State v. Foster

[Cite as State v. Foster, 2011-Ohio-2480.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10-COA-033
DUSTIN M. FOSTER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from Ashland County Court of
Common Pleas, Case No. 10-CRI-076
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 20, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS DOUGLAS A. MILHOAN
Ashland County Prosecutor P.O. Box 347
110 Cottage Street, Third Floor Middlebranch, Ohio 44652
Ashland, Ohio 44805
PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 10-COA-033 2
Hoffman, J.
{¶1} Defendant-appellant Dustin M. Foster appeals his sentence entered by the
Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 19, 2010, Appellant struck two men in the back of the head with a
hammer during a robbery. The men had to be lifeflighted to Cleveland Metro Hospital.
Both men sustained fractured skulls. During the police investigation of the incident,
Appellant was observed on surveillance video with the victims at a local bar in Ashland,
Ohio. The investigating officers contacted Appellant urging Appellant to turn himself in,
but Appellant fled to the State of Pennsylvania.
{¶3} Initially, Appellant claimed self-defense. However, Appellant later
admitted to seeing one of the victims with a large sum of money in his wallet. He lured
them to a home after leaving the bar, where he obtained a hammer and attacked them
from behind. Appellant stole money from the victim’s wallet and left the two victims in
the alley.
{¶4} On July 27, 2010, Appellant entered a plea of guilty to two counts of
felonious assault, both felonies of the second degree. On September 20, 2010, the trial
court sentenced Appellant to sixteen years in prison.
{¶5} Appellant now appeals, assigning as error:
{¶6} “I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE
IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.”
{¶7} Based on the record, this Court cannot find the trial court acted
unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant's
Ashland County, Case No. 10-COA-033 3
rights to due process under the Ohio and United States Constitutions in its sentencing.
Further, the sentence in this case is not so grossly disproportionate to the offense as to
shock the sense of justice in the community.
{¶8} In his assignment of error, Appellant contends his sentence violates the
general assembly's intent to minimize the unnecessary burden on state and local
government resources.
{¶9} In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second
District considered this same issue. In rejecting the argument, the court stated,
{¶10} “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.”
{¶11} The Ober court concluded,
{¶12} “[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.Ashland County, Case No. 10-COA-033 4
{¶13} R.C. 2929.13 governs sentencing guidelines for various specific offenses
and degrees of offenses. Subsection (A) states, in pertinent part:
{¶14} “Except as provided in division (E), (F), or (G) of this section and unless a
specific sanction is required to be imposed or is precluded from being imposed pursuant
to law, a court that imposes a sentence upon an offender for a felony may impose any
sanction or combination of sanctions on the offender that are provided in sections
2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an
unnecessary burden on state or local government resources.”
{¶15} As we noted in State v. Ferenbaugh, Ashland App. No. 03COA038, 2004-
Ohio-977 at paragraph 7, “[t]he very language of the cited statute grants trial courts
discretion to impose sentences. Nowhere within the statute is there any guideline for
what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, Ashland App. No.2008-
COA-036, 2009-Ohio-3105, this Court reviewed a similar claim. We found although
burdens on State resources may be a relevant sentencing criteria as set forth in R.C.
2929.13, state law does not require trial courts to elevate resource conservation above
seriousness and recidivism factors, Shull, at paragraph 22, citing State v. Ober (October
10, 1997), Greene App. No. 97CA0019, 1997 WL 624811.
Ashland County, Case No. 10-COA-033 5
{¶16} Upon review, we do not find the sentence imposed herein constituted an
unnecessary burden on state resources. The sole assignment of error is overruled.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Ashland County, Case No. 10-COA-033 6
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DUSTIN M. FOSTER :
:
Defendant-Appellant : Case No. 10-COA-033
For the reason stated in our accompanying Opinion, the judgment of the Ashland
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY