[Cite as State v. Davis, 2013-Ohio-1627.]


                                        COURT OF APPEALS
                                      LICKING 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. 12 CA 59
MICHAEL P. DAVIS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 11 CR 480


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 22, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH W. OSWALT                              J. MATTHEW DAWSON
PROSECUTING ATTORNEY                           35 South Park Place, Suite 10
JUSTIN T. RADIC                                Newark, Ohio 43055
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 12 CA 59                                                      2

Wise, J.

       {¶1}   Appellant Michael P. Davis appeals from his conviction and sentence for

grand theft in the Court of Common Pleas, Licking County. The relevant facts leading to

this appeal are as follows.

       {¶2}   On September 30, 2011, appellant was indicted on one count of grand

theft, R.C. 2913.02(A)(1) and/or (A)(3), a felony of the fourth degree, and one count of

telecommunications fraud, R.C. 2913.05(A), a felony of the fourth degree. The charges

were essentially based on appellant’s conduct in a scheme to obtain money or credits

following fraudulent deposits into ATM machines.

       {¶3}   On May 16, 2012, appellant entered pleas of guilty to both of the aforesaid

counts. The trial court, upon accepting the pleas, chose to order an updated

presentence investigation report and defer sentencing to another date. However, about

one hour later, the case was reconvened after deputies informed the judge that

appellant was causing problems at the jail. See Tr. Plea and Sentencing, at 30. The

court then proceeded with sentencing over the request of appellant and his counsel to

defer the hearing. The trial court merged count two into count one and sentenced

appellant to eighteen months in prison. The trial court also sentenced appellant to a

post-release control term of two years, stating orally that this part of the decision was

based chiefly on appellant's reported conduct and threats and that the court was “just

not going to put up with this crap ***.” Tr. at 35.

       {¶4}   On July 13, 2012, appellant filed a notice of appeal, thereafter obtaining

leave from this Court for filing on a delayed basis. He herein raises the following two

Assignments of Error:
Licking County, Case No. 12 CA 59                                                        3


      {¶5}    “I.   WHETHER OR NOT THE TRIAL COURT'S SENTENCING WAS

CLEARLY AND CONVINCINGLY CONTRARY TO LAW AS IT DID NOT CONSIDER

THE STATUTORY FACTORS OF OHIO REVISED CODE SECTIONS 2929.11 AND

2929.12?

       {¶6}   “II. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION

IN THE IMPOSITION OF SENTENCING.”

                                                I.

       {¶7}   In his First Assignment of Error, appellant contends the trial court erred in

sentencing him without properly considering the statutory factors under R.C. 2929.11

and 2929.12. We disagree.

       {¶8}   R.C. 2929.11 and 2929.12 require consideration of the purposes and

principles of felony sentencing, as well as the factors of seriousness and recidivism.

See State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38. Although

the Ohio Supreme Court’s Foster decision [109 Ohio St.3d 1, 2006–Ohio–856]

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

State v. Hobby, Ashland App.No. 11 COA 41, 2012–Ohio–2420, ¶ 25, citing State v.

Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, ¶ 13. Thus, “in exercising

its discretion, a court is merely required to ‘consider’ the purposes of sentencing in R.C.

2929.11 and the statutory * * * factors set forth in R.C. 2929.12.” State v. Sutton, 8th

Dist. No. 97132, 2012–Ohio–1054, ¶ 11, quoting State v. Lloyd, 11th Dist. No. 2006–L–

185, 2007–Ohio–3013, ¶ 44. The findings of the trial court in regard to R.C. 2929.11

and 2929.12 need not be in the sentencing transcript if the findings are contained in the
Licking County, Case No. 12 CA 59                                                      4

journal entry. See State v. O’Donnell, Summit App.No. 23525, 2007-Ohio-1943, ¶ 7

(additional citations omitted).

       {¶9}   The judgment entry in the case sub judice states that prior to imposing

sentence, the trial court had considered inter alia "the purposes and principles of

sentencing" and had "balanced the seriousness and recidivism factors." See Judgment

of Conviction and Sentence, May 16, 2012, at 2. Although appellant herein asserts that

the trial court “simply was aggravated at [him] and wanted him gone,” (Appellant’s Brief

at 9), upon review we find the trial court sufficiently considered the sentencing factors

set forth in R.C. 2929.11 and 2929.12.

       {¶10} Appellant's First Assignment of Error is overruled.

                                               II.

       {¶11} In his Second Assignment of Error, appellant argues the trial court abused

its discretion in sentencing him on the merged count of grand theft. We disagree.

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

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. 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. But we have recognized that “[w]here the

record lacks sufficient data to justify the sentence, the court may well abuse its

discretion by imposing that sentence without a suitable explanation.” State v.

Firouzmandi, Licking App.No. 2006–CA–41, 2006–Ohio–5823, ¶ 52.
Licking County, Case No. 12 CA 59                                                        5


       {¶13} In the case sub judice, the sentence at issue is within the statutory range

for a fourth-degree felony. See R.C. 2929.14(A)(4). Additionally, at the sentencing

hearing the trial court considered appellant's prior criminal record and his performance

on both supervision and while he was institutionalized. Tr. at 20, 35. The court allowed

both appellant and counsel for appellant to make statements regarding sentencing. Tr.

at 17, 19, 31-33. Appellant’s counsel indicated that appellant has “a severe drug

problem,” but that he had not obtained treatment during his two prior prison stints. Tr. at

32. Appellant asserted he did not understand why he was brought back that day to

complete sentencing. Id. Appellant apologized to the court and stated that he wanted to

“be there” for his soon-to-be-born daughter. Tr. at 33.

       {¶14} Upon review, we hold the trial court did not abuse its discretion in

sentencing appellant to prison for eighteen months, with post-release control, even

though the trial court retracted its decision to obtain a PSI report. The prison term was

within the statutory ranges, the trial court considered the statutory factors for

sentencing, and the trial court duly considered appellant’s available history and criminal

record.
Licking County, Case No. 12 CA 59                                              6


      {¶15} Appellant's Second Assignment of Error is therefore overruled.

      {¶16} For the foregoing reasons, the decision of the Court of Common Pleas,

Licking County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                             JUDGES
JWW/d 0328
Licking County, Case No. 12 CA 59                                             7


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




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MICHAEL P. DAVIS                           :
                                           :
       Defendant-Appellant                 :         Case No. 12 CA 59




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

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

       Costs assessed to appellant.




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                                                              JUDGES
