[Cite as State v. Dean, 2014-Ohio-2171.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2013CA00198
BRADFORD DEAN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2013CR0395


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         May 19, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO                                FREDRICK PITINII
Prosecuting Attorney                           101 Central Plaza South, Ste. 1000
Stark County, Ohio                             Canton, Ohio 44702

By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013CA00198                                                       2

Hoffman, P.J.


       {¶1}   Defendant-appellant Bradford Dean appeals his sentence on one count of

sexual battery entered by the Stark County Court of Common Pleas. Plaintiff-appellee

is the state of Ohio.

                                   STATEMENT OF THE CASE

       {¶2}   On April 25, 2013, Appellant was indicted on one count of sexual battery,

a felony of the third degree. Prior to the commencement of trial, the trial court agreed to

a plea deal including a two year sentence of incarceration. The offer was memorialized

on the record at a hearing before the trial court on July 5, 2013. Appellant indicated to

the trial court he understood the potential prison term for sexual battery as a one, two,

three, four or five year prison sentence with the potential of a Tier III sex offender

designation. The trial court stated on the record she was in no way indicating what her

sentence might be once she heard the facts of the case, but he certainly had the right to

a jury trial. Appellant rejected the plea offer.

       {¶3}   The matter proceeded to a jury trial on July 8, 2013. The jury trial ended

in a mistrial after the jury was unable to reach a verdict.

       {¶4}   Prior to the commencement of a second trial, the State entered into plea

negotiations with Appellant. During plea negotiations, the State offered to amend the

charge of sexual battery to a third degree felony of gross sexual imposition. The State

would then recommend a sentence of six months, and a Tier I sexual offender

classification. The trial court did not endorse the plea offer.
Stark County, Case No. 2013CA00198                                                      3


       {¶5}    Appellant again rejected the State's plea bargain. The trial court inquired

of Appellant if he understood the offer and the maximum penalty for sexual battery, to

which Appellant indicated he did understand the charges and potential penalties.

       {¶6}    A second jury trial commenced on September 11, 2013, with essentially

the same evidence as the first trial. Appellant was convicted of the sole count of sexual

battery.   Following a sentencing hearing, the trial court sentenced Appellant to the

maximum prison term of five years incarceration.

       {¶7}    Appellant appeals, assigning as error:

       {¶8}    "I. THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS

WHEN IT IMPOSED A SENTENCE PUNISHING HIM FOR EXERCISING HIS RIGHT

TO A JURY TRIAL.

       {¶9}    "II. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO

THE MAXIMUM PRISON TERM."

                                                I.

       {¶10} Appellant maintains the trial court imposed a sentence punishing him for

exercising his right to a jury trial.

       {¶11} A trial court may not punish a defendant who exercises his or her right to a

trial. State v. O'Dell (1989), 45 Ohio St.3d 140. A trial court must avoid creating the

appearance it enhanced a defendant's sentence because he elected to go to trial. State

v. Morris, 159 Ohio App.3d 775, 2005-Ohio-962. Impropriety will not be presumed by

the mere fact the sentence imposed after trial is greater than the sentence offered by

the state at plea negotiations. State v. Mayles, 7th Dist. No. 04CA808, 2005-Ohio-1346.

       {¶12} At sentencing herein, the trial court stated:
Stark County, Case No. 2013CA00198                                                          4


        {¶13} "I. THE COURT: Very well. The Court has sat through the trial twice. I'm

going to say preliminarily for purposes of the record based upon recent court of appeals

decisions that although I sat through those trials and I am aware of what the plea

negotiations were in advance of trial that the Court's sentence in this matter is in no way

reflective of a punishment of the Defendant because he elected to go to trial. That is

not what this is about.

        {¶14} "The Court's sentence is based upon the evidence and the facts that were

presented at trial.    What I observed in terms of witnesses, also based upon the

Defendant's criminal history in this matter, and the Court takes note that Mr. Dean has

abused his position and role with a child, one of the most precious things that as a

parent or a community that we are entrusted with to protect and to keep safe.

        {¶15} "And it's reprehensible to the Court that you would abuse this position

where parents and children have trusted you with that. And for that reason, it will be the

sentence of this Court that you serve five years in an appropriate state correctional

facility."

        {¶16} Tr. at 78-79.

        {¶17} Upon review, we find the trial court articulated its rationale for the five year

sentence. The trial court did not endorse the State's second offer following the first trial.

The court's first endorsed offer occurred prior to hearing the witnesses and evidence

presented at the first trial. The trial court had discretion to impose a greater sentence

after hearing the testimony and evidence. Accordingly, we find the trial court did not

punish Appellant for exercising his right to a jury trial.

        {¶18} The first assignment of error is overruled.
Stark County, Case No. 2013CA00198                                                        5


                                                II.

       {¶19} In the second assignment of error, Appellant argues the trial court erred in

sentencing him to the maximum prison sentence herein.

       {¶20} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,

the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,

2006–Ohio–856, 845 N.E.2d 470, as it relates to the remaining sentencing statutes and

appellate review of 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, 120 Ohio St.3d at

123. “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) .” Id. However, although

Foster eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and R.C.

2929.12 and the trial court must still consider these statutes. Id. Accordingly, “an

appellate court remains precluded from using an abuse-of-discretion standard of review

when initially reviewing a defendant's sentence” and must instead “ensure that the trial

court has adhered to all applicable rules and statutes in imposing the sentence. As a

purely legal question, this is subject to review only to determine whether it is clearly and

convincingly contrary to law, the standard found in R.C. 2953.08(G).” Id.

       {¶21} When reviewing a felony sentence, an appellate court must first review the

sentence to ensure the sentencing court clearly and convincingly complied with the

applicable laws. Id. A trial court's sentence would be contrary to law if, for example, it
Stark County, Case No. 2013CA00198                                                        6


were outside the statutory range, in contravention to a statute, or decided pursuant to

an unconstitutional statute. Id. In Kalish, the Supreme Court held the trial court's

decision was not contrary to law when the trial court expressly stated it considered the

purposes and principles of R.C. 2929.11, the factors listed in R.C. 2929.12, properly

applied post-release control, and the sentence was within the permissible range. Kalish

at ¶ 18.

       {¶22} If this inquiry is satisfied, an appellate court then reviews the trial court's

sentencing decision for abuse of discretion. Id. 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, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶23} Here, Appellant's sentence is within the statutory range for a third degree

felony. We find the trial court did not abuse its discretion in sentencing Appellant to the

maximum prison term based upon his criminal history and the facts demonstrated in the

record.

       {¶24} The second assignment of error is overruled.
Stark County, Case No. 2013CA00198                                         7


      {¶25} Appellant's sentence in the Stark County Court of Common Pleas is

affirmed.


By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
