[Cite as State v. Lewis, 2012-Ohio-4806.]


                                        COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   Sheila G. Farmer, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 12-COA-006
                                               :
                                               :
ANNE M. LEWIS                                  :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Ashland County
                                                    Court of Common Pleas Case No.
                                                    08-CRI-084

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             October 15, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RAMONA FRANCESCONI ROGERS                           DAVID R. STIMPERT
Ashland County Prosecutor                           10 East Main Street
                                                    Ashland, Ohio 44805
BY: DANIEL J. PETRICINI
Assistant Ashland County Prosecutor
110 Cottage Street, Third Floor
Ashland, Ohio 44805
[Cite as State v. Lewis, 2012-Ohio-4806.]


Edwards, J.

        {¶1}     Defendant-appellant, Anne Lewis, appeals her sentence from the Ashland

County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On July 1, 2008, the Ashland County Grand Jury indicted appellant on one

count of operating a vehicle under the influence of alcohol and/or drugs in violation of

R.C. 4511.19(A)(1)(a), a felony of the third degree, and one count of operating a vehicle

under the influence of alcohol and/or drugs in violation of R.C. 4511.19(A)(1)(d), a

felony of the third degree. The indictment indicated that appellant had a prior conviction

out of Cuyahoga County for operating a motor vehicle while under the influence of drugs

or alcohol. At her arraignment on September 19, 2008, appellant entered a plea of not

guilty to the charges.

        {¶3}     Subsequently, on December 15, 2008, appellant withdrew her former not

guilty plea and pleaded guilty to the lesser included offense of attempted operating a

vehicle while under the influence of alcohol and/or drugs in violation of R.C. 2923.02(A)

and 4511.19(A)(1)(a), a felony of the fourth degree. The remaining charge was

dismissed. Pursuant to a Judgment Entry filed on February 5, 2009, appellant was

sentenced to 180 days in jail and placed on community control for a period of two years

under specified terms and conditions.

        {¶4}     On July 29, 2010, a complaint was filed against appellant alleging that she

had violated the terms and conditions of her community control by: (1)                being

discharged from the Women's Center of Greater Cleveland for failing to report to group

and testing positive for alcohol on two occasions; (2) using alcohol on two occasions;
Ashland County App. Case No. 12-COA-006                                                 3


and (3) failing to complete 80 hours of community service work. On November 30, 2011,

a second document was filed alleging that appellant had violated the terms and

conditions of her community control by being convicted, on or about November 16,

2011, of attempted driving under the influence of drugs and/or alcohol in Cuyahoga

County Court of Common Pleas. Thereafter, on December 5, 2011, appellant entered

pleas of admission to all of the community control violations and was found to have

violated her community control orders.

       {¶5}   A sanctioning hearing was held on December 29, 2011. As memorialized

in a Judgment Entry filed on January 4, 2012, the trial court found that appellant was not

amenable to further community control and imposed the sixteen (16) month prison

sentence previously set by the court. The trial court ordered that appellant would

receive credit for time served.

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

       {¶7}   “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.

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

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

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF THE OHIO

REVISED CODE SECTION 2929.13(A).”

                                                I

       {¶9}   Appellant, in her first assignment of error, argues that the sentence

imposed by the trial court was contrary to law and an abuse of discretion. We disagree.
Ashland County App. Case No. 12-COA-006                                                     4

       {¶10} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–

Ohio–4912, 896 N.E.2d 124 set forth a two step process for examining felony

sentences. 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.

       {¶11} The relevant sentencing law is now controlled by the Ohio Supreme

Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470,

i.e. “* * * 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.” Id. at ¶ 100.

       {¶12} The record herein reflects that appellant was sentenced to a prison term of

sixteen (16) months for a charge of attempted driving under the influence of alcohol, a

felony of the fourth degree. The sentence was within the statutory guidelines and

parameters. The record further reflects, and appellant does not challenge, 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.

       {¶13} Having found that appellant's sentence was not contrary to law, we must

next determine whether or not the trial court abused its discretion in sentencing

appellant. An abuse of discretion means more than an error of judgment; it implies that
Ashland County App. Case No. 12-COA-006                                                  5

the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62

Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

      {¶14} Appellant specifically contends that her sentence was an abuse of

discretion because she expressed remorse for her community control violations, she

accepted responsibility for having committed the same, and she expressed a strong

desire to overcome her addiction to alcohol.

      {¶15} However, as is stated above, while on community control for attempted

driving under the influence of alcohol in the case sub judice, appellant violated the terms

and conditions of her community control by failing to report to a treatment center, testing

positive for alcohol on two occasions and failing to complete community service. More

importantly, while on community control, appellant was convicted of attempted driving

under the influence of alcohol in Cuyahoga County. As noted by appellee, the

Cuyahoga County case represents appellant’s second DUI related charge in less than

two years. In addition, appellant’s pre-sentence investigation report reveals that, in

2000, she was convicted in Cuyahoga County of driving under the influence, a felony of

the fourth degree.

      {¶16} We find, based on the foregoing, that the trial court did not abuse its

discretion in finding that appellant had failed to take advantage of the opportunities

provided to her while under community control and imposing the previously suspended

sixteen (16) month prison sentence. The trial court’s decision was not arbitrary,

unconscionable or unreasonable.

      {¶17} Appellant’s first assignment of error is, therefore, overruled.
Ashland County App. Case No. 12-COA-006                                                    6


                                                 II

       {¶18} Appellant, in her second assignment of error, argues that her sentence

imposed an unnecessary burden on state and/or local government resources pursuant

to R.C. 2929.11.

       {¶19} R.C. 2929.11 provides as follows:

       {¶20} “(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources. To achieve those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.”

       {¶21} As we noted in State v. Ferenbaugh, 5th Dist. No. 03COA038, 2004–

Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial courts

discretion to impose sentences. Nowhere within the statute is there any guideline for

what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. No.2008–COA–

036, 2009–Ohio–3105, this Court reviewed a similar claim. We found that, although

burdens on State resources may be a relevant sentencing criteria, state law does not

require trial courts to elevate resource conservation above seriousness and recidivism

factors, Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No. 97CA0019, 1997 WL

624811 (October 10, 1997).
Ashland County App. Case No. 12-COA-006                                                 7


       {¶22} Appellant has not demonstrated that a term of incarceration in the instant

case is an unnecessary burden on state and/or local resources. As is stated above,

appellant admitted to four different community control violations. Specifically, appellant

admitted to being discharged from the Women's Center of Greater Cleveland for failing

to report to group, using alcohol on two occasions, and failing to complete 80 hours of

community service work. In addition, appellant violated the terms and conditions of her

community control by being convicted, on or about November 16, 2011, of attempted

driving under the influence of drugs and/or alcohol in Cuyahoga County Court of

Common Pleas. Moreover, as is stated above, appellant also was convicted in 2000 of

driving under the influence.

       {¶23} Based on the foregoing, we cannot say that appellant’s sentence imposed

an unnecessary burden on state and/or local government resources. Appellant’s second

assignment of error is, therefore, overruled.
Ashland County App. Case No. 12-COA-006                                         8


       {¶24} Accordingly, the judgment of the Ashland County Court of Common Pleas

is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                               ______________________________



                                               ______________________________



                                               ______________________________

                                                          JUDGES

JAE/d0723
[Cite as State v. Lewis, 2012-Ohio-4806.]


               IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ANNE M. LEWIS                                     :
                                                  :
                        Defendant-Appellant       :       CASE NO. 12-COA-006




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

judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
