[Cite as State v. Grodzik, 2013-Ohio-5364.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                      :       OPINION

                 Plaintiff-Appellee,                :
                                                            CASE NO. 2012-P-0111
        - vs -                                      :

BRIAN L. GRODZIK,                                   :

                 Defendant-Appellant.               :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
0370.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Patricia J. Smith, 9442 State Route 43, Streetsboro, OH              44241 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Brian L. Grodzik, appeals from the judgment of the Portage

County Court of Common Pleas, sentencing him to a maximum term of three-years

imprisonment for reckless homicide. We affirm.

        {¶2}     Appellant met Linda L. Palmisano in a nursing home where each was

recovering from a drug overdose.              The couple married.   The record indicates that

appellant suffers from certain intellectual and behavioral limitations.          He did not
graduate from high school and could not pass the GED test, though he attempted twice.

He has not worked for many years, but survives on social security payments. He takes

medication for schizophrenia. He was 55 years old at the time of sentencing. The

record also indicates Ms. Palmisano was physically disabled.

       {¶3}   On the evening of September 16, 2011, the couple was at a new

apartment. The apartment building lacked smoke alarms or fire extinguishers. Ms.

Palmisano was in bed, from which she could not leave without assistance. Appellant

wished to remove a tag from a sofa. To do so, he lit the tag on fire; the fire spread,

however. Appellant attempted, unsuccessfully, to put the fire out with water from pots

and pans. Appellant called to his wife, but claimed he received no response. He left

the apartment and advised responding emergency personnel that Ms. Palmisano was

still in the building. She was dead.

       {¶4}   On June 4, 2012, the Portage County Grand Jury returned an indictment

against appellant, charging him with one count of reckless homicide, a third-degree

felony, in violation of R.C. 2903.041. Appellant entered a written plea of guilty and the

trial court ordered a presentence investigation (“PSI”) report.       After a sentencing

hearing, the trial court sentenced appellant to a maximum, three-year term of

imprisonment. Appellant now appeals and assigns two errors for our review. Each

assignment of error challenges appellant’s sentence.

       {¶5}   “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences. 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



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trial court's decision in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.

      {¶6}   The first assignment of error provides:

      {¶7}   “The trial court abused its discretion when it considered factors that are

clearly and convincingly contrary to R.C. 2929.11 and R.C. 2929.12.”

      {¶8}   Under this assignment of error, appellant argues the trial court improperly

considered an elevated mens rea in sentencing him for his guilty plea on the charge of

reckless homicide. Instead of “reckless” conduct, appellant asserts the court observed

that appellant acted possibly “knowingly” in committing the crime. Appellant maintains

this consideration is contrary to the facts of record and, as a result, the trial court’s

maximum sentence is contrary to law. We do not agree.

      {¶9}   At the sentencing hearing, the trial court expressed surprise that the only

charge in the indictment was reckless homicide. The court stated: “I’m going to find this

is a heinous act, committed recklessly and possibility [sic] knowingly.” This comment

does not imply that the court imposed the maximum penalty based upon illegitimate

considerations.   To the contrary, the trial court acknowledged it was bound by the

indictment, and, in reaching its sentence, further affirmed that appellant’s act was

reckless. The fact that the trial court indicated a suspicion that the act may have been

“knowing,” within the contemplation of the law, does not clearly and convincingly

demonstrate that the trial court applied a heightened mens rea to illegitimately inflate

appellant’s sentence. The sentence was within the relevant felony range and, in light of

the foregoing analysis, discern no error in the court’s decision to impose the maximum

sentence.



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      {¶10} Appellant’s first assignment of error lacks merit.

      {¶11} Appellant’s second assignment of error asserts:

      {¶12} “The trial court erred in failing to consider statutorily required mitigating

factors during sentencing hearing.”

      {¶13} Under this assigned error, appellant argues the trial court abused its

discretion in applying the seriousness and recidivism factors set forth at R.C. 2929.12.

Specifically, he asserts the trial court did not consider his diminished capacity pursuant

to R.C. 2929.12(C)(4), a factor making criminal conduct less serious, when “[t]here are

substantial grounds to mitigate the offender’s conduct, although the grounds are not

enough to constitute a defense.”

      {¶14} The overriding purposes of felony sentencing in Ohio “are to protect the

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

2929.11(A). “A sentence imposed for a felony shall be reasonably calculated to achieve

the two overriding purposes of felony sentencing set forth in division (A) of this section,

commensurate with and not demeaning to the seriousness of the offender's conduct

and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.11(B).

      {¶15} It is well-recognized that a sentencing court “has discretion to determine

the most effective way to comply with the purposes and principles of sentencing." R.C.

2929.12(A). And the Ohio Supreme Court has emphasized a sentencing court has “full

discretion to impose a prison sentence within the statutory range.” State v. Mathis, 109

Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus; State v. Ries, 11th Dist.

Portage No. 2008-P-0064, 2009-Ohio-1316, ¶13 ("[s]uch discretion is plenary").



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Therefore, “the trial court is not obligated, in the exercise of its discretion, to give any

particular weight or consideration to any sentencing factor.” State v. Holin, 174 Ohio

App.3d 1, 2007-Ohio-6255, ¶34 (11th Dist.).

       {¶16} Moreover, although a court must consider the seriousness and recidivism

factors of R.C. 2929.12, it need not make findings regarding these factors to impose the

maximum prison term. There is no legal requirement that “the sentencing judge must

use specific language or make specific findings on the record in order to evince the

requisite consideration of the applicable seriousness and recidivism factors.” State v.

Hutchings, 11th Dist. Portage Nos. 2011-P-0019, 2011-P-0020, 2011-P-0021, and

2011-P-0022, 2012-Ohio-649, ¶36, quoting State v. Arnett, 88 Ohio St.3d 208, 215

(2000). “[A] silent record raises a presumption that the relevant statutory factors were

duly considered before the sentencing determination was made.” (Citation omitted.)

State v. Overstreet, 11th Dist. Portage No. 2012-P-0049, 2013-Ohio-540, ¶26.

       {¶17} In this case, the trial court stated, in its judgment, that it considered the

purposes of felony sentencing, the statements of counsel, and the PSI. Although the

trial court did not state in the judgment entry on sentence it had considered the R.C.

2929.12 factors, we must nevertheless presume the trial court considered the statutory

factors in fashioning the sentence.

       {¶18} Further, the transcript of the sentencing hearing demonstrates the trial

court, at the least, considered the seriousness of appellant’s conduct. In particular, the

trial court was struck that appellant’s actions placed all inhabitants of the apartment

building in harm’s way. R.C. 2929.12(B) instructs the sentencing court to consider “any

other relevant factor, * * * indicating that the offender’s conduct is more serious than



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conduct normally constituting the offense * * *.” The court’s observation regarding the

severity of appellant’s recklessness indicates it considered the seriousness factors

under R.C. 2929.12(B) in selecting its sentence. Under the circumstances, we conclude

the trial court acted within its discretion in sentencing appellant to the maximum term of

imprisonment.

         {¶19} Appellant’s second assignment of error is without merit.

         {¶20} The judgment of the Portage County Court of Common Pleas is therefore

affirmed.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.


                                ______________________


COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.

         {¶21} I concur in the majority’s reasoning and disposition of the assignments of

error. I write separately simply to note my belief that Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, is no longer applicable when the courts of appeal review alleged sentencing

errors. As I have written before, I believe the changes to Ohio’s sentencing statutes

enacted through H.B. 86 mandate that the courts of appeal apply R.C. 2953.08(G)(2)

and the clear and convincing standard set forth therein to alleged sentencing errors.

See e.g. State v. Blair-Walker, 11th Dist. Portage No. 2012-P-0125, 2013-Ohio-4118,

¶7-20.

         {¶22} I concur.



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