[Cite as State v. Drummer, 2012-Ohio-1808.]


                                      COURT OF APPEALS
                                  MUSKINGUM COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. CT2011-0039
ANDRE D. DRUMMER

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR2011-0060


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       April 23, 2012



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

MICHAEL HADDOX                                ERIC J. ALLEN
PROSECUTING ATTORNEY                          THE LAW OFFICE OF ERIC J. ALLEN LTD
ROBERT L. SMITH                               713 South Front Street
ASSISTANT PROSECUTOR                          Columbus, Ohio 43206
27 North Fifth Street
Zanesville, Ohio 43702
Muskingum County, Case No. CT2011-0039                                                    2

Wise, J.

       {¶1}   Defendant-Appellant Andre Drummer appeals his sentence on one count

of forgery and one count of theft by deception following a plea in the Muskingum County

Court of Common Pleas.

       {¶2}   Plaintiff-Appellee is the State of Ohio.

                        STATEMENT OF THE CASE AND FACTS

       {¶3}    On March 9, 2011, Appellant Andre Drummer was indicted on several

charges relating to the presentment of forged checks at the local Pick & Save in

Zanesville, Ohio.

       {¶4}   Ultimately, at his change of plea hearing on July 5, 2011, Appellant pled

guilty to one count of forgery (uttering) and one count of theft by deception, both

felonies of the fifth degree.

       {¶5}   As a part of his plea and prior to his sentencing, the Prosecutor and

Appellant's defense attorney came to an agreement of a recommendation of seven (7)

months in prison on the charges. At the change of plea hearing after Appellant changed

his pleas to guilty, a presentence investigation was ordered and a date for sentencing

was set for August 15, 2011.

       {¶6}   At sentencing, Appellant’s counsel informed the trial court that Appellant

accepted responsibility for his actions, was very remorseful, and was prepared to

change his life to be a better person. Appellant’s counsel also advised the trial court that

Appellant is married and suffers from kidney problems, for which he sees a doctor.

Finally, counsel made the trial court aware of the fact that Appellant's co-defendant on
Muskingum County, Case No. CT2011-0039                                                       3


the case, who was charged with similar charges, also received a seven (7) month prison

sentence for his role in the crimes charged.

       {¶7}   The trial court sentenced Appellant to ten (10) months in prison on each of

the charges to be served concurrently and with credit for time served. Additionally, the

trial court ordered Appellant to pay restitution to the Pick & Save.

       {¶8}   Defendant-Appellant now appeals, assigning the following error for review:

                                ASSIGNMENT OF ERROR

       {¶9}   “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

MORE THAN THE AGREED UPON SENTENCE OF SEVEN MONTHS.”

                                               I.

       {¶10} In his sole Assignment of Error, Appellant argues that the trial court erred

in imposing the sentence herein. We disagree.

       {¶11} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this

first step “is satisfied,” the second step requires the trial court's decision be “reviewed

under an abuse-of-discretion standard.” Id.

       {¶12} The relevant sentencing law is now controlled by the Ohio Supreme

Court's decision in State v. Foster, i.e. “ * * * trial courts have full discretion to impose a

prison sentence within the statutory range and are no longer required to make findings
Muskingum County, Case No. CT2011-0039                                                  4


or give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” 109 Ohio St.3d 1, 30, 2006-Ohio-856 at ¶ 100, 845 N.E.2d 470, 498.

       {¶13} In the first step of our analysis, we review whether the sentence is

contrary to law. In the case sub judice, Appellant was sentenced on one count of forgery

and one count of theft by deception, both fifth degree felonies.

       {¶14} Upon conviction for a felony of the fifth degree, the potential sentence that

the trial court can impose is a mandatory prison term of six, seven, eight, nine, ten,

eleven or twelve months.

       {¶15} Here, as set forth above, Appellant was sentenced to a term of ten months

on each count, to run concurrently.

       {¶16} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentences were within the

statutory sentencing range.

       {¶17} Furthermore, the record reflects that the trial court considered the

purposes and principles of sentencing and the seriousness and recidivism factors as

required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised

Appellant regarding post release control.

       {¶18} We therefore find that the sentences are not clearly and convincingly

contrary to law.

       {¶19} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.

Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.
Muskingum County, Case No. CT2011-0039                                                 5


       {¶20} We find the trial court properly considered the purposes and principles of

sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.

2929.12, along with all other relevant factors and circumstances. While Appellant may

disagree with the weight given to these factors by the trial judge, Appellant's sentence

was within the applicable statutory range for felonies of the fifth degree and therefore,

we have no basis for concluding that it is contrary to law.

       {¶21} Similarly, the trial court's consecutive sentence cannot be said to be an

abuse of discretion given the circumstances here. See Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219 (an abuse of discretion “implies that the court's attitude is

unreasonable, arbitrary or unconscionable”).

       {¶22} The Supreme Court of Ohio held in State v. Hodge, 128 Ohio St.3d 1,

2010-Ohio-6320, “[f]or all the foregoing reasons, we hold that the decision of the United

States Supreme Court in Oregon v. Ice [ (2009), 555 U.S. 160, 129 S.Ct. 711, 172

L.Ed.2d 517], does not revive Ohio's former consecutive-sentencing statutory

provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in

State v. Foster. Because the statutory provisions are not revived, trial court judges are

not obligated to engage in judicial fact-finding prior to imposing consecutive sentences

unless the General Assembly enacts new legislation requiring that findings be made.”

See, State v. Fry, Delaware App. No. 10CAA090068, 2011-Ohio-2022 at ¶ 16–17.

       {¶23} We further note that the negotiated agreement Appellant signed on July 5,

2011, acknowledged that the trial court was not bound by the prosecutor's

recommendation. The trial court was not a party to the agreement between the

Appellant and the State.
Muskingum County, Case No. CT2011-0039                                                  6


       {¶24} “A trial court does not err by imposing a sentence greater than ‘that

forming the inducement for the defendant to plead guilty when the trial court forewarns

the defendant of the applicable penalties, including the possibility of imposing a greater

sentence than that recommended by the prosecutor.’ ” State ex rel Duran v. Kelsey,

106 Ohio St.3d 58, 2006-Ohio-3674; State v. Buchanan, 154 Ohio App.3d 250, 2003-

Ohio-4772, 796 N.E.2d 1003, ¶ 13, quoting State v. Pettiford (Apr. 22, 2002), Fayette

App. No. CA2001-08-014.

       {¶25} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor.

       {¶26} Appellant’s sole Assignment of Error is overruled.

       {¶27} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.



By: Wise, J.

Hoffman, J. and

Farmer, J. concur

                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                  JUDGES
JWw/d 0329
Muskingum County, Case No. CT2011-0039                                          7


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
ANDRE D. DRUMMER                         :
                                         :
       Defendant-Appellant               :         Case No. CT2011-0039




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                            JUDGES
