State v. Reynolds , 2012 Ohio 583 ( 2012 )

[Cite as State v. Reynolds, 2012-Ohio-583.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96412
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDMOND REYNOLDS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-530504
BEFORE: Cooney, J., Stewart, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 16, 2012
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ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Erin Stone
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Edmond Reynolds (“Reynolds”), appeals his sentence
for violating probation and community control sanctions. Finding no merit to this
appeal, we affirm.
{¶2} In November 2009, Reynolds was indicted on one count of drug trafficking,
two counts of drug possession, and one count of theft. He pled guilty to one count of
drug possession and one count of theft. The remaining charges were nolled. His
six-month prison sentence was suspended, and he was placed on 18 months of probation.
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Reynolds was informed that if he violated probation, he could face a six-month prison
term.
{¶3} In addition, Reynolds was sentenced to 18 months of community control
sanctions on the drug possession conviction. The court ordered him to complete an
outpatient drug treatment program, 100 hours community service, random drug testing,
and fulfill case management and reporting requirements pursuant to probation and
community control sanctions. Reynolds was ordered to pay $80 in restitution, maintain
employment, and complete the “Thinking For a Change” program. The court explicitly
warned Reynolds during sentencing that if he violated community control sanctions, he
would receive 12 months in prison.
{¶4} Eleven months later, in January 2011, Reynolds was brought before the trial
court after violating community control sanctions. The court revoked his community
control sanctions and sentenced him to 12 months in prison. Reynolds now appeals,
raising one assignment of error in which he argues that his sentence is contrary to law and
an abuse of discretion. First, we note that his sentence is completed, and therefore his
appeal is moot.
{¶5} Nevertheless, we review felony sentences using the Kalish framework.
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Kalish court,
in a split decision, declared that in applying State v. Foster, 109 Ohio St.3d 1,
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2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a
two-step approach.” Kalish at ¶ 4.
{¶6} Appellate courts must first “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.” Id. at ¶ 4. If this first prong is
satisfied, then we review the trial court’s decision under an abuse-of-discretion standard.
Id. at ¶ 4, 19.
{¶7} In the first step of our analysis, we review whether the sentence is contrary
to law as required by R.C. 2953.08(G).
{¶8} As the Kalish court noted, post-Foster, “trial courts have full discretion to
impose a prison sentence within the statutory range and are no longer required to make
findings and give reasons for imposing maximum, consecutive or more than the minimum
sentence.” Id. at ¶ 11; Foster, paragraph seven of the syllabus; State v. Mathis, 109
Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. See also
State v. Redding, 8th Dist. No. 90864, 2008-Ohio-5739; State v. Ali, 8th Dist. No.
90301, 2008-Ohio-4449; State v. McCarroll, 8th Dist. No. 89280, 2007-Ohio-6322; State
v. Sharp, 8th Dist. No. 89295, 2007-Ohio-6324. The Kalish court declared that although
Foster eliminated mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 13. As a result, the
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trial court must still consider these statutes when imposing a sentence. Id., citing Mathis
at ¶ 38.
{¶9} R.C. 2929.11(A) provides that:
[A] court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing[,] * * * to protect the public from
future crime by the offender and others and to punish the offender. To
achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or both.
R.C. 2929.12 provides a nonexhaustive list of factors a trial court must consider when
determining the seriousness of the offense and the likelihood that the offender will
commit future offenses.
{¶10} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not
fact-finding statutes like R.C. 2929.14. Kalish at ¶ 17. Rather, they “serve as an
overarching guide for trial judges to consider in fashioning an appropriate sentence.” Id.Thus, “[i]n considering these statutes in light of Foster, the trial court has full discretion
to determine whether the sentence satisfies the overriding purposes of Ohio’s sentencing
structure.” Id.{¶11} In the instant case, we do not find Reynolds’s sentence contrary to law.
His 12-month sentence is within the permissible statutory range for a community control
violation in connection with his conviction for drug possession, a fifth degree felony.
His six-month sentence is within the permissible statutory range for a probation violation
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in connection with his conviction for theft, a first degree misdemeanor. The two
sentences were ordered to run concurrently. Thus, we find the sentence is not contrary
to law.
{¶12} Having satisfied the first step, we next consider whether the trial court
abused its discretion. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶
4, 19. “An abuse of discretion is ‘“more than an error of law or judgment; it implies that
the court’s attitude is unreasonable, arbitrary or unconscionable.”’” Id. at ¶ 19, quoting
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State
v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶13} Reynolds argues that the trial court abused its discretion by imposing a
12-month sentence in accordance with a blanket policy never to impose minimum
sentences, as opposed to considering only the particular facts and circumstances of his
case. However, after a thorough review of the record, we find that the trial court did not
abuse its discretion in imposing a 12-month prison sentence. The transcript indicates
that Reynolds was warned on more than one occasion that based on his recidivism, if he
violated community control sanctions, he would be sentenced to 12 months in prison. In
addition, the court heard from the probation officer who testified that Reynolds had not
reported since February 11, 2010. The probation officer also testified that Reynolds
failed to 1) complete the 100 hours of community service, 2) complete the “Thinking for
a Change” program, 3) submit to random drug testing, 4) pay the $80 in restitution, and 5)
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complete outpatient drug treatment. When asked if Reynolds had done “anything,” the
officer indicated that Reynolds had done “nothing.” Thus, it is clear that the trial court
imposed a sentence directly related to the specific facts and circumstances of this case and
not pursuant to a policy.
{¶14} Moreover, during both the original sentencing and the subsequent
imposition of sentence after the violations, the court allowed defense counsel the
opportunity to advocate for mitigation of any penalty. The court also allowed Reynolds
to address the court. Before imposing sentence, the court discussed Reynolds’s
extensive criminal history and his repeated violations of probation and community control
sanctions.
{¶15} Thus, we find nothing in the record to suggest that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. Accordingly, Reynolds’s sole
assignment of error is overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
MELODY J. STEWART, P.J., CONCURS;
MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY