[Cite as State v. Heard, 2011-Ohio-2031.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95002




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                  RAHEEM J. HEARD

                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-523007

        BEFORE: Jones, J., Boyle, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      April 28, 2011
ATTORNEY FOR APPELLANT

David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Jeffrey S. Schnatter
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                    ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Raheem Heard (“Heard”), appeals his conviction for

domestic violence and endangering children.   Finding no merit to the appeal, we affirm.

       {¶ 2} In 2009, Heard was charged with two counts of domestic violence and two

counts of endangering children, with his five-year-old son as the named victim.    He entered

into a plea agreement with the state and pleaded guilty to one count of domestic violence and
one count of endangering children.   The trial court sentenced Heard to a total of three years in

prison at the subsequent sentencing hearing.

       {¶ 3} Heard now appeals his sentence, assigning the following error for our review:

       {¶ 4} “I.   The trial court denied the appellant a full and fair sentencing hearing.”

       {¶ 5} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

Ohio Supreme Court addressed the standard for reviewing felony sentencing. See, also, State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.         Appellate courts must apply the

following 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 is reviewed under the

abuse-of-discretion standard.”   Kalish at ¶26.

       {¶ 6} Thus, in the first step of our analysis, we review whether the sentence is contrary

to law as required by R.C. 2953.08(G).    As the Kalish court noted, post- Foster, “trial courts

have full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings and give reasons for imposing maximum, consecutive or more than

the minimum sentence.”     Id. at ¶11; Foster, paragraph seven of the syllabus.         The Kalish

court declared that although Foster eliminated mandatory judicial fact-finding, it left R.C.

2929.11 and 2929.12 intact. Kalish at ¶13.        As a result, the trial court must still consider
these statutes when imposing a sentence.       Id., citing State v. Mathis, 109 Ohio St.3d 54,

2006-Ohio-855, 846 N.E.2d 1, at ¶38.

       {¶ 7} R.C. 2929.11(A) provides:

       {¶ 8} “[A] court that sentences an offender for a felony shall be 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. 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.”

       {¶ 9} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must consider

when determining the seriousness of the offense and the likelihood that the offender will

commit future offenses.

       {¶ 10} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not fact-finding

statutes like R.C. 2929.14. Kalish at ¶17.      Rather, they “serve as an overarching guide for

trial judges to consider in fashioning an appropriate sentence.”     Id.   Thus, “[i]n considering

these statutes in light of Foster, the trial court has full discretion to determine whether the

sentence satisfies the overriding purposes of Ohio’s sentencing structure.”    Id.

       {¶ 11} Heard concedes that his sentence was within the statutory guidelines but argues

that the trial court did not afford him a full and fair sentencing hearing because the court spoke,

ex parte, with the victim’s social worker.
       {¶ 12} He further argues that the trial court erred when it did not allow defense counsel

to question the social worker about whether he was surprised when he learned that there was a

no-contact order in the case.   According to Heard, the social worker’s opinion was relevant to

sentencing because he could assess the danger Heard presented to his son.          Finally, Heard

claims that the trial court assumed facts not in evidence when the court stated “I don’t know

how many times this has happened before with his son * * *,” which was a comment on the

state’s unsupported allegation that Heard had repeatedly abused his son.

       {¶ 13} We disagree with Heard’s assertions.      First, there is nothing in the record to

indicate that the trial court held an inappropriate ex parte conversation with a witness.

Although the record does indicate that the trial court spoke with the social worker off the

record, it is unknown whether defense counsel was present during that conversation.           That

being said, defense counsel did state on the record, “I talked to [the social worker] in the back,

just as you did.”   Absent any showing otherwise, such as an App.R. 9(C) statement of the

evidence or proceedings, this court will presume regularity.

       {¶ 14} Next, we find no error in the trial court’s decision not to allow the social

worker’s opinion into the record.   We agree with the trial court that it is irrelevant whether the

social worker was surprised to find out that the trial court had issued a no-contact order.    We

further note that the trial court allowed the defense attorney to question whether the social

worker thought Heard would be an appropriate placement for the child if he complied with his

caseplan, to which the social worker explained his reservations.
       {¶ 15} We also disagree with Heard’s assertion that the trial court based its sentence on

the state’s allegation that Heard had previously abused his son.   When the state alleged during

the hearing that the victim had old injuries, it was the court that questioned whether the state

could support its claim with medical records.   When the state replied that it was not admitting

the medical records into evidence, the trial court stated: “I don’t know how many times this

has happened before with his son, but he’s being sentenced, let’s be clear here, for beating a

five year old * * *,” which indicates to this court that the trial court was not considering the

allegations of past abuse.

       {¶ 16} At the hearing, the trial court expressly stated that it was taking into

consideration the factors pursuant to R.C. 2929.11 and 2929.12 and found that, with Heard’s

history of four domestic violence convictions, a probation violation, previous driving under

suspension convictions, the age of the victim, and the severity of the beating, that Heard was

likely to reoffend.

       {¶ 17} Finally, we do not find that the trial court abused its discretion in sentencing

Heard to three years in prison.   The facts entered into evidence showed that Heard had four

prior convictions or adjudications of delinquency for domestic violence and whipped his

five-year-old son eight to ten times on his bare back and buttocks with a belt as a punishment

for misbehaving in school, causing scarring to the child’s body.

       {¶ 18} The sole assignment of error is overruled.

       Accordingly, judgment is affirmed.
      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.




      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
MARY J. BOYLE, P.J., CONCURS IN
JUDGMENT ONLY
