[Cite as State v. Mowery, 2011-Ohio-1709.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   W. Scott Gwin, P.J.
                                              :   John W. Wise, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 10-CA-26
                                              :
                                              :
BRANDON MOWERY                                :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Fairfield County
                                                   Court of Common Pleas Case No.
                                                   2009-CR-0259

JUDGMENT:                                          Affirmed In Part, Reversed and
                                                   Remanded In Part

DATE OF JUDGMENT ENTRY:                            April 4, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GREGG MARX                                         ANDREW T. SANDERSON
Assistant Prosecuting Attorney                     Burkett & Sanderson, Inc.
201 South Broad Street                             21 West Church Street
Fourth Floor                                       Suite 201
Lancaster, Ohio 43130                              Newark, Ohio 43055
[Cite as State v. Mowery, 2011-Ohio-1709.]


Edwards, J.

        {¶1}    Defendant-appellant, Brandon Mowery, appeals from the April 22, 2010,

Judgment Entry of the Fairfield County Court of Common Pleas. Plaintiff-appellee is the

State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    On August 7, 2009, the Fairfield County Grand Jury indicted appellant on

one count of aggravated arson in violation of R.C. 2909.02(A)(1), a felony of the first

degree, one count of aggravated arson in violation of R.C. 2909.02(A)(3), a felony of

the first degree, one count of arson in violation of R.C. 2909.03(A)(1), a felony of the

fourth degree, and one count of retaliation in violation of R.C. 2921.05(A), a felony of

the third degree. Appellant also was indicted on one count of intimidation in violation of

R.C. 2921.03, a felony of the third degree, one count of trafficking in drugs in violation of

R.C. 2925.03(A)(1) and R.C. 2925.03(C)(6)(a), a felony of the fourth degree, and one

count of aggravated menacing in violation of R.C. 2903.21, a felony of the fifth degree.

At his arraignment on August 24, 2009, appellant entered a plea of not guilty to the

charges contained in the indictment.

        {¶3}    Thereafter, on March 23, 2010, appellant withdrew his former not guilty

plea and entered a plea of guilty to one count of complicity to commit arson and one

count each of retaliation and menacing. The remaining counts were dismissed. As

memorialized in a Judgment Entry filed on April 22, 2010, appellant was sentenced to

18 months on the arson count, to five years on the retaliation count and to six months

on the charge of aggravated menacing. The trial court ordered the sentences to run
Fairfield County App. Case No. 10-CA-26                                                   3


consecutively to one another and to a previously imposed sentence in another matter.

Appellant also was ordered to pay restitution to the victim.

       {¶4}   Appellant now raises the following assignments of error on appeal:

       {¶5}   “I.   THE   TRIAL    COURT       COMMITTED        HARMFUL       ERROR      IN

SENTENCING THE DEFENDANT-APPELLANT TO CONSECUTIVE SENTENCES

HEREIN.

       {¶6}   “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN IMPOSING

CONSECUTIVE SENTENCES FOR THE OFFENSES OF AGGRAVATED MENACING

AND RETALIATION IN THE PROCEEDINGS BELOW.”

                                                 I

       {¶7}   Appellant, in his first assignment of error, argues that the trial court erred

in sentencing him to consecutive sentences. Appellant specifically contends that the trial

court failed to make the necessary findings for imposing consecutive sentences and that

where any findings were made by the trial court, the findings were not supported by the

record.

       {¶8}   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, and discussed the affect of the Foster decision on

felony sentencing. The Kalish Court explained, that having severed the judicial fact-

finding portions of R.C. 2929.14 in Foster, “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 at paragraphs 1 and 11, citing Foster at paragraph 100. See also,
Fairfield County App. Case No. 10-CA-26                                                    4

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306. “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).” Kalish at paragraph 12. However, although

Foster eliminated mandatory judicial fact finding, it left intact R.C. 2929.11 and 2929.12,

and the trial court must still consider these statutes. Kalish at paragraph 13. See also,

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1.

       {¶9}    “Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised

judicial fact-finding portions of the sentencing scheme, an appellate court remains

precluded from using an abuse-of-discretion standard of review when initially reviewing

a defendant's sentence. Instead, the appellate court must 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).” Kalish at

paragraph 14.

       {¶10} In reviewing felony sentences and applying Foster to the remaining

sentencing statutes, appellate courts must use a two-step approach. “First, they must

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. If this first prong is satisfied, the trial court's decision in imposing the

term of imprisonment shall be reviewed under an abuse of discretion standard.” Id. at

paragraph 4.

       {¶11} Appellant cites to Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, in

support of his argument that the trial court was required to make findings prior to
Fairfield County App. Case No. 10-CA-26                                                5

imposing consecutive sentences. However, recently,        in State v. Hodge, 128 Ohio

St.3d, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme Court stated in relevant

part, as follows: “we hold that the decision of the United States Supreme Court in

Oregon v. Ice 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.” Id

at paragraph 39.

       {¶12} We find that appellant's sentence is not contrary to law. The trial court

expressly stated in its April 22, 2010 Judgment Entry that it considered the overriding

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

and recidivism factors set forth in 2929.12. Furthermore, appellant's sentences are

within the permissible statutory ranges. Finally, appellant was properly placed on three

years of mandatory post-release control pursuant to R.C. 2967.28(B)(3) for retaliation, a

felony of the third degree.

       {¶13} Having satisfied step one, we next consider whether the trial court abused

its discretion in selecting the sentence. Kalish, at ¶ 4. An abuse of discretion is “more

than an error of law or judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,

450 N.E.2d 1140.

       {¶14} We find that the trial court did not abuse its discretion. The victim in the

case sub judice, Alisha Snoke, was a caseworker for Job and Family Services. Snoke
Fairfield County App. Case No. 10-CA-26                                                 6


was the caseworker for a case involving appellant’s and Tara Casto's children. Casto

was appellant’s co-defendant.     Appellant and Casto convinced a third party to throw a

brick through Snoke’s car while it was parked at Snoke’s house at night after dark. After

throwing the brick, the man then tossed a lit milk carton containing gasoline through the

car window, causing a large fire. At the time, the car was parked in the driveway close

to the garage and close to a bedroom where Snoke’s children were located. At the

sentencing hearing, Snoke testified that the incident affected her family’s emotional and

physical well-being and caused her to fear for the safety of her family and property.

       {¶15} Based on the foregoing, we find that the trial court did not abuse its

discretion in imposing consecutive sentences. The trial court’s decision was not

arbitrary, unreasonable or unconscionable.

       {¶16} Appellant’s first assignment of error is, therefore, overruled.

                                                 II

       {¶17} Appellant, in his second assignment of error, argues that the trial court

erred in imposing consecutive sentences for the offenses of aggravated menacing and

retaliation because the two are allied offenses of similar import.

       {¶18} As an initial matter, we note that the State maintains that appellant waived

his right to challenge whether his crimes were allied offenses by pleading guilty.

However, the Ohio Supreme Court considered this issue recently in State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, and concluded that a

defendant's plea to multiple counts does not affect the trial court's duty to merge allied

offenses at sentencing nor bar appellate review of the sentence. Id. at ¶ 26-29.

       {¶19} R.C. 2941.25 reads as follows:
Fairfield County App. Case No. 10-CA-26                                               7


       {¶20} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

       {¶21} “(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

       {¶22} In State v. Rance, 85 Ohio St.3d 632, 636, 1999-Ohio-291,710 N.E.2d

699, the Ohio Supreme Court held that offenses are of similar import if the offenses

“correspond to such a degree that the commission of one crime will result in the

commission of the other.” Id. The Rance court further held that courts should compare

the statutory elements in the abstract. Id.

       {¶23} In 2008,        the Ohio Supreme Court instructed as follows in State v.

Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, syllabus:

       {¶24} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case, but are not required to find an

exact alignment of the elements. Instead, if, in comparing the elements of the offenses

in the abstract, the offenses are so similar that the commission of one offense will

necessarily result in the commission of the other, then the offenses are allied offenses

of similar import.”
Fairfield County App. Case No. 10-CA-26                                                     8

       {¶25} According to Cabrales, if the sentencing court has initially determined that

two crimes are allied offenses of similar import, the court then proceeds to the second

part of the two-tiered test and determines whether the two crimes were committed

separately or with a separate animus. Id. at 57, 886 N.E.2d 181, citing State v.

Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.

       {¶26} However, on December 29, 2010, subsequent to the briefing in the

present appeal, the Ohio Supreme Court decided State v. Johnson, --- N.E.2d ----,

2010-Ohio-6314, which specifically overruled the 1999 Rance decision. The Court held:

“When determining whether two offenses are allied offenses of similar import subject to

merger under R.C. 2941.25, the conduct of the accused must be considered.” Id., at the

syllabus.

       {¶27} In the case sub judice, the two counts in question apparently stemmed

from the same incident on December 14, 2008, and both involved the same victim.

Because the guilty plea hearing in this matter predated Johnson, the trial court was not

afforded the opportunity to review the pertinent issues in the allocution portion of

appellant's plea hearing transcript of April 19, 2010. We note our review on appeal is

limited to those materials in the record that were before the trial court. See, e.g., State v.

DeMastry, 155 Ohio App.3d 110, 119-120, 2003-Ohio-5588, 799 N.E.2d 229, citing

State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500.

       {¶28} In the interest of justice, appellant's second assignment of error is

sustained to the extent that the matter will be remanded for a new sentencing hearing to

analyze appellant's conduct in the offenses at issue pursuant to Johnson and, if

necessary, to review potential merger of the offenses for sentencing.
Fairfield County App. Case No. 10-CA-26                                                  9


      {¶29} Accordingly, the judgment of the Fairfield County Court of Common Pleas

is affirmed in part and reversed in part and this matter is remanded to the trial court for

further proceedings.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                JUDGES

JAE/d0118
[Cite as State v. Mowery, 2011-Ohio-1709.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
BRANDON MOWERY                                   :
                                                 :
                       Defendant-Appellant       :       CASE NO. 10-CA-26




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

judgment of the Fairfield County Court of Common Pleas is affirmed in part and

reversed and remanded in part. Costs assessed to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
