State v. Franklin ( 2011 )

[Cite as State v. Franklin, 2011-Ohio-3052.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95316 and 96109
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GENESIS FRANKLIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-532607, CR-533292 and CR-534183
BEFORE: Jones, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEY FOR APPELLANT
Gregory Zitkiewicz
30432 Euclid Avenue
Suite 101
Wickliffe, Ohio 44092
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Diane Russell
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Defendant-appellant, Genesis Franklin (“Franklin”), appeals his convictions for
drug trafficking. For the reasons that follow, we affirm.
{¶ 2} On May 4, 2010, Franklin pleaded guilty to one count of attempted trafficking
in Case No. CR-532607, one count of trafficking with a forfeiture specification in Case No.
CR-533292, and one count of trafficking with a forfeiture specification in Case No.
CR-534183. The trial court sentenced Franklin to four years in prison on Case No.
CR-532607, one year in Case No. CR-533292 and one year in Case No. CR-534183, to be
served consecutively, for a total of six years in prison.
{¶ 3} The cases were separately appealed and we have consolidated them for review
and disposition. Franklin raises the following assignment of error for our review:
{¶ 4} “I. The trial court erred by sentencing appellant to the maximum term [o]f
imprisonment.”
{¶ 5} Franklin argues that the trial court failed to appropriately sentence him because
the court failed to make adequate findings on the record. But pursuant to the Ohio Supreme
Court’s holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the trial
court was not required to make any findings on the record in order to support the imposition of
the sentence. Post-Foster, the trial court has full discretion to impose any sentence within the
statutory range and is no longer required to make findings or give its reasons for imposing
more than the minimum sentences. See id.{¶ 6} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the
Ohio Supreme Court established a two-step procedure for reviewing felony sentences. The
Kalish Court held:
{¶ 7} “In applying Foster to the existing statutes, appellate courts must apply a
two-step approach. 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 in imposing the term of imprisonment is reviewed under the abuse of
discretion standard.” Id.{¶ 8} A sentence is not clearly and convincingly contrary to law where the trial court
“consider[s] the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, * * * properly applie[s] postrelease control, and * * * sentence[s] * * * within the
permissible range.” Id. at ¶18. In addition, so long as the trial court gives “careful and
substantial deliberation to the relevant statutory considerations[,]” the court’s sentencing
decision is not an abuse of discretion. Id. at ¶20.
{¶ 9} In this case, Franklin does not assert that his sentence was contrary to law and
our review of the record shows that the sentences were within the statutory ranges. Franklin
contends that the trial court did not give “careful and substantial deliberation to the relevant
statutory considerations,” as mandated by Kalish, because the trial court did not take into
consideration his drug problems, his desire to seek treatment for his addiction, or his genuine
remorse for his crimes. He also claims the court erred in sentencing him to the maximum
sentence. We disagree.
{¶ 10} At the hearing, the trial court expressly stated it was taking into consideration
the factors pursuant to R.C. 2929.11 and 2929.12, that it had reviewed the presentence
investigation report, and found Franklin’s conduct was “more serious than conduct known to
constitute the charge of the offense” and “a prison sentence was consistent with the purposes
and principles of sentencing.” The trial court also sentenced Franklin to six years in prison,
which was less than the maximum sentence he could have received for his crimes.
1
{¶ 11} Based on the wide latitude trial courts have been given in sentencing offenders
within the statutory limit for each offense, we cannot say that the trial court in this case abused
its discretion in sentencing Franklin.
{¶ 12} Therefore, the sole assignment of error is overruled.
{¶ 13} Accordingly, judgment is 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Franklin pleaded guilty to one felony of the third degree and two felonies of the fifth degree.
1
As such, the maximum sentence he could have received was seven years in prison.
LARRY A. JONES, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR