         [Cite as State v. White, 2013-Ohio-4225.]
                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-130114
                                                         TRIAL NO. B-1205509
        Plaintiff-Appellee,                          :
                                                            O P I N I O N.
  vs.                                                :

KENDALL WHITE,                                       :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 27, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



D E W INE , Judge.

         {¶1} Kendall White was convicted of felonious assault and sentenced to six years

in prison. He argues on appeal that his sentence should be reversed because it was

excessive and constituted an abuse of the trial court’s discretion. We disagree both

about the standard of review and about the ultimate issue. The appropriate standard to

review a felony sentence is the one set forth by the legislature in R.C. 2953.08(G)(2): in

this case, whether “we clearly and convincing find[] * * * that the sentence is * * *

contrary to law.” We do not so find, and, therefore, affirm the judgment of the trial

court.

                                            I.

         {¶2} Kendall White approached Brandy Moore at a McDonald’s restaurant and

demanded a ride. When Ms. Moore refused, Mr. White punched her in the face. The

punch broke her nose, fractured the bone of her left eye socket and caused bumps under

her eyelid.    She underwent surgery to repair her nose, but she still has difficulty

breathing and may need another surgery.

         {¶3} Mr. White pleaded guilty to a charge of felonious assault, a second-degree

felony. Several weeks later, the trial court held a sentencing hearing. In mitigation, Mr.

White and his attorney emphasized his history of psychological problems. The trial

court engaged in a lengthy discussion with Mr. White, during which it noted Mr. White’s

long criminal history dating back over 30 years, including numerous violent offenses. At

the conclusion of the hearing, the trial court imposed a prison sentence of six years. This

appeal followed.

         {¶4} Although Mr. White acknowledges that his sentence is within the statutory

range, he argues that the trial court abused its discretion by failing to properly consider

mitigating factors indicating that he showed genuine remorse, took full responsibility for


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his conduct by entering a plea, did not possess a weapon during the assault, and

acknowledged a need to address his underlying mental health issues.

                                            II.

       {¶5} We disagree with Mr. White’s assertion that we should review his sentence

for an abuse of discretion. The legislature has been explicit that “[t]he appellate court’s

standard for review [of a felony sentence] is not whether the sentencing court abused

its discretion.” R.C. 2953.08(G)(2). Rather, the standard is the one set forth by

statute:

               The court hearing an appeal [of a felony sentence] shall review

       the record, including the findings underlying the sentence or

       modification given by the sentencing court.

               The appellate court may increase, reduce, or otherwise modify a

       sentence that is appealed under this section or may vacate the sentence

       and remand the matter to the sentencing court for resentencing. The

       appellate court’s standard for review is not whether the sentencing

       court abused its discretion. The appellate court may take any action

       authorized by this division if it clearly and convincingly finds either of

       the following:

               (a) That the record does not support the sentencing court’s

                  findings * * *;

               (b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2).

       {¶6} True, we have in the past applied the abuse of discretion standard urged by

Mr. White. That standard was provided for by a plurality of the Supreme Court of Ohio

in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Kalish



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approach asks (1) whether the sentence is clearly and convincingly contrary to law, i.e.

whether the trial court adhered to the applicable rules and statutes in imposing the

sentence, and (2) if it is not contrary to law, whether the sentence nevertheless

constitutes an abuse of discretion. Id. at ¶ 26. The Kalish plurality opinion was an

outgrowth of the Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470, which declared unconstitutional portions of Ohio’s felony

sentencing statutes that required judges to make certain findings before imposing

maximum, consecutive, or more than the minimum sentences. The Kalish plurality is

best understood as operating from the premise that because the findings requirements

were unconstitutional and excised from the law, it also made sense to remove the

standard of review that the legislature had crafted in conjunction with the findings

requirements.

       {¶7} Subsequent to Kalish, however, the United States Supreme Court made

clear that it was constitutionally permissible to require judicial fact-finding as a

prerequisite for the imposition of consecutive sentences. See Oregon v. Ice, 555 U.S.

160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The Ohio Supreme Court subsequently

acknowledged that the legislature could reenact consecutive sentence finding

requirements, State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶

36, and the legislature responded by enacting 2011 Am.Sub.H.B. No. 86 (“H.B. 86”).

The new legislation, effective September 30, 2011, revived the judicial fact-finding

requirement for consecutive sentences, but did not revive the requirement for maximum

and more than minimum sentences.

       {¶8} Prior to the enactment of H.B. 86, the portions of Ohio’s sentencing laws

found unconstitutional in Foster remained part of the Revised Code. H.B. 86 cleaned up

the Code by removing the provisions found unconstitutional in Foster, but not reenacted



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in H.B. 86. 2011 Am.Sub.H.B. No. 86, Section 2. Thus, the provisions requiring findings

for maximum and more than minimum sentences that the legislature did not intend to

revive were explicitly repealed. Id. At the same time, H.B. 86 specifically reenacted the

standard of review provisions of R.C. 2953.08(G)(2) that had been rejected by the Kalish

plurality. 2011 Am.Sub.H.B. No. 86, Section 1.

       {¶9} We presume the legislature knew what it was doing when it reenacted

the R.C. 2953.08(G)(2) standard of review. And we cannot justify applying an abuse of

discretion standard where the legislature has explicitly told us that the standard of

review is not an abuse of discretion. Thus, henceforth, we will apply the statutory

standard rather than the Kalish plurality framework to our review of felony

sentences.

       {¶10} Our decision today is consistent with the approach of the other Ohio

appellate districts that have directly considered the issue since the enactment of H.B. 86.

See State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 10 (“By reviving

the requirement for findings as a predicate for imposing consecutives, the ground

offered by Kalish for rejecting the standard of review set forth in former R.C.

2953.08—that it could not stand as a standard of review for a statute that improperly

required findings of fact before imposing consecutive sentences—was nullified.”);

State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525 (concluding that the

statutory standard applies to all felony sentences, not just those where findings are

required); State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-

3315, ¶ 6 (“[F]rom this day forward, rather than continue to apply the two-step approach

as provided by Kalish, we find” that the standard in R.C. 2953.08(G)(2) applies to all

felony sentences); State v. Worth, 10th Dist. Franklin No. 10AP-1125, 2012-Ohio-666, ¶

83 (applying statutory test and noting that, as a plurality opinion, Kalish is of limited



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precedential value); State v. Blair-Walker, 11th Dist. Portage No. 2012-P-0125, 2013-

Ohio-4118 (“[W]e no longer apply the two-step analysis contained in the 2008 Kalish

case to defendants sentenced under H.B. 86’s enactment.          Rather, we apply R.C.

2953.08(G) and the clear and convincing standard”); see also State v. Fletcher, 3rd Dist.

Auglaize No. 2-13-02, 2013-Ohio-3076 (continuing to apply R.C. 2953.08 after Kalish).

                                             III.

       {¶11}    Having settled upon the appropriate standard of review, we now apply

the standard to Mr. White. Under R.C. 2953.08(G)(2), we may only modify or vacate

Mr. White’s sentence if we “clearly and convincingly find” that either (1) the record does

not support the mandatory sentencing findings, or (2) that the sentence is “otherwise

contrary to law.” In this case, no findings were made and Mr. White does not argue that

any were required, so our review is simply whether we clearly and convincingly find that

the sentence is otherwise contrary to law.

       {¶12}    “Although Kalish no longer provides the framework for reviewing felony

sentences, it does provide * * * guidance for determining whether a sentence is clearly

and convincingly contrary to law.” State v. Lee, 12th Dist. Butler No. CA2012-09-182,

2013-Ohio-3404, ¶ 10, quoting A.H. at ¶ 10. In Kalish, the plurality found that a

sentence was not clearly and convincingly contrary to law where the trial court had

considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the

seriousness and recidivism factors contained in R.C. 2929.12, properly applied

postrelease control and imposed a sentence within the statutory range. See Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 18; see also A.H. at ¶ 10.

       {¶13}    Here, Mr. White’s six-year sentence fit comfortably within the

permissible range for a second-degree felony. Further, the record indicates that the

trial court properly considered the applicable sentencing provisions before imposing the



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sentence. In sentencing Mr. White, the court stressed his violent history and the fact

that despite numerous stints in prison he continued to “hurt people.” It noted that

he was likely to continue to commit crimes and that a prison term was necessary to

protect the public. The court deliberated upon a sentence to a community-based

correctional facility, but determined that he needed a more severe sanction. The

court also considered the serious physical harm done to the victim. The trial court

heard Mr. White speak about the progress he made after receiving medication for his

mental health conditions and noted his apparent remorse.          The court properly

weighed these mitigating factors against his lengthy history of violent conduct in

determining the appropriate sentence.

       {¶14}   We do not find that Mr. White’s sentence was clearly and

convincingly contrary to law. The sole assignment of error is overruled, and the

judgment of the trial court is affirmed.



H ENDON , P.J., and C UNNINGHAM , J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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