[Cite as State v. Barnes, 2013-Ohio-1298.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2012-T-0049
        - vs -                                 :

TIMOTHY BARNES,                                :

                 Defendant-Appellant.          :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CR
00100.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Sean C. Buchanan, Buchanan Legal, P.O. Box 1443, Kent, OH                  44240 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Timothy Barnes, appeals the entry of sentence from the

Trumbull County Court of Common Pleas sentencing him to 15 months in prison for

three, fourth-degree felony charges of unlawful sexual conduct with a minor. For the

following reasons, the judgment is affirmed.

        {¶2}     On March 6, 2012, appellant entered a plea of guilty on three counts of

unlawful sexual conduct with a minor, fourth-degree felonies in violation of R.C.
2907.04(A) and (B)(1).       The conviction stemmed from appellant’s unlawful sexual

conduct with his daughter.

       {¶3}   On May 8, 2012, the trial court sentenced appellant to serve 15 months in

prison on each charge, to be served concurrently, after finding the victim suffered

physical harm. Appellant timely appeals this entry of sentence.

       {¶4}   During oral argument, appellant withdrew his first assignment of error.

Appellant’s remaining assignment of error states:

       {¶5}   “The court erred in sentencing Mr. Barnes to prison under O.R.C. 2929.13

for a first time nonviolent felonies [sic] of the fourth degree.”

       {¶6}   In his sole assignment of error, appellant argues the trial court erred in

sentencing him to prison.      He contends R.C. 2929.13 creates an initial mandatory

sanction of community control for felonies of the fourth degree if certain requirements

are met. Appellant argues that because he met these requirements, he should not have

been sentenced to prison.        Appellant essentially states his sentence is clearly and

convincingly contrary to law and requests the case be remanded for “sentencing

consistent with the Ohio Revised Code.”

       {¶7}   In evaluating felony sentences, this court has followed the standard of

review set forth by a plurality of the Ohio Supreme Court in State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912. See State v. Petti, 11th Dist. No. 2012-L-045, 2012-Ohio-

6130, ¶10-13; see also State v. Anderson, 11th Dist. No. 2011-G-3044, 2012-Ohio-

4203, ¶11 (“[a]lthough Kalish is a plurality opinion, we apply Kalish to appeals involving

felony sentencing until the court provides further guidance on this matter”).         The

sentence is first reviewed to determine whether the trial court complied with all

applicable rules and statutes.


                                               2
       {¶8}   Contrary to appellant’s assertions, we find the trial court acted in accord

with all applicable rules and statutes. Appellant pled guilty to three, fourth-degree felony

counts of unlawful sexual conduct with a minor and was sentenced after the H.B. 86

amendment of R.C. 2929.13.

       {¶9}   At the time of appellant’s sentence, R.C. 2929.13(B)(1)(a) stated:

       {¶10} “Except as provided in division (B)(1)(b) of this section, if an offender is

convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense

of violence, the court shall sentence the offender to a community control sanction of at

least one year’s duration if all of the following apply[.]” (Emphasis added.)

       {¶11} The statute then listed various conditions the offender must meet to

become eligible under the section. Appellant claims he met these conditions, thereby

requiring a community control sanction and prohibiting a prison term.

       {¶12} However, at the time of sentencing, the trial court was authorized to

impose a prison term under R.C. 2929.13(B)(1)(b)(ii) after finding appellant caused

physical harm to the victim while committing the offense. Here, the trial court found

appellant caused “serious psychological and physical harm” to the victim in that she

attempted suicide and was hospitalized for psychiatric care. Specifically, the trial court

found the victim has had to receive medical treatment “as a result of the extreme mental

and emotional damage caused by this defendant’s abhorrent actions.”

       {¶13} R.C. 2901.01(A)(3) defines physical harm to persons as “any injury,

illness, or other physiological impairment, regardless of its gravity or duration.” R.C.

2901.04(A)(5)(a) defines serious physical harm to persons as, inter alia, “[a]ny mental

illness or condition of such gravity as would normally require hospitalization or

prolonged psychiatric treatment.” Logic dictates that a finding of serious physical harm


                                              3
permits a trial court to impose a prison term under R.C. 2929.13(B)(1)(B)(ii), which

mandates a finding of a lower-threshold physical harm.

      {¶14} Though appellant seems now to question the validity of the trial court’s

finding on the matter of “serious psychological and physical harm,” he did not raise an

objection to the factual assertion in the state’s sentencing memorandum or during

sentencing.   See State v. Cochran, 10th Dist. No. 11AP-408, 2012-Ohio-5899, ¶51

(“[a]ppellant failed to object to her sentence on these grounds at sentencing and

therefore has waived all but plain error”); State v. Fields, 12th Dist. Nos. CA2005-03-

067 & CA2005-03-068, 2005-Ohio-6270, ¶20. Appellant has further failed to

demonstrate plain error.

      {¶15} Additionally, the 15-month prison term falls within the statutory permissible

range of fourth-degree felonies pursuant to R.C. 2929.14(A)(4). Further, the trial court

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

as the seriousness and recidivism factors found in R.C. 2929.12. The trial court found

appellant not amenable to community control due to the seriousness of the crime and

the impact on the victim, which included serious psychological and physical harm.

      {¶16} Next, it must be considered whether, in selecting the term of imprisonment

within the permissible statutory range, the trial court abused its discretion.      R.C.

2929.13(B)(1)(b)(ii) allows for a trial court, in its discretion, to impose a term of

imprisonment after finding the offender caused physical harm to the victim while

committing the offense. The court noted the victim, appellant’s biological daughter, is

receiving medical treatment, and it concluded a community control sanction would

demean the seriousness of the crime.      The trial court also considered the lack of

remorse shown by appellant, evidenced in part by his statement, which the court


                                           4
deemed “self-centered, self-serving, and unapologetic.” It cannot be concluded the trial

court abused its discretion in finding appellant not amenable to community control and

imposing a concurrent prison sentence within the statutory range for fourth-degree

felonies.

       {¶17} As a final note, the state raises an additional foundation for affirming the

trial court’s ruling, arguing the community control sanction provisions of R.C. 2929.13

are unconstitutional because they violate the separation of powers doctrine. The state

points out that this argument was contained in the state’s sentencing memorandum

before the trial court’s consideration. The state is essentially defending the judgment of

the trial court based on a theory upon which the trial court did not rely. The state has

not formally raised a cross-assignment of error pursuant to R.C. 2505.22, which is the

proper vehicle to be used for this purpose. However, the cross-assignment of error

would have only been addressed, as provided in the statute, to prevent a reversal of the

judgment in whole or in part.       As this court is affirming the sentence, the state’s

contention will not be evaluated.

       {¶18} Appellant’s sole assignment of error is without merit.

       {¶19} The judgment of the Trumbull County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




                                             5
