State v. Thompson , 2011 Ohio 1315 ( 2011 )

[Cite as State v. Thompson, 2011-Ohio-1315.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case Nos. 10CA017
GREGORY THOMPSON : 10CA018
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case Nos. 10CR017 and 10CR051
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 18, 2010
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
F. CHRISTOPHER OEHL MATTHEW PETIT
164 East Jackson Street 116 Cleveland Avenue, North
Millersburg, OH 44654 Suite 808
Canton, OH 44702
Holmes County, Case Nos. 10CA017 and 10CA018 2
Farmer, J.
{¶1} On June 10, 2010, appellant, Gregory Thompson, pled guilty to one count
of theft in the fifth degree in violation of R.C. 2913.02, two counts of breaking and
entering in the fifth degree in violation of R.C. 2911.13, and one count of attempted
breaking and entering in violation of R.C. 2911.13, a misdemeanor in the first degree
(Case No. 10CR017).
{¶2} On June 18, 2010, appellant pled guilty to six additional counts of breaking
and entering in the fifth degree in violation of R.C. 2911.13 (Case No. 10CR051).
{¶3} A sentencing hearing was held on July 20, 2010. By judgment entry filed
same date, the trial court sentenced appellant to an aggregate term of three years in
prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT COMMITTED ERROR IN SENTENCING THE
APPELLANT IN VIOLATION OF STATE V. FOSTER, THUS THE SENTENCE IS
UNCONSTITUTIONAL."
I
{¶6} Appellant claims the trial court erred in sentencing him to maximum
sentences in violation of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. We
disagree.
{¶7} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4, the Supreme
Court of Ohio set forth the following two-step approach in reviewing a sentence:
Holmes County, Case Nos. 10CA017 and 10CA018 3
{¶8} "In applying Foster to the existing statutes, appellate courts must apply a
two-step approach. First, they 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."
{¶9} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶10} We note although in Oregon v. Ice (2009), 555 U.S. 160, the United States
Supreme Court upheld the constitutional validity of an Oregon statute similar to Ohio's
pre-Foster sentencing statutes, the Supreme Court of Ohio in State v. Hodge, --- Ohio
St.3d ----, 2010-Ohio-6320, held the Oregon case did not revive the Foster statutes, and
trial courts are not obligated to engage in judicial fact-finding prior to imposing
consecutive sentences.
{¶11} By judgment entry filed July 20, 2010, in Case No. 10CR017, the trial
court sentenced appellant to twelve months on two separate breaking and entering
convictions in the fifth degree, to be served concurrently, and twelve months on the theft
conviction in the fifth degree, to be served consecutively to the breaking and entering
sentences, and in Case No. 10CR051, twelve months on six separate breaking and
entering convictions in the fifth degree, to be served concurrently with each other, but
consecutively to the two years imposed in Case No. 10CR017. Felonies of the fifth
degree are punishable by "six, seven, eight, nine, ten, eleven, or twelve months." R.C.
2929.14(A)(5). Clearly the sentences on each count were within the permissible range.
Holmes County, Case Nos. 10CA017 and 10CA018 4
Furthermore, in its judgment entry, the trial court expressly stated that it considered the
purposes and principles of sentencing under R.C. 2929 .11, as well as the seriousness
and recidivism factors under R.C. 2929.12. Accordingly, the sentences are not clearly
and convincingly contrary to law.
{¶12} Appellant pled guilty to eight counts of breaking and entering, one count of
theft, and one count of attempted breaking and entering, all involving different
businesses and several different dates.
{¶13} Upon review, we find the aggregate sentence was neither contrary to law
nor an abuse of discretion.
{¶14} The sole assignment of error is denied.
{¶15} The judgment of the Court of Common Pleas of Holmes County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 301
Holmes County, Case Nos. 10CA017 and 10CA018 5
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
GREGORY THOMPSON :
: CASE NOS. 10CA017
Defendant-Appellant : 10CA018
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Holmes County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Patricia A. Delaney________________
JUDGES
Holmes County, Case Nos. 10CA017 and 10CA018 6