State v. Slack ( 2012 )

[Cite as State v. Slack, 2012-Ohio-2081.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 11 COA 040OKEY B. SLACK, II
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 11 CRI 089
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 9, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS TIMOTHY E. POTTS
PROSECUTING ATTORNEY GOOD & POTTS, LLC
PAUL T. LANGE 10 East Main Street
ASSISTANT PROSECUTOR Ashland, Ohio 44805
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 11 COA 040 2
Wise, J.
{¶1} Defendant-appellant Okey B. Slack, II, appeals his sentence and
conviction on one count of burglary entered in the Ashland County Court of Common
Pleas.
{¶2} Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On the night of August 9, 2011, Kyle Dalkert, a victim in this case, awoke
to discover that someone had stolen his dog. The dog had been leashed in his backyard
and was now missing. Several neighborhood kids located the dog at a nearby house
where Appellant Okey B. Slack, II, and his co-defendant Michael Hudkins were hanging
out. Appellant and Hudkins refused to return the dog to Dalkert and instead asked the
kids to tell Dalkert to come down to the house.
{¶4} When Dalkert did not show, Appellant and Hudkins went to Dalkert's
home. When Dalkert came to the door, the two of them forced their way into the home
and attacked Dalkert and his girlfriend. While Hudkins attacked Dalkert, Appellant
choked his girlfriend, while repeatedly threatening her.
{¶5} Appellant then switched his attention to Dalkert, striking him repeatedly
and biting him on his shoulder. After assaulting Dalkert, Appellant kicked Dalkert's
girlfriend in the chest while she lay on the ground.
{¶6} As a result of the attack, Dalkert suffered a ruptured blood vessel in his
eye, along with various bruises, scratches, and the bite mark.
{¶7} Pursuant to a negotiated plea agreement, the State filed a Bill of
Information charging Appellant with one count of Burglary, a felony of the third degree.
Ashland County, Case No. 11 COA 040 3
{¶8} On August 25, 2011, Appellant waived his right to a preliminary hearing on
this charge and waived his right to be prosecuted by Indictment.
{¶9} On that same date, Appellant pled guilty to the burglary charge.
{¶10} On September 28, 2011, the trial court sentenced Appellant to five years
in prison.
{¶11} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶12} “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,
IMPOSED A MAXIMUM SENTENCE UPON DEFENDANT/APPELLANT PURSUANT
TO OHIO REVISED CODE SECTION 2929.14(A)(3); SAID MAXIMUM SENTENCE
WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF
SAID COURT'S DISCRETION.
{¶13} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS
OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE
AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED
CODE SECTION 2929.13(A).”
I.
{¶14} In his first Assignment of Error, Appellant argues that the trial court
abused its discretion in imposing a maximum sentence. We disagree.
{¶15} In the case sub judice, Appellant was convicted of Burglary, a felony of the
third degree.
{¶16} In a plurality opinion, the Supreme Court of Ohio established a two-step
procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-
Ashland County, Case No. 11 COA 040 4
Ohio-4912, 896 N.E.2d 124. 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.{¶17} As a plurality opinion, Kalish is of limited precedential value. See Kraly v.
Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case
as “of questionable precedential value inasmuch as it was a plurality opinion which
failed to receive the requisite support of four justices of this court in order to constitute
controlling law”). See, State v. Franklin (2009), 182 Ohio App.3d 410, 912 N.E.2d 1197,
2009-Ohio-2664 at ¶ 8. “Whether Kalish actually clarifies the issue is open to debate.
The opinion carries no syllabus and only three justices concurred in the decision. A
fourth concurred in judgment only and three justices dissented.” State v. Ross, 4th Dist.
No. 08CA872, 2009-Ohio-877, at FN 2; State v. Welch, Washington App. No. 08CA29,
2009-Ohio-2655 at ¶ 6.
{¶18} Nevertheless, until the Supreme Court of Ohio provides further guidance
on the issue, we will continue to apply Kalish to appeals involving felony sentencing.
State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264 at n.
2; State v. Ringler, Ashland App. No. 09–COA–008, 2009–Ohio–6280 at ¶ 20.
{¶19} In the first step of our analysis, we review whether the sentence is
contrary to law. In the case at bar, Appellant was sentenced on a felony of the third
degree. Upon conviction for a felony of the third degree, the potential sentence that the
trial court can impose is one, two, three, four or five years. R.C. §29.14(A)(3).
Ashland County, Case No. 11 COA 040 5
{¶20} Here, the trial court sentenced Appellant to five years.
{¶21} Upon review, we find that the trial court's sentencing on the charge
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Furthermore, the record reflects that 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 sentence is
not clearly and convincingly contrary to law.
{¶22} Having determined that 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.
{¶23} In Kalish, the court discussed the affect of the Foster decision on felony
sentencing. The court stated that, in Foster, the Ohio Supreme Court severed the
judicial fact-finding portions of R.C. §2929.14, holding that “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.” Kalish at ¶ 1 and 11, citing Foster at ¶ 100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.
Firouzmandi, Licking App. No. 2006–CA–41, 2006-Ohio-5823.
{¶24} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶
Ashland County, Case No. 11 COA 040 6
13, see also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v.
Firouzmandi, supra at ¶ 29.
{¶25} Thus, post- Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v.
Delong, 4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post- Foster, trial
courts are still required to consider the general guidance factors in their sentencing
decisions.
{¶26} There is no requirement in R.C. §2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and
recidivism or even discussed them. State v. Polick (1995), 101 Ohio App.3d 428, 431;
State v. Gant, Mahoning App. No. 04 MA 252, 2006–Ohio–1469, at ¶ 60 (nothing in
R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial
court to set forth its findings), citing State v. Cyrus (1992), 63 Ohio St.3d 164, 166; State
v. Hughes, Wood App. No. WD–05–024, 2005–Ohio–6405, at ¶ 10 (trial court was not
required to address each R.C. 2929.12 factor individually and make a finding as to
whether it was applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–
Ohio–1342 at ¶ 19 (“... R.C. 2929.12 does not require specific language or specific
findings on the record in order to show that the trial court considered the applicable
seriousness and recidivism factors”). (Citations omitted).
{¶27} Where the record lacks sufficient data to justify the sentence, the court
may well abuse its discretion by imposing that sentence without a suitable explanation.
Ashland County, Case No. 11 COA 040 7
Where the record adequately justifies the sentence imposed, the court need not recite
its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545.
{¶28} In other words, an appellate court may review the record to determine
whether the trial court failed to consider the appropriate sentencing factors. State v.
Firouzmandi, 5th Dist No. 2006–CA41, 2006–Ohio–5823 at ¶ 52.
{¶29} Accordingly, appellate courts can find an “abuse of discretion” where the
record establishes that a trial judge refused or failed to consider statutory sentencing
factors. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342.
{¶30} An “abuse of discretion” has also been found where a sentence is greatly
excessive under traditional concepts of justice or is manifestly disproportionate to the
crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. The
imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis
is subject to review. Woosley, supra at 143–145. Where the severity of the sentence
shocks the judicial conscience or greatly exceeds penalties usually exacted for similar
offenses or defendants, and the record fails to justify and the trial court fails to explain
the imposition of the sentence, the appellate court's can reverse the sentence. Woosley,
supra at 147. This by no means is an exhaustive or exclusive list of the circumstances
under which an appellate court may find that the trial court abused its discretion in the
imposition of sentence in a particular case. State v. Firouzmandi, supra.
{¶31} In the case at bar, the trial court had the benefit of a pre-sentence
investigation report. We also note that we do not know the specific contents of the pre-
sentence investigation report or victim impact statement as Appellant did not make them
Ashland County, Case No. 11 COA 040 8
a part of the record. See State v. Untied (March 5, 1998), Muskingum App. No. CT97–
0018.
{¶32} Upon review of the record, we find no evidence the judge acted
unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on
impermissible factors, failing to consider pertinent factors, or giving an unreasonable
amount of weight to any pertinent factor. We find nothing in the record of Appellant's
case to suggest that his sentence was based on an arbitrary distinction that would
violate the Due Process Clause of the Fifth Amendment.
{¶33} Appellant’s first Assignment of Error is overruled.
II.
{¶34} In his second Assignment of Error, Appellant argues that the five-year
sentence imposed in this matter creates an unnecessary burden on the State’s
resources. We disagree.
{¶35} Specifically, Appellant argues that essentially the trial court erred by not
complying with the new sentencing law, House Bill 86, which came into effect on
September 30, 2011, two days after Appellant was sentenced. Appellant urges this
court to consider the purposes of the new sentencing reforms in determining whether
his sentence is an unnecessary burden on state and local government resources.
Appellant submits that under the new mandate a court must use the minimum sanctions
to accomplish the purposes and principles of sentencing without imposing an
unnecessary burden on state or local government resources, as set forth in R.C.
2929.11, as amended by 2011 Am.Sub.H.B. No. 86.
Ashland County, Case No. 11 COA 040 9
{¶36} In State v. Ober, Second Dist No. 97CA0019, 1997 WL 624811 (Oct. 10,
1997), the Second District considered this same issue. In rejecting the argument, the
court stated “Ober is correct that the ‘sentence shall not impose an unnecessary burden
on state or local government resources.’ R.C. 2929.19(A). According to criminal law
experts, this resource principle ‘impacts on the application of the presumptions also
contained in this section and upon the exercise of discretion.’ Griffin & Katz, Ohio
Felony Sentencing Law (1996–97), 62. Courts may consider whether a criminal
sanction would unduly burden resources when deciding whether a second-degree
felony offender has overcome the presumption in favor of imprisonment because the
resource principle is consistent with the overriding purposes and principles of felony
sentencing set forth in R.C.2929.11. Id.”
{¶37} The Ober court concluded, “[a]lthough resource burdens may be a
relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate
resource conservation above the seriousness and recidivism factors. Imposing a
community control sanction on Ober may have saved state and local government funds;
however, this factor alone would not usually overcome the presumption in favor of
imprisonment.” Id.{¶38} Several other appellate courts, including our own, considering these
issues have reached the same conclusion. See, e.g ., State v. Hyland, Butler App. No.
CA2005–05–103, 2006–Ohio–339, 2006 WL 215052, ¶ 32; State v. Brooks, 10th Dist.
No. 97APA–11–1543, 1998 WL 514111 (Aug. 18, 1998); State v. Stewart, 8th Dist. No.
74691, 1999 WL 126940 (Mar. 4, 1999); State v. Fox, 3rd Dist. No. 16–2000–17, 2001
WL 218433 (Mar. 6, 2001); State v. Miller, 5th Dist. No. 04–COA–003, 2004–Ohio–
Ashland County, Case No. 11 COA 040 10
4636, 2004 WL 1945548. We agree with the reasoning of the Ober court and other
courts considering this issue and find no merit to Appellant's argument.
{¶39} Further, R.C. §2929.13(A), in effect at the time of Appellant's sentencing
provided, “[t]he sentence shall not impose an unnecessary burden on state or local
government resources.” However, “[t]he 2011 amendments to the sentencing statutes,
which became effective September 30, 2011, have deleted this sentence.” State v.
Saur, 10th Dist. No. 10AP-1195, 2011-Ohio-6662, 2011 WL 6826861, fn. 1. Thus, the
amended version of the sentencing statute does not require the sentencing court to
consider the conservation principle set forth in former R.C. §2929.13(A). Id.
{¶40} Based on the foregoing, we find Appellant’s second Assignment of Error
not well-taken and overrule same.
{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas,
Ashland County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0410
Ashland County, Case No. 11 COA 040 11
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
OKEY B. SLACK, II :
:
Defendant-Appellant : Case No. 11 COA 040For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of common Pleas of Ashland County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________
___________________________________
___________________________________
JUDGES