[Cite as State v. Hoffer, 2014-Ohio-595.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. William B. Hoffman, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 13CA102
TERRY HOFFER, JR.                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Court of Common Pleas, Case No.
                                                   2013CR00132

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            February 18, 2014


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

KENNETH W. OSWALT                                  ASHLEY RUTHERFORD STARLING
Licking County Prosecutor                          4653 Trueman Blvd., Ste. 100
By: Paula M. Sawyers                               Hilliard, OH 43026
20 S.Second Street, 4th Floor
Newark, OH
[Cite as State v. Hoffer, 2014-Ohio-595.]


Gwin, J.,

        {¶1}     Appellant appeals the October 16, 2013 judgment of conviction and

sentence of the Licking County Court of Common Pleas sentencing him to eighteen (18)

months in prison. Appellee is the State of Ohio.

                                            Facts & Procedural History

        {¶2}     On March 8, 2013, appellant Terry Hoffer, Jr. was indicted on one count of

felonious assault pursuant to R.C. 2903.11(A)(1), one count of endangering children

pursuant to R.C. 2919.22(B)(1) & (E)(2)(d), a felony of the third degree, and one count

of endangering children pursuant to R.C. 2919.22(A) & (E)(2)(c), a felony of the second

degree.      The State of Ohio alleged that a child, S.C., the daughter of appellant’s

girlfriend, suffered numerous injuries including second and third degree burns to her

fingers, chest, and shoulders, and bruises to her ears, legs, and buttock. Further, that

appellant was the sole caretaker of the child when the injuries occurred and appellant, a

certified paramedic, failed to seek medical attention for the child’s injuries. The injuries

were reported by S.C.’s day care.

        {¶3}     On August 6, 2013, appellant filed a motion to continue for change of plea

and sentencing. In this motion, appellant specifically requested that a pre-sentence

investigation report (“PSI”) be prepared. The trial court granted appellant’s motion to

continue on the same day and ordered the requested PSI. The trial court scheduled the

change of plea and sentencing hearing for September 30, 2013. On September 27,

2013, appellant filed a motion to continue the plea and sentencing hearing, indicating

the request was being made because added information was needed to complete the

PSI report. Appellant filed an additional motion to continue on September 30, 2013
Licking County, Case No. 13CA102                                                       3


stating appellant was hospitalized.    The trial court granted appellant’s motions to

continue on September 30, 2013 and continued the plea and sentencing hearing to

October 16, 2013.

      {¶4}   On October 16, 2013, appellant appeared with trial counsel for his change

of plea and sentencing hearing. Appellant signed an entry of guilty plea form. The form

stated that “I am entering this plea as a result of negotiated plea agreement reached by

my attorney on my behalf and the Licking County Prosecutor’s. This agreement is as

follows: in exchange for defendant’s plea of guilty to Count 2 of the indictment the

prosecutor agrees to dismiss Counts 1 and 3.” The State of Ohio filed a motion to

amend the indictment to dismiss Counts 1 and 3. The trial court granted the State of

Ohio’s motion during the October 16, 2013 hearing.

      {¶5}   At the beginning of the hearing, the trial court reviewed with appellant his

understanding of the negotiated plea. Appellant confirmed it was his understanding of

the agreement that he would plead guilty to one charge of endangering children, a

felony of the third degree, in exchange for the State of Ohio dismissing one count of

felonious assault and one count of child endangering, a felony of the second degree.

The trial court questioned appellant and appellant stated no one had promised him

anything except the dismissal of the felonious assault and second child endangering

charge in exchange for his guilty plea. Appellant confirmed he had sufficient time to

consult with his attorney, reviewed the legal documents in the case, and had sufficient

time to think about his decision. During the plea hearing, the trial court inquired of

appellant and appellant affirmed that he understood the potential penalties included a

maximum prison term of thirty-six (36) months and, if he was sent to prison, he would
Licking County, Case No. 13CA102                                                       4


be subject to a period of post-release control for up to three years as determined by the

Adult Parole Authority. The trial court accepted appellant’s plea of guilty and dismissed

the other two counts of the indictment.

      {¶6}   The trial court proceeded to the sentencing hearing.        The prosecutor

stated appellant had no criminal history and thus the State of Ohio was “in agreement

with community control if that’s what the Court chooses to do at this time.” Appellant

and trial counsel spoke on appellant’s behalf. The victim’s mother spoke at the hearing

and also submitted a written victim impact statement.      The trial court stated that it

considered the victim impact statement, statements of the parties, overriding purposes

of felony sentencing, and the relevant seriousness and recidivism factors. The trial

court found that because of those factors, and “because there’s no PSI, I am required to

impose a prison sentence.     I am.   That’s the law.   He did not appear for his PSI

interview. One was not prepared.”

      {¶7}   Counsel for appellant stated appellant did participate in the PSI interview,

but wanted to be accompanied by counsel to complete the interview and that, due to

appellant’s hospitalization and trial counsel’s schedule, nothing had been done to

complete the interview. Trial counsel for appellant indicted he contacted the judge’s

chambers and his staff notified him the trial court judge had enough information to go

forward with sentencing. After the trial court imposed the prison sentence, counsel for

appellant requested a continuance so the PSI could be completed.          The trial court

denied the motion for continuance and stated the lack of a PSI was only one of the

reasons he was imposing a prison sentence. The trial court stated, “even if I had a PSI

based on what I know about this case, I believe a prison sentence is warranted * * *”
Licking County, Case No. 13CA102                                                         5


and noted the significant injuries of the victim and the lack of seriousness with which

appellant was taking the matter. Appellant’s trial court counsel stated he was not aware

a PSI had not been completed until the morning of the plea and sentencing hearing,

reiterated his conversations with the court’s staff, and noted any shortcomings were at

least partially due to appellant’s hospitalization for kidney issues.

       {¶8}   In a judgment entry of conviction and sentence dated October 16, 2013,

the trial court stated the record, statements of the parties, victim impact statements, the

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

2929.12 were taken into consideration prior to imposing sentence. The trial court found

a prison term was consistent with the purposes and principles under R.C. 2929.11 and

sentenced appellant to eighteen (18) months in prison.

       {¶9}   Appellant appeals the October 16, 2013 judgment entry of conviction and

sentence and assigns the following as error:

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

EIGHTEEN MONTHS IN PRISON INSTEAD OF COMMUNITY CONTROL.

       {¶11} II. THE COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT’S OCTOBER 16, 2013 ORAL MOTION FOR A CONTINUANCE TO

COMPLETE HIS PSI.”

                                                  I.

       {¶12} Appellant first argues the trial court’s decision to impose an eighteen (18)

month prison term was contrary to law because it is unclear from the record whether the

court reviewed the statutory factors set forth in R.C. 2929.11 and 2929.12 or simply

issued the prison sentence due to the absence of a PSI. We disagree.
Licking County, Case No. 13CA102                                                          6

       {¶13} 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, as it relates to the remaining sentencing statutes and

appellate review of felony sentencing.      The Court stated that, in Foster, the Ohio

Supreme Court severed the judicial fact-finding portions of R.C. 2929.14 holding that

“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, 120 Ohio St.3d

at 123.   “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).” Id. However,

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

R.C. 2929.12 and the trial court must still consider these statutes. Id. Accordingly, “an

appellate court remains precluded from using an abuse-of-discretion standard of review

when initially reviewing a defendant’s sentence” and must instead “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).” Id.

       {¶14} When reviewing a felony sentence, an appellate court must first review the

sentence to ensure the sentencing court clearly and convincingly complied with the

applicable laws. Id. A trial court’s sentence would be contrary to law if, for example, it

were outside the statutory range, in contravention to a statute, or decided pursuant to

an unconstitutional statute.   Id.   In Kalish, the Supreme Court held the trial court’s

decision was not contrary to law when the trial court expressly stated it considered the
Licking County, Case No. 13CA102                                                          7


purposes and principles of R.C. 2929.11, the factors listed in R.C. 2929.12, properly

applied post-release control, and the sentence was within the permissible range. Kalish

at ¶ 18.

       {¶15} If this inquiry is satisfied, an appellate court then reviews the trial court’s

sentencing decision for abuse of discretion. Id. In order to find an abuse of discretion,

we must determine the trial court’s decision was unreasonable, arbitrary, or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶16} Upon review, we find appellant’s sentence is not clearly and convincingly

contrary to law. The sentence is within the statutory sentencing range. While appellant

contends it is unclear whether the trial court reviewed the statutory factors in R.C.

2929.11 and R.C. 2929.12 and only sentenced appellant to prison due to the lack of a

PSI, the record does not support appellant’s contention. At the sentencing hearing,

information was presented to the trial court from the State of Ohio, the victim’s mother,

appellant, and counsel for appellant. The trial court specifically stated that it considered

the victim impact statement, the statements of the parties, “the overriding purposes of

felony sentencing, and the relevant seriousness and recidivism factors. Taking those

factors into consideration and because there is no PSI, I am required to impose a prison

sentence.” Later at the sentencing hearing, the trial court stated the lack of the PSI was

only one of the reasons he was imposing a prison sentence and “even if I had a PSI

based on what I know about this case, I believe a prison sentence is warranted.”

       {¶17} Further, in the judgment entry of conviction and sentence, the trial court

stated the record, statements of the parties, victim impact statements, the purposes and
Licking County, Case No. 13CA102                                                       8


principles of sentencing set forth in R.C. 2929.11 and the factors in R.C. 2929.12 were

taken into consideration prior to imposing the prison sentence. Thus, the trial court

expressly stated during the sentencing hearing and in the sentencing entry that it had

considered the principles and factors contained in R.C. 2929.11 and R.C. 2929.12.

Further, the trial court advised appellant regarding post release control.

       {¶18} Although appellant argues the trial court erred by failing to give appellant

additional time to complete a PSI, Ohio law does not require the trial court to order a

PSI when sentencing a felon. State v. Kvintus, 5th Dist. Licking No. 09CA58, 2010-

Ohio-427. The Ohio Supreme Court has held that a trial court need not order a pre-

sentence report when probation or a community control sanction is not granted. State

v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94 (1992); see also Crim.R. 32.2; R.C.

2951.03(A)(1). Since the trial court did not order probation or a community control

sanction, it did not err by proceeding with the sentencing hearing without the completion

of the PSI. We find the sentence is not clearly and convincingly contrary to law.

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

review the sentence pursuant to an abuse of discretion standard. Appellant argues the

trial court abused its discretion when it deviated from the jointly recommended sentence

of community control and thus the sentence should be vacated. We find the trial court’s

overall sentencing decision was not an abuse of discretion. A deviation from a jointly

recommended sentence does not necessarily constitute an abuse of discretion. State v.

Little, 7th Dist. Mahoning No. 10MA145, 2011-Ohio-4256.          Sentencing is within the

sound discretion of the trial court. State v. Mathews, 8 Ohio App.3d 145, 456 N.E.2d

539 (10th Dist. 1982). The trial court is not bound by a recommendation proffered by
Licking County, Case No. 13CA102                                                         9

the State. State v. Kitzler, 3d Dist. Wyandot No. 16-02-06, 2002-Ohio-5253. Criminal

Rule 11 “does not contemplate that punishment will be a subject of plea bargaining, this

being a matter either determined expressly by statute or lying with the sound discretion

of the trial court.” Mathews, 8 Ohio App.3d at 146. Further, a trial court “is not bound

by a plea agreement unless there has been active participation by the trial court in the

agreement.” State v. Hutchinson, 5th Dist. Tuscarawas No. 2001AP030020, 2001 WL

1356356 (Oct. 30, 2001). Thus, a trial court does not err by imposing a sentence

greater than that recommended by the State when the trial court sufficiently explains to

the defendant the potential incarceration periods and sentencing ranges which may be

imposed upon conviction. State v. Bailey, 5th Dist. Knox No. 05-CA-13, 2005-Ohio-

5329; State v. Brown, 5th Dist. Delaware No. 13CA13, 2013-Ohio-5515.

       {¶20} In this case, prior to accepting appellant’s guilty plea, the trial court

explained to appellant that by entering a guilty plea, he would be waiving his right to a

trial by jury, the right to confront his accusers, the right to compulsory process of

witnesses, and the right to be proven guilty beyond a reasonable doubt. The trial court

also fully appraised appellant of the nature of the offense, the range of penalties and the

fines provided for the offense, the possibility of the imposition of post-release control,

and the potential consequences for a violation of post-release control. The trial court

also inquired whether appellant had been threatened or promised anything in exchange

for his plea except for the dismissal of the remaining two indictment charges. The trial

court specifically reviewed the plea agreement with appellant that included the dismissal

of two charges in exchange for the plea of guilty to the child endangering charge, a

felony of the third degree.    There is no indication that part of the plea included a
Licking County, Case No. 13CA102                                                       10


community control sentence.      Throughout the Criminal Rule 11 colloquy, appellant

indicted he waived his rights, understood the nature of the charges against him, the

maximum penalties, and stated that this plea was not induced by promise or threat,

other than the dismissal of the two charges by the State of Ohio.          Appellant also

reviewed and executed a written plea form, which was filed and made part of the record.

       {¶21} At the sentencing hearing, the State of Ohio indicated it recommended a

sentence of community control “if that’s what the court chooses to do at this time.”

There is no other evidence or indication the trial court actively engaged in the plea

negotiations or that a promise of a certain sentence had been made to appellant prior to

his plea. The written plea form and the trial court’s review of the plea agreement on the

record both indicate appellant’s plea to the child endangering charge was in exchange

for the dismissal of the second child endangering charge and the felonious assault

charge with no indication as to a community control sentence being part of the plea

agreement. The record reveals appellant was fully informed by the court as to the rights

he was waiving and all other consequences of his guilty plea.

       {¶22} Upon review of the record and the totality of the circumstances, we find

the trial court sufficiently explained the potential incarceration period and potential

penalties for his crimes. Thus, the trial court did not abuse its discretion in sentencing

appellant to eighteen months in prison when the sentence did not follow the

prosecutor’s recommendation of community control.

       {¶23} Accordingly, we find appellant’s sentence was not contrary to law or an

abuse of discretion. Appellant’s first assignment of error is overruled.
Licking County, Case No. 13CA102                                                     11


                                              II.

      {¶24} Appellant contends the trial court should have granted appellant’s October

16, 2013 motion for continuance on the record when it became apparent a PSI had not

been completed. We disagree.

      {¶25} The decision whether to grant or deny a continuance rests in the sound

discretion of the trial court. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981).

An abuse of discretion requires a finding that the trial court’s decision was

unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).            When

determining whether the court’s discretion to grant a continuance has been abused, a

reviewing court must balance the interests of judicial economy and justice against any

potential prejudice to the moving party. State v. Battle, 5th Dist. Morgan No. 09AP0001,

2010-Ohio-4327.

      {¶26} When appellant agreed to change his plea on August 6, 2013, the trial

court granted a continuance of the trial date and granted appellant’s motion for a PSI.

The trial court continued the change of plea and sentencing hearing to September 30,

2013, giving appellant approximately fifty-five (55) days to consult with the probation

office to have them complete a PSI. On September 27, 2013, appellant requested a

continuance to complete the PSI and due to the fact that he had recently been released

from the hospital. The trial court granted appellant’s motions to continue on September

30, 2013 and continued the change of plea and sentencing hearing until October 16,

2013, giving appellant and his counsel another sixteen (16) days of additional time to

complete the required questionnaire necessary to finalize the PSI. Further, appellant
Licking County, Case No. 13CA102                                                      12


requested the continuance to complete the PSI after the trial court informed appellant

he was sentencing him to an eighteen-month prison term. The trial court noted he had

appellant’s statement, the victim impact statement, considered the relevant factors, and

determined a prison term was warranted. The trial court further stated that “even if I

had a PSI based on what I know about this case, I believe a prison sentence is

warranted.”

      {¶27} Based on the foregoing, we find that the trial court did not err in denying

appellant’s motion to continue the sentencing hearing. The trial court’s decision was not

arbitrary, unconscionable, or unreasonable. Appellant’s second assignment of error is

overruled.

      {¶28} Accordingly, appellant’s first and second assignments of error are

overruled. The October 16, 2013 judgment of conviction and sentence of the Licking

County Court of Common Pleas is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Wise, J., concur
