[Cite as State v. Young, 2011-Ohio-3528.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-11-02

        v.

GARY R. YOUNG,                                            OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 10-CR-0056

                                      Judgment Affirmed

                             Date of Decision:   July 18, 2011




APPEARANCES:

        Howard A. Elliott for Appellant

        Jonathan K. Miller for Appellee
Case No. 16-11-02



SHAW, J.

      {¶1} Defendant-appellant, Gary Young (“Young”), appeals the February 1,

2011 judgment of the Wyandot County Court of Common Pleas sentencing him to

seventeen months in prison.

      {¶2} On December 16, 2010, a Wyandot County Grand Jury indicted

Young on four counts of aggravated trafficking in drugs, each count with a

specification that the offense was committed within the vicinity of a juvenile. All

of these charges are classified as felonies of the third degree. Young was also

indicted on one count of intimidation of a crime witness, also a felony of the third

degree.

      {¶3} On January 5, 2011, Young pled guilty to two amended counts of

aggravated trafficking in drugs, both felonies of the fourth degree. The remaining

charges and specifications listed in the indictment were dismissed.

      {¶4} On January 31, 2011, Young appeared for sentencing. The trial court

imposed a sentence of seventeen months in prison on each count to be served

concurrently. Young’s sentence was journalized by the trial court in its February

1, 2011 Judgment Entry.

      {¶5} Young now appeals, asserting the following assignment of error.




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                                  ASSIGNMENT OF ERROR

        THE RECORD DEMONSTRATES BY CLEAR AND CONVINCING
        EVIDENCE THAT THE SENTENCE IS UNSUPPORTED BY THE
        RECORD AND THE TRIAL COURT FAILED TO CONSIDER THE
        REHABILITATIVE PURPOSES OF FELONY SENTENCING
        UNDER OHIO REVISED CODE § 2929.11 IN IMPOSING
        SENTENCE UPON THE APPELLANT WHO HAD NO PREVIOUS
        FELONY CONVICTIONS AND EXPRESSED A DESIRE FOR
        SUBSTANCE ABUSE COUNSELING.

        {¶6} Initially, we note that an appellate court must conduct a meaningful

review of the trial court’s sentencing decision. State v. Daughenbaugh, 3rd Dist.

No. 16-07-07, 2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-

0007, 2004-Ohio-1181. A meaningful review means “that an appellate court

hearing an appeal of a felony sentence may modify or vacate the sentence and

remand the matter to the trial court for re-sentencing if the court clearly and

convincingly finds that the record does not support the sentence or that the

sentence is otherwise contrary to law.” Daughenbaugh, 2007-Ohio-5774, at ¶ 8,

citing Carter, 2004-Ohio-1181, at ¶ 44; R.C. 2953.08(G).1 Clear and convincing

evidence is “[t]he measure or degree of proof that will produce in the mind of the

trier of fact a firm belief or conviction as to the allegations sought to be

established. It is intermediate, being more than a mere preponderance, but not to

1
  We note that the Supreme Court of Ohio’s plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, establishes a two-part test utilizing an abuse of discretion standard for
appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s
precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note
that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test.

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Case No. 16-11-02



the extent of such certainty as required beyond a reasonable doubt as in criminal

cases. It does not mean clear and unequivocal.” In re Estate of Haynes (1986), 25

Ohio St.3d 101, 103-04, 495 N.E.2d 23.

        {¶7} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

¶ 97, the Supreme Court of Ohio stated that “[t]rial courts [now] 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.” Id. at paragraph seven of the

syllabus.

        {¶8} Although the trial court is given full discretion in sentencing pursuant

to Foster, the trial court must still consider the overriding purposes of felony

sentencing, which are to protect the public from future crimes by the offender and

to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd Dist. No. 6-07-17,

2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11, 2007-Ohio-5767,

¶ 27.    Additionally, “[a] sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing * * *

commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).



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       {¶9} Here, Young concedes that the sentence imposed by the trial court was

within the statutory range for the offense for which he was convicted. See R.C.

2929.14(A)(4) (stating that a seventeen month prison term is within the statutory

range for a sentence on a fourth degree felony conviction). However, Young

asserts two main points in his contention that the sentence imposed by the trial

court is not supported by clear and convincing evidence. First, Young maintains

that this is his first felony conviction, despite the fact that he has a lengthy

criminal past involving several misdemeanor offenses. Second, Young argues that

his prior criminal conduct, which spans over the last three decades, can be

attributed to his history of substance abuse. Young contends that the trial court

did not give adequate consideration to his statement on the record that he wanted

to get treatment for his addiction so that he could live a productive life, free from

committing crime.

       {¶10} Both at the sentencing hearing and in the judgment entry of

conviction and sentence, the trial court noted on the record that it had considered

the sentencing statutes and relevant case law. Contrary to Young’s assertions, the

record demonstrates that the trial court gave due consideration to the nature of

Young’s criminal history and his desire to get treatment for his addiction.

Specifically, the trial court stated the following at the sentencing hearing, which is

also incorporated into its sentencing judgment entry:

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       The defendant has a juvenile and criminal history that shows
       that he has not been a law abiding person since approximately
       age 14. Defendant was delinquent and unruly most of his teen
       years. As an adult defendant had numerous convictions for
       OVIs, carrying concealed weapons, assaults, and obstructing
       official business. The last time Defendant was before this Court
       in 2006, the case involved a short pursuit by a Deputy and
       Vicodin pills. Now the Defendant is back before this Court in
       two cases involving the sale of illegal drugs. Defendant justifies
       his sale operation by saying it was a way to make money since he
       had quit his job. Apparently Defendant had no concern for the
       addicts and the addictions he helped to fuel with his business
       and in this respect Defendant represents a threat to public
       safety. Defendant has shown little regard for the law. The
       Court has little confidence that the Defendant will suddenly be
       able to flip a switch and become a law abiding citizen.
       Defendant has had numerous opportunities for treatment * * *.
       It is disturbing that the Defendant wants treatment, wants it to
       be imposed by the Court and not treatment that he, himself, has
       sought.

(J.E. Feb. 1, 2011 at 4).

       {¶11} Our review of the record reveals that the sentence imposed by the

trial court is supported by clear and convincing evidence. Each sentence was

within the statutory range for sentencing.      Further, the record demonstrates

Young’s criminal history began at age fourteen, continued as an adult and resulted

in numerous misdemeanor convictions. The record also demonstrates Young’s

pattern of drug abuse related to the instant offenses, which he openly

acknowledged, as well as the facts of the instant case. Therefore, we find that the

sentence was supported by law and the record. Furthermore, we note that even


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though Young disagrees with the weight the trial court accorded his testimony as it

related to his desire to seek treatment, it is well within the discretion of the trial

court to assess the credibility of witness and to weigh his or her testimony

accordingly. Thus, the trial court did not err in sentencing Young in the manner

that it did, and the assignment of error is overruled.

       {¶12} For all these reasons, the judgment of the Wyandot County Court of

Common Pleas is affirmed.

                                                                 Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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