[Cite as State v. McAndrew, 2017-Ohio-8993.]


                                      COURT OF APPEALS
                                   ASHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                        Plaintiff-Appellee     :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 17-COA-015
CHRISTOPHER T. McANDREW                        :
                                               :
                    Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland County
                                                   Court of Common Pleas, Case No.16-CRI-
                                                   237

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            December 11, 2017



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CHRISTOPHER R. TUNNELL                             BRIAN A. SMITH
Prosecuting Attorney                               755 White Pond Drive, Suite 403
110 Cottage Street                                 Akron, OH 44320
Ashland, OH 44805
[Cite as State v. McAndrew, 2017-Ohio-8993.]


Gwin, P.J.

        {¶1}    Appellant Christopher T. McAndrew [“McAndrew”] appeals from the May 15,

2017 sentencing entry of the Ashland County Court of Common Pleas.

                                        Facts and Procedural History

        {¶2}    On January 12, 2017, McAndrew was indicted on one count of abduction,

a felony of the third degree in violation of R.C. 2905.02(A)(2) and one count of domestic

violence, a felony of the fourth degree in violation of R.C. 2919.25(A).

        {¶3}    On March 9, 2017, McAndrew pleaded guilty to the count of domestic

violence contained in the indictment, in exchange for McAndrew's plea, the state moved

to dismiss the abduction charge.

        {¶4}    On May 15, 2017, the trial court sentenced McAndrew to six months'

imprisonment on the domestic violence charge, and to a total of 1,264 days imprisonment

to run consecutively with McAndrew's sentence on the domestic violence charge. This

represented the balance of McAndrew's remaining time on post-release control from an

earlier case, Ashland County Court of Common Pleas case number 14-CRI-024.

                                               Assignment of Error

        {¶5}    McAndrew raises one assignment of error,

        {¶6}    “I. APPELLANT’S SENTENCE WAS NOT SUPPORTED BY THE

RECORD.”

                                                Law and Analysis

        {¶7}    When an offender pleads guilty to a new felony offense while on post-

release control, R.C. 2929.141 provides,
Ashland County, Case No. 17-COA-015                                                     3


             (A) Upon the conviction of or plea of guilty to a felony by a person on

      post-release control at the time of the commission of the felony, the court

      may terminate the term of post-release control, and the court may do either

      of the following regardless of whether the sentencing court or another court

      of this state imposed the original prison term for which the person is on post-

      release control:

             (1) In addition to any prison term for the new felony, impose a prison

      term for the post-release control violation. The maximum prison term for

      the violation shall be the greater of twelve months or the period of post-

      release control for the earlier felony minus any time the person has spent

      under post-release control for the earlier felony. In all cases, any prison

      term imposed for the violation shall be reduced by any prison term that is

      administratively imposed by the parole board as a post-release control

      sanction.   A prison term imposed for the violation shall be served

      consecutively to any prison term imposed for the new felony.              The

      imposition of a prison term for the post-release control violation shall

      terminate the period of post-release control for the earlier felony.

             (2) Impose a sanction under sections 2929.15 to 2929.18 of the

      Revised Code for the violation that shall be served concurrently or

      consecutively, as specified by the court, with any community control

      sanctions for the new felony.

      {¶8}   R.C. 2929.141(A)(1) mandates that the sentence for violating post-release

control is required to be served consecutive to any sentence imposed for the new felony.
Ashland County, Case No. 17-COA-015                                                       4


R.C. 2929.141 mandates the imposition of consecutive sentences without reference to

the R.C. 2929.14(C)(4) consecutive sentencing factors, thereby indicating that a trial court

is not required to make any findings before terminating post-release control and imposing

a specific prison sentence for the violation. In State v. Gregory this Court observed,

              This statute clearly and unambiguously required the trial court to

       order that appellant’s sentence for the post-release control violation be

       served consecutively with the sentence on the new felony. The statute

       mandates imposition of consecutive sentences without reference to the

       R.C. 2929.14(E)(4) consecutive factors which were found unconstitutional

       in Foster. R.C. 2929.141(B) usurps the trial court’s discretion to sentence

       appellant to anything but consecutive sentences.         Simply stated, the

       unconstitutional consecutive factors in R.C. 2929.14(E)(4) have no

       application to the present instance, where the trial court sentenced

       appellant for a new felony violation, and then proceeded to sentence him

       for a post-release control violation.

5th Dist. Muskingum No. CT2014-0046, 2015-Ohio-2642, ¶10, quoting, State v.

Proctor, 12th Dist. Butler Nos. CA2006–03–042, CA2006–03–043, 2007–Ohio–

909(citations omitted).

       {¶9}   In State v. Gilbert, the court observed,

              Under R.C. 2929.141(A)(1), a trial court is authorized to terminate

       post-release control and impose a sentence representing the time

       remaining on his term of post-release control. State v. Barron, 2d Dist.

       Montgomery No. 25059, 2012–Ohio–5787, ¶16. Only the trial court itself
Ashland County, Case No. 17-COA-015                                                      5


      may make the decision to sentence for a post-release control violation.

      State v. Branham, 2d Dist. Clark No. 2013–CA–49, 2014–Ohio–5067. Once

      the court decides to impose a sentence for such a violation, it is bound by

      R.C. 2929.141 when determining the time to be served. Id. The court is

      not required by the statute to make any findings prior to terminating post-

      release control. Barron at ¶ 16. The court also is not required to explain or

      justify why it has elected to impose a prison sentence for the violation. Id.

             The Supreme Court of Ohio recently held that pursuant to the plain

      language of R.C. 2953.08(G)(2), “an appellate court may vacate or modify

      a felony sentence on appeal only if it determines by clear and convincing

      evidence that the record does not support the trial court’s findings under

      relevant statutes or that the sentence is otherwise contrary to law.” State v.

      Marcum, Ohio Sup.Ct. Slip Opinion No. 2016–Ohio–1002, ¶ 1.

2nd Dist. Clark No. 2015-CA-117, 2016-Ohio-5539, ¶9-10.

      {¶10} The Marcum court further noted,

             We note that some sentences do not require the findings that R.C.

      2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

      appellate courts to review those sentences that are imposed solely after

      consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

      that is equally deferential to the sentencing court. That is, an appellate court

      may vacate or modify any sentence that is not clearly and convincingly

      contrary to law only if the appellate court finds by clear and convincing

      evidence that the record does not support the sentence.
Ashland County, Case No. 17-COA-015                                                       6

Marcum, 146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).

       {¶11} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

       {¶12} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a

non-exhaustive 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.

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

court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the 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, 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, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.
Ashland County, Case No. 17-COA-015                                                      7

       {¶14} “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.

       {¶15} 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; State v. Delong,

4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

       {¶16} 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, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶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, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶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), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).
Ashland County, Case No. 17-COA-015                                                 8


     {¶17} In the case at bar, the trial court found,

            The Record should also reflect that the Court has received and

     reviewed a Pre-Sentence Investigation Report and has made that

     document available to Counsel for their review prior to going on the Record.

                                          ***

            Mr. McAndrew, when imposing sentence the Court must comply with

     the purposes and principles of Ohio Sentencing Statutes. The overriding

     purpose is to punish the offender and protect the public from future crimes

     by the offender and others using minimum sanctions that the Court

     determines accomplishes those purposes without imposing an unnecessary

     burden on State or Local Government resources.

            The Court must also consider the need for incapacitation,

     deterrence, rehabilitation and restitution, and any sentence imposed by the

     Court should also be commensurate with and not demeaning to the

     seriousness of an offender's conduct and its impact on any victim, and it

     should being consistent with sentences for similar crimes by similar

     offenders.

            The Court cannot sentence based on an offender’s race, ethnicity,

     gender or religion. Obviously, you don't have the greatest criminal record

     here, Mr. McAndrew, and you've got a lot of offenses that have some form

     of offense – violence associated with them, as well as others that are

     substance-abuse related and so on.

            Because this is an F-4 level offense, you won't be subject to any
Ashland County, Case No. 17-COA-015                                                 9


     mandatory Post-Release Control, even though it was a violent assault, and

     I guess that is the nature of the Plea Agreement here, it keeps you off

     mandatory Post-Release Control following any prison term that the Court is

     imposing in this case.

            Also, based on my computation having been placed on Post-Release

     Control October 15, 2015, as of today you should have served roughly 560

     days of that Post-Release Control Supervision, leaving you with 1,264 days

     left on Post-Release Control Supervision or roughly 3.46 years, just under

     three and a half years.

            Based on the nature of this offense, the offense of violence, I am

     finding that you are not amenable to a Community Control Sanction, and

     also am finding that it's appropriate since you were on Post-Release Control

     Supervision that your Post-Release Control Supervision be revoked and

     that the full amount of the Post-Release Control time be imposed

     consecutive to any additional prison sentence that the Court is imposing on

     Count 2.

            It's going to be the Order of the Court with regard to that Count 2

     offense, Domestic Violence, in violation of Section 2919.25(a), a Felony of

     the 4th Degree, that you serve six months in prison under the supervision

     of the Department of Rehabilitation and Corrections, and your Post-Release

     Control time will be served consecutive to that. So you will serve the six

     months, and then the 1,264 days consecutive to that, so you are looking at

     a grand total of just a hair over four years in the aggregate.
Ashland County, Case No. 17-COA-015                                                    10


Sent. T. May 15, 2017 at 3; 5-8.

      {¶18} R.C. 2929.141 expressly authorizes the prison sentence imposed by the

trial court for McAndrew’s post-release control violation; therefore, the sentence is not

clearly and convincingly contrary to law. Accordingly, this court may vacate the sentence

and remand the matter for resentencing only if there is clear and convincing evidence that

the record does not support the sentence imposed by the trial court. We cannot say that

is the case here, as there is no evidence that the record does not support the sentence.

We again note that McAndrew has an extensive criminal history, a high risk of recidivism,

and that he committed his most recent offense while he was already on community

control. There is no clear and convincing evidence that the record does not support the

sentence.

      {¶19} McAndrew’s sole assignment of error is overruled.
Ashland County, Case No. 17-COA-015                                             11


      {¶20} The judgment of the Ashland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Wise, John, J., and

Baldwin, J., concur
