State v. Foster

[Cite as State v. Foster, 2021-Ohio-1454.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-20-26
v.
ANDREW K. FOSTER,
OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 20CR0098
Judgment Affirmed
Date of Decision: April 26, 2021
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
Case No. 14-20-26
SHAW, J.
{¶1} Defendant-appellant, Andrew K. Foster (“Foster”), appeals the
November 25, 2020 judgment of the Union County Court of Common Pleas,
journalizing his conviction after pleading guilty to one count of second-degree
felony engaging in a pattern of corrupt activity, one count of fourth-degree felony
grand theft, and one count of fifth-degree felony breaking and entering, and
sentencing him to an aggregate indefinite prison term of 10 ½ to 14 ½ years.
{¶2} On appeal, Foster argues that trial court erred when it overruled his oral
motion to withdraw his guilty plea at sentencing. He also claims that his sentence
is contrary to law because the trial court sentenced him to an indefinite prison term
on a non-qualifying second-degree felony and because the trial court failed to
adequately consider the purposes and principles of felony sentencing under R.C.
2929.11 and R.C. 2929.12 when it imposed the maximum prison terms on each
count and when it ordered the prison terms to run consecutively. Foster further
asserts that the trial court erred when it ordered him to pay restitution.
Relevant Facts and Procedural History
{¶3} On June 19, 2020, the Union County Grand Jury returned an eighteen-
count indictment against Foster alleging that he committed the offenses of Count 1:
engaging in a pattern of corrupt activity, a felony of the second degree, in violation
of R.C. 2923.32(A)(1), (B)(1); Count 2: grand theft, a felony of the fourth degree,
-2-
Case No. 14-20-26
in violation of R.C. 2913.02(A)(1), (B)(2); Count 3: attempted breaking and
entering, a misdemeanor of the first degree, in violation of R.C. 2923.02 and R.C.
2911.13(A); Counts 4 through 17: breaking and entering, all felonies of the fifth
degree, in violation of R.C. 2911.13(A), (C); and Count 18: theft, a felony of the
fifth degree in violation of R.C. 2912.03(A)(1), (B)(2). Upon arraignment, Foster
entered pleas of not guilty to the charges.
{¶4} The charges arose from a series of fifteen breakings and enterings of
convenience and cigarette stores alleged to have been done by a “crew” of
individuals, during which the lock cylinders were removed from the doors to allow
the crew to gain access to cigarettes and other items that were later traded or sold
for crack cocaine and money. These crimes took places in multiple counties,
including Union County, and amounted to an aggregate loss in excess of $29,000.00
to the victims. Investigation by law enforcement revealed that Foster, a former
locksmith, was the leader and organizer of the crew and the individual who removed
the lock cylinders from the doors.
{¶5} On October 22, 2020, Foster withdrew his previously tendered pleas of
not guilty and entered guilty pleas to Count 1, second-degree felony engaging in a
pattern of corrupt activity; Count 2, fourth-degree felony grand theft; and Count 13,
fifth-degree felony breaking and entering. In exchange for Foster’s guilty pleas, the
prosecution agreed to dismiss the remaining fifteen counts listed in the indictment.
-3-
Case No. 14-20-26
The prosecution also agreed not to present a sentencing recommendation to the
court. The trial court then accepted Foster’s guilty pleas and ordered the completion
of a presentence investigation.
{¶6} On November 3, 2020, the State filed a restitution report, itemizing the
economic loss to each victim pertaining to the counts to which Foster pled guilty.
This loss included stolen inventory, cash, and damage to the doors and locks. The
restitution requested by the victims totaled $25,385.85.
{¶7} On November 24, 2020, Foster appeared for sentencing. The trial court
conducted a lengthy discussion on the record regarding the purposes and principles
of felony sentencing and the sentencing factors set forth in R.C. 2929.11 and R.C.
2929.12. The trial court then imposed a maximum prison term for the second-
degree felony engaging in a pattern of corrupt activity offense of 8 to 12 years; a
maximum prison term for the fourth-degree felony grand theft offense of 18 months;
and a maximum prison term for the fifth-degree felony breaking and entering
offense of 12 months. The trial court ordered the prison terms to run consecutively
for an aggregate indefinite prison term of 10 ½ years to 14 ½ years. The trial court
also ordered Foster to be jointly and severally liable with his convicted co-
defendants for the payment of restitution to the victims in the amount of $25,385.85.
{¶8} Foster filed this appeal, asserting the following assignments of error.
-4-
Case No. 14-20-26
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO AN INDEFINITE TERM OF PRISON ON
THE ENGAGING IN A PATTERN OF CORRUPT ACTIVITY,
AS THAT IS NOT A QUALIFYING FELONY UNDER THE
REAGAN TOKES LAW.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO MAXIMUM SENTENCES ON THE
FOURTH AND FIFTH DEGREE FELONIES AND FURTHER
ERRED WHEN IT RAN THE THREE SENTENCES
CONSECUTIVE.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S ORAL MOTION TO WITHDRAW HIS PLEA
BEFORE HE WAS SENTENCED.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED IN ORDERING RESTITUTION.
{¶9} For ease of discussion, we elect to address the assignments of error out
of order.
Third Assignment of Error
{¶10} In his third assignment of error, Foster claims that the trial court erred
when it overruled his oral motion to withdraw his guilty pleas at sentencing.
Legal Authority
{¶11} Criminal Rule 32.1 governs motions to withdraw a guilty plea and
provides that “[a] motion to withdraw a plea of guilty or no contest may be made
-5-
Case No. 14-20-26
only before sentence is imposed; but to correct manifest injustice the court after
sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.” While a motion to withdraw a guilty plea made prior to
sentencing should be freely allowed and liberally granted, there is no absolute right
to withdraw a guilty plea. State v. Xie, 62 Ohio St.3d 521, 527. Rather, the record
must show there is “a reasonable and legitimate basis for the withdrawal of the
plea.” Id. “A trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of the plea.” Xie, paragraph one
of the syllabus. The decision on whether to grant a motion to withdraw a guilty plea
is within the sound discretion of the trial court. Id. at 521. An abuse of discretion
connotes that the trial court’s attitude was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶12} When determining whether a trial court abused its discretion in
denying a pre-sentence motion to withdraw a guilty plea, the reviewing court must
consider nine factors: (1) whether the state will be prejudiced by withdrawal; (2) the
representation afforded to the defendant by counsel; (3) the extent of the Crim.R.
11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether
the trial court gave full and fair consideration to the motion; (6) whether the timing
of the motion was reasonable; (7) the reasons for the motion; (8) whether the
defendant understood the nature of the charges and potential sentences; and (9)
-6-
Case No. 14-20-26
whether the accused was perhaps not guilty or had a complete defense to the charge.
State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 21. “None of the
factors is determinative on its own and there may be numerous additional aspects
‘weighed’ in each case.” State v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-
720, ¶ 16. Importantly, this Court has long held that a mere change of heart does
not form a sufficient basis for granting withdrawal of a guilty plea. See State v.
Miller, 3d Dist. Hardin No. 6-18-13, 2019-Ohio-2157, ¶ 17.
The Record Pertaining to the Motion to Withdraw the Pleas
{¶13} The record indicates that at a pretrial hearing defense counsel
advocated for Foster to be considered for a Community Based Correctional Facility
(“CBCF”) as a form of intervention in lieu of conviction to treat Foster’s ongoing
drug addiction. The State indicated at this hearing that Foster was not a good
candidate for a CBCF given his extensive criminal history and lack of success with
rehabilitation.
{¶14} At the change of plea hearing, after Foster had already entered his
guilty pleas, defense counsel again advocated for Foster to be considered for a
CBCF:
[Defense Counsel]: Yes, your Honor. Throughout my
representation of Mr. Foster, he’s indicated that a large
continuing drug addition [sic] is what caused any activity that he
was involved in here. We would ask the Court, given the fact that
none of the charges that he’s entered pleas—pled guilty to here
require any type of mandatory prison time, that he be considered
-7-
Case No. 14-20-26
for an assessment at the West Central CBCF to determine
whether he is a good candidate for participation in that program.
[Trial Court]: The Court’s checked that box.1 You’re entitled to
present that argument if you wish to present it. And anything
further to come before the Court then?
[Defense Counsel]: Not today.
(Oct. 22, 2020 Plea Hrg. at 42-43).
{¶15} Foster initially appeared at the sentencing hearing telephonically, but
requested to appear in person. After the trial court had the opportunity to review
the presentence investigation, the following exchange transpired regarding Foster’s
request to change his plea:
[Trial Court]: Now, I ask—I began to ask off the record, [defense
counsel], the case is set for sentencing this morning. Is Mr. Foster
ready to proceed?
[Defense Counsel]: Your Honor, I spoke to Mr. Foster and he’s
indicated that he will not waive his right to be personally present.
He wants to be here. He also is requesting the status of the
assessment from West Central. He wants that completed before
he is sentenced.
[Trial Court]: The Court denies the latter assessment to CBCF.
The Court’s review of the case indicates that Mr. Foster’s been
given multiple opportunities of rehabilitation and has been
unsuccessful. And also, that he completed the CBCF once before
in Franklin County. There was no way that we could get the
assessment in this case completed after we received the PSI due to
Mr. Foster’s hospitalization. And there’s—there’s no possibility
after reviewing the PSI and the extensive prior record of Mr.
Foster that I would ever sentence him to the CBCF.
1
This box appeared on the written change of plea agreement and indicated that Foster was eligible for
community control sanctions pending the completion and review of a presentence investigation.
-8-
Case No. 14-20-26
[Defense Counsel]: Your Honor, may I respond?
[Trial Court]: Sure.
[Defense Counsel]: The Court ordered in the plea agreement that
he be assessed. As you indicated, he has not been assessed. I
understand the problems with that. We do have a proposal for
the Court. And that is Mr. Foster has a nephew that lives in
Shawnee Hills. His name is Nick Hanscel. We would propose to
the Court that Mr. Foster be released on his own recognizance to
live with Mr. Hanscel. It is my understanding that he’s been
discharged from the Springfield Hospital, but they have him on
oxygen for one thing. Secondly, there are multiple medical
appointments he needs to attend. If he were living with his
nephew, his nephew could ensure that he gets to those medical
appointments.
[Trial Court]: I’m—I would not allow Mr. Foster to be released
from jail under any circumstances. He’s made statements,
specifically, while he was in jail on July 29th that no one’s getting
him locked up again [“]on some bullshit in the penitentiary. I’ll
make the cops shoot me before they get me on that bus. I don’t
give a fuck, bro, I’m going to go ham. They don’t know who they
are fucking with. I don’t give a fuck, bro. You got to take my life
before you put me back on the fucking bus and put me in the
penitentiary again.[”]2 In addition to that, we’ve had contact on
the part of Mr. Foster with Tracy Chambers during the time that
he was hospitalized and, specifically, violating the Court’s rules
of no contact rules, so—3
[Foster]: Excuse me. Excuse me. I never got a copy of anything
for no contact until after that happened. (Inaudible) to my
knowledge. (Inaudible).
2
It is apparent from the record that the trial court was reading a transcription of the recorded phone call that
Foster made to another individual on July 29, 2020, while he was in the jail awaiting the resolution of this
case.
3
The record also indicates that Ms. Chambers was Foster’s longtime girlfriend and accomplice in the
underlying cases. Ms. Chambers claimed that Foster forced her to participate in the breakings and enterings
under threat of physical violence.
-9-
Case No. 14-20-26
[Trial Court]: At the original hearing, the arraignment hearing,
Mr. Foster, that was held on June 24th of 2020, the Court, as part
of the conditions of your bond, issued a no contact order with
victim, complaining witnesses, Gabriel Olden and Tracy
Chambers. The fact—
[Foster]: They never got (inaudible).
[Trial Court]: You would have gotten a copy of that paperwork
back in 2000 and—early 2020. And even in the event that you did
not get it, the Court pronounced that on the record. So we’ll
adjourn the hearing—
[Foster]: Yeah. I just—
[Trial Court]: We’ll adjourn the hearing, Mr.—
[Foster]: No. I just—I want to change my plea. I’ll take my case
to trial.
[Trial Court]: Excuse me?
[Foster]: I said I change my plea. I’ll take my case to trial.
[Trial Court]: You’re before the Court for sentencing this
morning, Mr. Foster, and that’s what we’re going to accomplish.
In the event that you would—
[Foster]: Huh?
[Trial Court]: In the event that you wish to be transported, I will
have you transported by the Deputies and we’ll convene later
on—again this morning and complete sentencing.
[Foster]: Yeah. I want to change my plea.
[Trial Court]: You don’t have the right to change your plea, sir.
[Foster]: Well, (inaudible) I thought I was being assessed—
assessed for a program that was part of my plea agreement.
- 10 -
Case No. 14-20-26
[Trial Court]: I’ll have the people from the CBCF here when you
get here and they will assess you and give you a verbal report on
the assessment so that you can be satisfied that you were assessed
as you requested.
[Foster]: I still want to change my plea.
[Trial Court]: That—that motion is denied.
[Foster]: Okay. Whatever.
(Nov. 24, 2020, Sent. Hrg. at 4-7).
{¶16} The record demonstrates that the trial court adjourned sentencing and
then reconvened the hearing with Foster in person, after he underwent an assessment
for a CBCF. The trial court stated on the record that the CBCF declined Foster’s
admission to the facility. The trial court asked if there were any further matters to
be addressed prior to sentencing. Foster’s counsel indicated that they were ready to
proceed. The court then proceeded with sentencing and asked Foster if there was
anything further he would like the court to consider. The record indicates that Foster
provided an explanation about his prior phone call from jail that the trial court
referenced earlier in the hearing. After Foster finished his explanation the trial court
again asked, “Anything else, sir?” to which Foster replied “No. That’s it, your
Honor.” (Nov. 24, 2020, Sent. Hrg. at 14).
- 11 -
Case No. 14-20-26
Discussion
{¶17} On appeal, Foster claims it was error for the trial court to not postpone
the sentencing proceeding and hold a separate hearing on his motion to withdraw
his guilty pleas. However, we note that “[a] court is not required to postpone
sentencing and hold a separate and distinct hearing on an oral motion to withdraw a
plea.” State v. Perez, 7th Dist. Mahoning No. 12 MA 110, 2013-Ohio-3587, ¶ 15.
Moreover, we find the record demonstrates that the timing of Foster’s motion was
unreasonable. See State v. Shelton, 3d Dist. Seneca No. 13-11-07, 2011-Ohio-4893,
¶ 12 (finding the timing of a motion to withdraw a plea presented on the day of
sentencing as being unreasonable). The record reflects that Foster raised his motion
at the sentencing hearing only when it became evident that the trial court intended
to impose a prison term, rather than sending Foster to a CBCF.
{¶18} Nevertheless, it is apparent from the record that the trial court gave
full and fair consideration to Foster’s stated basis for the motion to withdraw, which
was based upon his request for a CBCF assessment. As previously noted, the trial
court postponed sentencing to allow the CBCF assessment to take place and
sufficiently addressed this issue with Foster on the record. Since Foster has failed
to establish any valid reasons for the withdrawal, it can be presumed that the motion
was made because Foster changed his mind at the last minute when it became clear
that the judge would likely impose a lengthy prison term. See e.g., State v. Miller,
- 12 -
Case No. 14-20-26
3d Dist. Hardin No. 6-18-13, 2019-Ohio-2157, ¶ 16; State v. Battersby, 11th Dist.
Lake No. 2007-L-023, 2008-Ohio-836, ¶ 59 (“[a] defendant is not entitled to
withdraw his * * * plea merely because he has changed his mind or because he has
learned that he will receive a harsher sentence than he had subjectively expected”);
State v. Kramer, 7th Dist. Mahoning No. 01 CA 107, 2002-Ohio-4176, ¶ 50 (a mere
change of mind about entering the plea does not justify a withdrawal).
{¶19} For all these reasons, we conclude that the trial court acted within its
discretion in denying Foster’s oral pre-sentence motion to withdraw his pleas at
sentencing, and it did not err in declining to conduct a separate hearing on Foster’s
motion. Accordingly, the third assignment of error is overruled.
First Assignment of Error
{¶20} In his first assignment of error, Foster claims that the trial court’s
sentence is contrary to law. Specifically, Foster argues that the trial court was not
authorized to impose an indefinite prison term for his second-degree felony
engaging in a pattern of corrupt activity conviction because it is not a qualifying
felony under the Regan Tokes Law.4 On appeal, Foster cites R.C. 2901.011 as the
sole basis for this contention.
4
Regan Tokes Law provides that a court imposing a non-life imprisonment term for certain first and second-
degree felonies committed after the law’s March 22, 2019 effective date, defined as a qualifying felony, must
impose a minimum prison term which may be extended by one-half the minimum term due to institutional
infractions as determined by the Ohio Department of Corrections. See State v. Acosta, 6th Lucas Nos. L-20-
1068, L-20-1069, 2021-Ohio-757, ¶ 6.
- 13 -
Case No. 14-20-26
{¶21} Revised Code Section 2901.011 states in its entirety:
The amendments to sections 109.42, 121.22, 149.43, 2903.06,
2903.08, 2903.11, 2903.12, 2905.01, 2905.32, 2907.02, 2907.03,
2907.05, 2907.07, 2919.22, 2919.25, 2921.321, 2921.36, 2923.132,
2925.01, 2925.02, 2925.03, 2925.04, 2925.041, 2925.11, 2929.01,
2929.14, 2929.142, 2929.15, 2929.19, 2929.191, 2929.20, 2929.61,
2930.16, 2943.032, 2953.08, 2967.01, 2967.021, 2967.03, 2967.13,
2967.19, 2967.191, 2967.193, 2967.26, 2967.28, 2971.03, 3719.99,
5120.021, 5120.53, 5120.66, and 5120.80 and the enactment of
sections 2901.011, 2929.144, 2967.271, and 5120.038 of the Revised
Code by S.B. 201 of the 132nd general assembly constitute the
Reagan Tokes Law.
(Emphasis added).
{¶22} Foster claims that because R.C. 2923.32, the statute outlining the
offense of engaging in a pattern of corrupt activity, does not appear in the list of
amended statutes it is not a qualifying felony under the Regan Tokes Law, and
therefore not subject to indefinite sentencing. However, in making this argument
Foster overlooks the fact that in R.C. 2901.011 the Ohio Legislature defined the
“Reagan Tokes Law” to constitute all of the amendments listed in R.C. 2901.011
and four other statutes, one of which is R.C. 2929.144.
{¶23} Revised Code Section 2929.144 sets forth the guidelines for
determining a maximum prison term under indefinite sentencing and defines a
“qualifying felony of the first or second degree” as “a felony of the first or second
degree committed on or after the effective date of this section.” R.C. 2929.144(A).
The effective date of the Regan Tokes Law is March 22, 2019. Incidentally, the
- 14 -
Case No. 14-20-26
record in this case clearly establishes that Foster committed his offenses after the
effective date.
{¶24} This definition of qualifying felony is reiterated in R.C.
2929.14(A)(2)(a), which governs the permissible statutory range for prison terms
for a second degree felony, and notably was the same statute by which trial court
sentenced Foster. Specifically, R.C. 2929.14(A)(2)(a), states:
For a felony of the second degree committed on or after the
effective date of this amendment, the prison term shall be an
indefinite prison term with a stated minimum term selected by the
court of two, three, four, five, six, seven, or eight years and a
maximum term that is determined pursuant to section 2929.144
of the Revised Code, except that if the section that criminalizes
the conduct constituting the felony specifies a different minimum
term or penalty for the offense, the specific language of that
section shall control in determining the minimum term or
otherwise sentencing the offender but the minimum term or
sentence imposed under that specific language shall be considered
for purposes of the Revised Code as if it had been imposed under
this division.
{¶25} Based on the foregoing, we find Foster’s reliance on R.C. 2901.011 to
be misplaced, as Foster fails to consider the other statutes which also constitute the
Regan Tokes Law. In other words, R.C. 2901.011 simply delineates what statutes
and amendments comprise the Regan Tokes Law. Unlike R.C. 2929.144, R.C.
2901.011 contains no operative language defining a qualifying felony. Therefore,
we conclude that under the language of R.C. 2929.144(A) the trial court correctly
determined that Foster’s conviction for engaging in a pattern of corrupt activity was
- 15 -
Case No. 14-20-26
a qualifying second-degree felony subject to indefinite sentencing under R.C.
2929.14(A)(2)(a). Accordingly, the first assignment is overruled.
Second Assignment of Error
{¶26} In his second assignment of error, Foster claims that his sentence is
clearly and convincingly contrary to law because the trial court failed to adequately
consider the purposes and principles of felony sentencing and failed to properly
apply the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12 when it
imposed the maximum prison terms and ordered the prison terms to run
consecutively.
Standard of Review
{¶27} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’ ”
Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
- 16 -
Case No. 14-20-26
Relevant Authority
{¶28} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give
its reasons for imposing maximum or more than [a] minimum sentence[ ].” State v.
Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26; State v. White, 3d
Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheless, when exercising its
sentencing discretion, a trial court must consider the statutory policies that apply to
every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.
State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.
Maximum Prison Terms
{¶29} Here, the trial court imposed upon Foster an indefinite prison term
with a stated minimum of 8 years and a stated maximum of 12 years for the
qualifying felony of the second degree; a maximum term of 18 months for the fourth
degree felony offense; and a maximum term of 12 months for the fifth degree felony
offense. These prison terms are within the appropriate statutory range and are
compliant with the relevant statutes, therefore they are presumptively valid. State
v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31; R.C. 2929.14.
Moreover, the record clearly establishes the trial court analyzed the purposes and
principles of felony sentencing and the sentencing factors set forth in R.C. 2929.11
- 17 -
Case No. 14-20-26
and R.C. 2929.12 factors, both at the sentencing hearing and in its judgment entry
of sentence.
{¶30} On appeal, Foster simply disagrees with the trial court’s application of
these factors to the facts and circumstances of his case.
Appellate Review of R.C. 2929.11 and R.C. 2929.12 Factors
{¶31} The Supreme Court of Ohio recently clarified an appellate court’s
review of felony sentences under R.C. 2953.08(G)(2). See, State v. Jones, --- Ohio
St.3d ---, 2020-Ohio-6729, ¶ 39. The Supreme Court ruled that R.C.
2953.08(G)(2)(a) “clearly does not provide a basis for an appellate court to modify
or vacate a sentence if it concludes that the record does not support the sentence
under R.C. 2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R.C. 2929.12
are not among the statutes listed in the provision.” Id. at ¶ 31. Thus, the Supreme
Court concluded that an appellate court may not modify or vacate a felony sentence
based upon a finding by clear and convincing evidence that the record does not
support the trial court’s “findings” under R.C. 2929.11 and R.C. 2929.12. See id. at
¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently
weigh the evidence in the record and substitute its judgment for that of the trial court
concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12.”).
- 18 -
Case No. 14-20-26
{¶32} The Supreme Court in Jones also confirmed that R.C.
2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or
vacate a felony sentence based upon a finding that the sentence is “contrary to law”
because it clearly and convincingly is not supported by the record under R.C.
2929.11 and R.C. 2929.12. Id. at ¶ 32-39. “As a result of the Supreme Court’s
holding in Jones, when reviewing felony sentences that are imposed solely after
considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall no longer
analyze whether those sentences are unsupported by the record. We simply must
determine whether those sentences are contrary to law.” State v. Dorsey, 2d Dist.
Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contrary to law when
it does not fall within the statutory range for the offense or if the trial court fails to
consider the purposes and principles of felony sentencing set forth in R.C. 2929.11
and the sentencing factors set forth in R.C. 2929.12.” Id. citing State v. Brown, 2d
Dist. No. 2016-CA-53, 2017-Ohio-8416, ¶ 74; see State v. D-Bey, 8th Dist.
Cuyahoga No. 109000, 2021-Ohio-60, ¶ 65 (“A sentence is ‘contrary to law’ if it
falls outside the statutory range for the offense or if the trial court fails to consider
the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors set forth in R.C. 2929.12 when sentencing a defendant for a
felony offense.”).
- 19 -
Case No. 14-20-26
{¶33} In sum, the record demonstrates that the prison terms imposed by the
trial court in this case are within the statutory range and that the trial court
considered the statutory factors in R.C. 2929.11 and 2929.12 when it imposed the
maximum prison terms upon Foster. Thus, Foster’s sentence is not clearly and
convincingly contrary to law, and it must therefore be affirmed. See State v. Slife,
3d Dist. Auglaize No. 2-20-17, 2021-Ohio-644, ¶ 17; Burks, 2d Dist. Clark No.
2019-CA-70, 2021-Ohio-224, ¶ 9, (“Under Jones, this ends the inquiry regarding
the individual sentences. In this respect, there is no basis upon which to modify or
vacate either individual sentence.”); see also, D-Bey, supra, ¶ 75, citing Jones at ¶
39 (concluding that “this court cannot review D-Bey’s sentences to determine
whether they are “excessive” or otherwise not “supported by the record under R.C.
2929.11 and 2929.12.”). Thus, we find no merit to Foster’s argument that the trial
court’s imposition of the maximum prison terms was contrary to law.
Consecutive Sentences
{¶34} Foster also argues that his consecutive sentences are contrary to law
because the record does not support the trial court’s findings under R.C.
2929.14(C)(4). To the extent that Foster is attempting to challenge the overall
length of his aggregate sentence under R.C. 2929.11, the Supreme Court of Ohio
has clarified that R.C. 2929.11 and 2929.12 do not apply to consecutive-sentencing
review. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, ¶ 17. Rather,
- 20 -
Case No. 14-20-26
appellate review of consecutive sentences is limited to R.C. 2929.14(C)(4), as stated
in R.C. 2953.08(G)(2)(a). Id. Accordingly, we cannot review the aggregate length
of Foster’s consecutive sentences under R.C. 2929.11 and the issue of consecutive
sentences is limited to appellate review under R.C. 2929.14(C)(4).
{¶35} Revised Code section 2929.14(C)(4) provides as follows:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by
two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public
from future crime by the offender.
{¶36} The statute requires the trial court to make three statutory findings
before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-
- 21 -
Case No. 14-20-26
Ohio-493, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 26. The
court must find that (1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender; (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger that
the offender poses to the public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is
applicable. Beasley at ¶ 252. “[T]he trial court must make the requisite findings
both at the sentencing hearing and in the sentencing entry.” (Emphasis in original.)
Id. at ¶ 253, citing Bonnell at ¶ 37. A trial court’s failure to make the necessary
findings under R.C. 2929.14(C)(4) renders the imposition of consecutive sentences
contrary to law. See Bonnell at ¶ 37.
{¶37} Here, the record reflects that the trial court made the requisite findings
both at sentencing and in its judgment entry. Notably, Foster does not dispute that
the necessary findings were made. Instead, he makes several unsupported
arguments based upon conjecture that the trial court’s decision to impose
consecutive sentences was “purely arbitrary,” retaliatory against him for exercising
his right to appear in person for sentencing rather than remotely, and an opportunity
to impose additional time for the charges that were dismissed. (Appt. Brief at 8).
Despite these claims, Foster fails to cite any evidence in the record to demonstrate
that the trial court’s imposition of consecutive sentences was not supported by the
record.
- 22 -
Case No. 14-20-26
{¶38} This notwithstanding, our review of the record reveals ample support
for the trial court’s findings under R.C. 2929.14(C)(4). At the sentencing hearing,
the trial court observed the presentence investigation showed that Foster had an
extensive criminal record consisting of numerous felony offenses. Almost all of
these prior convictions included conduct similar to the felonies committed in the
instant case. In particular, Foster had prior convictions for breaking and entering,
safe cracking, grand theft, forgery, and engaging in a pattern of corrupt activity.
Even though Foster had successfully completed a drug program at a CBCF in 2012,
he quickly returned to a life of crime and addiction committing felony offenses
similar to the ones he had committed in the past. In addition, the record indicates
that the criminal conduct comprising the underlying offenses was pre-planned,
organized, and pervasive, resulting in numerous victims suffering serious economic
loss.
{¶39} In sum, we conclude that the record fully supports the trial court’s
findings under R.C. 2929.14(C)(4). Given that the trial court made all three of the
necessary findings under R.C. 2929.14(C)(4), and that those findings are supported
by the record, we find that the trial court did not err in imposing consecutive
sentences upon Foster. Moreover, as already discussed, we also conclude that
Foster has failed to establish that the trial court’s imposition of the maximum prison
- 23 -
Case No. 14-20-26
terms upon him is contrary to law. Accordingly, Foster’s second assignment of
error is overruled.
Fourth Assignment of Error
{¶40} In his fourth assignment of error, Foster challenges the trial court’s
order of restitution. Specifically, Foster argues that the State presented insufficient
evidence to establish the amount of economic loss suffered by the victims, and
therefore the trial court erred in ordering him to pay restitution.
{¶41} At the outset we note the record shows that Foster failed to object to
the amount of restitution in the trial court proceedings. A failure to object to a trial
court’s award of restitution waives all but plain error. See State v. Stewart, 3d Dist.
Allen No. 16-08-11, 2008-Ohio-5823, ¶ 7. Notice of plain error under Crim. R.
52(B) is to be taken with the utmost caution, under exceptional circumstances, and
only to prevent a manifest miscarriage of justice. State v. Landrum, 53 Ohio St.3d
107, 111 (1990).
{¶42} Revised Code section 2929.18 governs the payment of restitution and
provides in relevant part:
(A)(1) Restitution by the offender to the victim of the offender’s
crime or any survivor of the victim, in an amount based on the
victim's economic loss. * * * If the court imposes restitution, at
sentencing, the court shall determine the amount of restitution to
be made by the offender. If the court imposes restitution, the court
may base the amount of restitution it orders on an amount
recommended by the victim, the offender, a presentence
investigation report, estimates or receipts indicating the cost of
- 24 -
Case No. 14-20-26
repairing or replacing property, and other information, provided
that the amount the court orders as restitution shall not exceed
the amount of the economic loss suffered by the victim as a direct
and proximate result of the commission of the offense. * * *
(Emphasis added.)
{¶43} Before imposing an order of restitution, a sentencing court must
determine that “ the amount of restitution bears a reasonable relationship to the loss
suffered.” State v. Borders, 12th Dist. Clermont No. CA2004-12-101, 2005-Ohio-
4339, ¶ 36. The amount of restitution must be determinable to a reasonable degree
of certainty and supported by competent, credible evidence. State v. Perkins, 3d
Dist. Marion No. 9-13-52, 2014-Ohio-2242, ¶ 12.
{¶44} Prior to sentencing, the State filed a restitution report compiled by the
victim advocate which listed each of the 13 victims, the date the economic loss
occurred, and an itemization the specific amounts comprising the total economic
loss to each victim. The majority of the losses suffered by the victims was a result
of the cost to repair the damage store doors and a substantial amount of cigarettes
stolen from their inventories. In addition to this summary, the restitution report also
included police reports, inventory loss reports, and invoices for repairs made to the
store doors. The total economic loss of the victims shown in the restitution report
amounted to $25,385.85 At sentencing, the trial court referenced the restitution
report and stated that it would be submitted as Exhibit A. As previously noted, there
was no objection from Foster regarding the restitution report at sentencing.
- 25 -
Case No. 14-20-26
{¶45} After reviewing the record, we find no error, plain or otherwise, with
respect to the trial court’s restitution order. Specifically, we conclude that the trial
court did not commit plain error in determining the amount of restitution based upon
the restitution report compiled by the victim advocate and presented by the State.
The information submitted in the restitution report clearly satisfied R.C. 2929.18.
Contrary to Foster’s assertion, the amount of the economic loss was not required to
be established by testimony or other documentary evidence from insurance
agencies. Accordingly, on this basis the fourth assignment of error is overruled.
{¶46} For all these reasons, the assignments of error are overruled and the
judgment and sentence of the Union County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/jlr
- 26 -