[Cite as State v. Leasure, 2012-Ohio-318.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO

                         Plaintiff-Appellee

-vs-

ADRIAN M. LEASURE

                     Defendant-Appellant

JUDGES:
  Hon. Patricia A. Delaney, P. J.
  Hon. W. Scott Gwin, J.
  Hon. William B. Hoffman, J.


Case No. 2011-COA-031


OPINION

CHARACTER OF PROCEEDING:                       Criminal appeal from the Ashland County
                                               Court of Common Pleas, Case No. 11-CRI-
                                               025

JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         January 30, 2012




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KAREN DESANTO KELLOGG                          DAVID R. STIMPERT
Assistant Prosecuting Attorney                 10 East Main Street
110 Cottage Street                             Ashland, OH 44805
Ashland, OH 44805
Gwin, P.J.

       {1}    On May 24, 2011, appellant Adrian M. Leasure entered a plea of guilty to

a charge of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of

the fifth degree.

       {2}    At a subsequent sentencing hearing, the trial court, after considering (1)

statements from appellant and his legal counsel; (2) the overriding purposes of felony

sentencing; (3) the statutory factors set forth in R.C. 2929.12 and 2929.13; (4) the Pre-

Sentence Investigation report, which indicated that appellant had a prior criminal history,

was given a Community Control Sentence that was terminated unsuccessfully, and had

a history of substance abuse; and (5) the seriousness and recidivism factors, sentenced

appellant to ten (10) months under the supervision of the Ohio Department of

Rehabilitation and Corrections and a fine of One Thousand Dollars ($1,000.00) plus

court costs. The trial court further ordered that appellant's operator's license be

suspended for a period of three (3) years.

       {3}    Appellant has timely appealed raising the following assignments of error:

       {4}    “I. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, WAS CLEARLY AND CONVINCINGLY CONTRARY

TO LAW AND/OR AN ABUSE OF THE TRIAL COURT'S DISCRETION.

       {5}    “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, IMPOSES AN UNNECESSARY BURDEN ON STATE

RESOURCES.”
                                            I., II.

      {6}    In his First Assignment of Error appellant argues that his consecutive

sentences in this case are contrary to the law and the trial court abused its discretion in

sentencing him to a 10-month prison term. Appellant maintains in his Second

Assignment of Error the imposition of a ten-month prison sentence results in an

unnecessary burden on state resources. We disagree.

      {7}    At the outset, we note there is no constitutional right to an appellate review

of a criminal sentence. Moffitt v. Ross, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2444, 41

L.Ed.2d 341(1974); McKane v. Durston, 152 U.S. 684, 687, 14 S.Ct. 913. 917(1894);

State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668(1997); State v.

Firouzmandi, 5th Dist No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175. An

individual has no substantive right to a particular sentence within the range authorized

by statute. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d

393 (1977); State v. Goggans, Delaware App. No. 2006-CA-07-0051, 2007-Ohio-1433,

2007 WL 914866, ¶ 28. In other words “[t]he sentence being within the limits set by the

statute, its severity would not be grounds for relief here even on direct review of the

conviction ... It is not the duration or severity of this sentence that renders it

constitutionally invalid....” Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255,

92 L.Ed. 1690(1948).

      {8}    Recently 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. See, State v. Snyder, Licking App.

No. 2008-CA-25, 2080-Ohio-6709, 2008 WL 5265826.

       {9}    In Kalish, the Court discussed the affect of the Foster decision on 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 at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100,

See also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State

v. Firouzmandi, Licking App. No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175.

       {10}   In Kalish, the Court discussed the affect of the Foster decision on 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 at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100,

See also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State

v. Firouzmandi, supra.

       {11}   “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 ¶ 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 ¶
13, see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi, supra at ¶ 29.

       {12} “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 ¶ 14.

      {13}   Therefore, Kalish holds that, in reviewing felony sentences and applying

Foster to the remaining sentencing statutes, the 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.” Kalish at ¶ 4, State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470.

      {14}   The Supreme Court held, in Kalish, that the trial court's sentencing

decision was not contrary to law. “The trial court expressly stated that it considered the

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

Moreover, it properly applied post release control, and the sentence was within the

permissible range. Accordingly, the sentence is not clearly and convincingly contrary to

law.” Kalish at ¶ 18. The Court further held that the trial court “gave careful and
substantial deliberation to the relevant statutory considerations” and that there was

“nothing in the record to suggest that the court's decision was unreasonable, arbitrary,

or unconscionable.” Kalish at ¶ 20.

       {15}   In the case at bar, appellant was convicted of a felony of the fifth degree.

For a violation of a felony of the fifth degree, the potential sentence that a court can

impose is six, seven, eight, nine, ten, eleven, or twelve months. Appellant was

sentenced to a sentence of ten months.

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

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects and appellant agrees 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. Therefore, the sentence is

not clearly and convincingly contrary to law.

       {17}   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.

       {18}   Under Ohio law, judicial fact-finding is no longer required before a court

imposes consecutive or maximum prison terms. See State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,

846 N.E.2d 1. Instead, the trial court is vested with discretion to impose a prison term

within the statutory range. See Mathis, at ¶ 36. In exercising its discretion, the trial court
must “carefully consider the statutes that apply to every felony case [including] R.C.

2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides

guidance in considering factors relating to the seriousness of the offense and recidivism

of the offender [and] statutes that are specific to the case itself.” Id. at ¶ 37, 846 N.E.2d

1. Thus, post-Foster, “there is no mandate for judicial fact-finding in the general

guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42.

State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061, 2006 WL 2257068; State

v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753, 2006 WL 2257068, ¶ 7-8.

Therefore, post-Foster, trial courts are still required to consider the general guidance

factors in their sentencing decisions.

       {19}   There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and

recidivism or even discussed them. State v. Polick (1995), 101 Ohio App.3d 428, 431,

655 N.E.2d 820, (4th Dist.); State v. Gant, Mahoning App. No. 04 MA 252, 2006-Ohio-

1469, 2006 WL 771790, ¶ 60 (nothing in R.C. 2929.12 or the decisions of the Ohio

Supreme Court imposes any duty on the trial court to set forth its findings), citing State

v. Cyrus (1992), 63 Ohio St.3d 164, 166, 586 N.E.2d 94; State v. Hughes, Wood App.

No. WD-05-024, 2005-Ohio-6405, 2005 WL 3254527, ¶ 10 (trial court was not required

to address each R.C. 2929.12 factor individually and make a finding as to whether it

was applicable in this case).

       {20}   Where the record lacks sufficient data to justify the sentence, the court

may well abuse its discretion by imposing that sentence without a suitable explanation.

Where the record adequately justifies the sentence imposed, the court need not recite
its reasons. State v. Middleton, 8th Dist. No. 51545, 1987 WL 5476 (Jan. 15, 1987). In

other words, an appellate court may review the record to determine whether the trial

court failed to consider the appropriate sentencing factors. State v. Firouzmandi, supra

at ¶ 52.

       {21}   Accordingly, appellate courts can find an “abuse of discretion” where the

record establishes that a trial judge refused or failed to consider statutory sentencing

factors. Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342 (1st Dist. 1978). An

“abuse of discretion” has also been found where a sentence is greatly excessive under

traditional concepts of justice or is manifestly disproportionate to the crime or the

defendant. Woosley v. United States, 478 F.2d 139, 147 (8th Cir. 1973). The imposition

by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject

to review. Woosley, supra at 143-145. Where the severity of the sentence shocks the

judicial conscience or greatly exceeds penalties usually exacted for similar offenses or

defendants, and the record fails to justify and the trial court fails to explain the

imposition of the sentence, the appellate courts can reverse the sentence. Woosley,

supra at 147. This by no means is an exhaustive or exclusive list of the circumstances

under which an appellate court may find that the trial court abused its discretion in the

imposition of sentence in a particular case. State v. Firouzmandi, supra.

       {22}   In the case at bar, 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. We find nothing in the record of appellant's
case to suggest that his sentence was based on an arbitrary distinction that would

violate the Due Process Clause of the Fifth Amendment.

      {23}   In the case at bar, the trial court conducted a sentencing hearing in open

court. Appellant concedes that the trial court considered statements from appellant and

his legal counsel; the overriding purposes of felony sentencing; the statutory factors set

forth in R.C. 2929.12 and 2929.13; the Pre-Sentence Investigation report, which

indicated that appellant had a prior criminal history, was given a Community Control

Sentence that was terminated unsuccessfully, and had a history of substance abuse;

and the seriousness and recidivism factors, before deciding on a prison term of ten

months.

      {24}   It appears to this Court that the trial court's statements at the sentencing

hearing were guided by the overriding purposes of felony sentencing to protect the

public from future crime by the offender and others and to punish the offender. R.C.

2929.11.

      {25}   Based on the record, the transcript of the sentencing hearing and the

subsequent judgment entry, this Court cannot find that the trial court acted

unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant's

rights to due process under the Ohio and United States Constitutions in its sentencing

appellant. Further, the sentence in this case is not so grossly disproportionate to the

offense as to shock the sense of justice in the community.

      {26}   In his Second Assignment of Error, appellant contends that his sentence

violates the general assembly's intent to minimize the unnecessary burden on state and

local government resources. Specifically, appellant argues that essentially the trial court
erred by not complying with the new sentencing law, House Bill 86, which did not come

into effect until September 30, 2011 months after the appellant was sentenced.

Appellant urges this court to consider the purposes of the new sentencing reforms in

determining whether his sentence is an unnecessary burden on state and local

government resources. Appellant submits that under the new mandate a Court must use

the minimum sanctions to accomplish the purposes and principles of sentencing without

imposing an unnecessary burden on state or local government resources, as set forth in

R.C. 2929.11, as amended by 2011 Am.Sub.H.B. No. 86.

       {27}   In State v. Ober, Second Dist No. 97CA0019, 1997 WL 624811(Oct. 10,

1997), the Second District considered this same issue. In rejecting the argument, the

court stated “Ober is correct that the ‘sentence shall not impose an unnecessary burden

on state or local government resources.’ R.C. 2929.19(A). According to criminal law

experts, this resource principle ‘impacts on the application of the presumptions also

contained in this section and upon the exercise of discretion.’ Griffin & Katz, Ohio

Felony Sentencing Law (1996-97), 62. Courts may consider whether a criminal sanction

would unduly burden resources when deciding whether a second-degree felony

offender has overcome the presumption in favor of imprisonment because the resource

principle is consistent with the overriding purposes and principles of felony sentencing

set forth in R.C.2929.11. Id.”

       {28}   The Ober court concluded, “[a]lthough resource burdens may be a

relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate

resource conservation above the seriousness and recidivism factors. Imposing a

community control sanction on Ober may have saved state and local government funds;
however, this factor alone would not usually overcome the presumption in favor of

imprisonment.” Id.

      {29}   Several other appellate courts, including our own, considering these

issues have reached the same conclusion. See, e.g., State v. Hyland, Butler App. No.

CA2005-05-103, 2006-Ohio-339, 2006 WL 215052, ¶ 32; State v. Brooks, 10th Dist. No.

97APA-11-1543, 1998 WL 514111(Aug. 18, 1998); State v. Stewart, 8th Dist. No. 74691,

1999 WL 126940 (Mar. 4, 1999); State v. Fox, 3rd Dist. No. 16-2000-17, 2001 WL

218433( Mar. 6, 2001); State v. Miller, 5th Dist. No. 04-COA-003, 2004-Ohio-4636, 2004

WL 1945548. We agree with the reasoning of the Ober court and other courts

considering this issue and find no merit to appellant's argument.

      {30}   Further, R.C. 2929.13(A), in effect at the time of appellant’s sentencing

provided, “[t]he sentence shall not impose an unnecessary burden on state or local

government resources.” However, “[t]he 2011 amendments to the sentencing statutes,

which became effective September 30, 2011, have deleted this sentence.” State v.

Saur, 10th Dist. No. 10AP-1195, 2011-Ohio-6662, 2011 WL 6826861, fn. 1. Thus, the

amended version of the sentencing statute does not require the sentencing court to

consider the conservation principle set forth in former R.C. 2929.13(A). Id.

      {31}   Accordingly, for all of the reasons cited above, we overrule appellant's

First and Second Assignments of Error in their entirety.
       {32}    The judgment of the Ashland County Court of Common Pleas is affirmed.




By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur




                                                 _________________________________
                                                 HON. W. SCOTT GWIN

                                                 _________________________________
                                                 HON. PATRICIA A. DELANEY

                                       _________________________________
                                       HON. WILLIAM B. HOFFMAN
              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :
                                             :
                        Plaintiff-Appellee   :
                                             :
                                             :
-vs-                                         :       JUDGMENT ENTRY
                                             :
ADRIAN M. LEASURE                            :
                                             :
                                             :
                     Defendant-Appellant     :       CASE NO. 2011-COA-031
   For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Ashland County Court of Common Pleas is affirmed. Costs to appellant.




                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. PATRICIA A. DELANEY

                                           _________________________________
                                           HON. WILLIAM B. HOFFMAN
