing, the trial court indicated that it set the matter
for presentence investigation. At the beginning of the sentencing hearing, the trial judge stated
on the record that he had read the presentence investigation report. However, while it is apparent
from the transcript of the sentencing hearing that a presentence investigation report was prepared
1
We note that the language in the trial court’s sentencing entry varied from what was stated at
the sentencing hearing in regard to which sentence would run consecutively to the prison
sentence for attempted murder. Foster was given a three-year prison term for both aggravated
burglary and tampering with evidence. The sentencing entry indicated that it was the aggravated
burglary prison term, instead of the tampering with evidence prison term, that was ordered to run
consecutively to the attempted murder sentence, while the tampering sentence was ordered to run
concurrently. It is well-settled that “a trial court speaks only through its journal entries.” State v.
Leason, 9th Dist. No. 25566, 2011-Ohio-6591, ¶ 8. Here, the terms of Foster’s sentence were set
forth in the judgment entry issued by the trial court on November 17, 2011. See State v. Carlisle,
131 Ohio St.3d 127, 2011-Ohio-6553, ¶ 11. Moreover, in this particular case, the prison
sentence imposed by the trial court with respect to each offense mirrored what was stated on the
record at the sentencing hearing. The total length of the prison sentence in the sentencing entry
also mirrored what was stated on the record at the sentencing hearing. Thus, to the extent that
the trial court erred by transposing the offenses at the sentencing hearing, the error was harmless.
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in this case, it does not appear in the record before this Court. If a presentence investigation
report is prepared, “there is a presumption that the trial court utilized it in imposing sentence.”
Bennett at ¶ 24, citing State v. Cox, 9th Dist. No. 19773, 2000 WL 372317 (Apr. 12, 2000).
Moreover, this Court has repeatedly held that “it is the duty of the appellant to ensure that the
record on appeal is complete.” State v. Unik, 9th Dist. No. 11CA009996, 2012-Ohio-307, ¶ 7,
quoting State v. Daniels, 9th Dist. No. 08CA009488, 2009-Ohio-1712, ¶ 22. Without the
presentence investigation report, this Court is unable to properly review the trial court’s
sentencing decision, so we must presume the validity of the trial court proceedings. Bennett at ¶
24, citing Cuyahoga Falls v. James, 9th Dist. No. 21119, 2003-Ohio-531, ¶ 9.
{¶9} It follows that Foster’s first and second assignments of error are overruled.
III.
{¶10} Foster’s two assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
PAUL M. GRANT, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and WILLIAM L. HANEK, Assistant Prosecuting
Attorney, for Appellee.