[Cite as State v. Hobby, 2017-Ohio-6957.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2017 CA 0025
JASON R. HOBBY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2016 CR 0338


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        July 24, 2017



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

GARY BISHOP                                   WILLIAM C. FITHIAN, III
PROSECUTING ATTORNEY                          111 North Main Street
JOSEPH C. SNYDER                              Mansfield, Ohio 44902
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2017 CA 0025                                                    2

Wise, John, J.

       {¶1}   Appellant Jason R. Hobby appeals the sentence imposed on him by the

Richland County Common Pleas Court following a guilty plea to one count of Possession

of Heroin.

       {¶2}   Appellee is State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On June 14, 2016, Appellant Jason R. Hobby was indicted on one count of

possession of heroin, in violation of R.C. §2925.11 (A) and (C)(6)(a), a felony of the fifth

degree.

       {¶4}   On December 20, 2016, Appellant entered a plea of guilty to the charge.

       {¶5}   On January 18, 2017, after Appellant failed to show for sentencing, a bench

warrant was issued for his arrest.

       {¶6}   Appellant was located and sentencing occurred on February 22, 2017. The

trial court sentenced Appellant to twelve (12) months in prison, three years discretionary

post-release control, and $40 in restitution to the crime lab. Trial counsel objected to the

maximum sentence (T. at 20).

       {¶7}   Appellant now appeals, assigning the following error for review:

       {¶8}      “I. THE TRIAL COURT’S SENTENCE OF TWELVE MONTHS ON A FIFTH

DEGREE FELONY IS CONTRARY TO LAW AND IS REVERSIBLE ERROR.”

                                             I.

       {¶9}   In his sole Assignment of Error, Appellant claims his sentence is contrary to

law. We disagree.
Richland County, Case No. 2017 CA 0025                                                    3


       {¶10} Initially we note that pursuant to R.C. §2953.08(A)(1), Appellant is entitled

to appeal as of right the maximum sentence imposed on his conviction.

       {¶11} A trial court's imposition of a maximum prison term for a felony conviction is

not contrary to law as long as the sentence is within the statutory range for the offense,

and the court considers both the purposes and principles of felony sentencing set forth in

R.C. §2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State

v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16.

       {¶12} 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).

       {¶13} 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.

       {¶14} 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
Richland County, Case No. 2017 CA 0025                                                    4


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.

       {¶15} “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.

       {¶16} 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.

       {¶17} 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
Richland County, Case No. 2017 CA 0025                                                     5

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).

       {¶18} A review of the record shows that, prior to imposing sentence, the trial court

heard statements and reviewed evidence concerning both the seriousness of Appellant's

conduct and Appellant's risk of recidivism. The trial court heard evidence that Appellant

had positive drug screens while he was out on bond, two in August and two in October.

(T. at 16). The court also heard evidence that appellant failed to report to pretrial release

after the first day and further failed to make any of the required payments. Id. The trial

court also considered the fact that a bench warrant had to be issued when Appellant failed

to show for sentencing. Id. The trial court also considered the charges Appellant had

pending in Ashland County and had been to prison on two previous cases in 2010 and

2011. (T. at 17). The trial court stated that Appellant’s actions and criminal history were

such that a consecutive sentence with the pending Ashland County case would have

been warranted to protect the public and punish the offender. Id.

       {¶19} We find that the sentence of twelve (12) months was within the statutory

guidelines for a felony of the fifth degree. R.C. §2929.14(A)(5). Given Appellant's

extensive criminal record, his continued criminal behavior despite being incarcerated on

two different occasions, and Appellant's positive drugs screens, and failure to remain in

contact with pretrial services or appear for sentencing, the trial court was justified in
Richland County, Case No. 2017 CA 0025                                                    6


imposing the maximum sentence of twelve (12) months for Appellant's conviction for

Possession of Heroin. Therefore, the trial court did not impose an excessive sentence.

       {¶20} Accordingly, we find that the trial court considered the purposes and

principles of sentencing [R.C. §2929.11] as well as the factors that the court must consider

when determining an appropriate sentence. [R.C. §2929.12]. The trial court has no

obligation to state reasons to support its findings, nor is it required to give a talismanic

incantation of the words of the statute, provided that the necessary findings can be found

in the record and are incorporated into the sentencing entry.

       {¶21} Upon a thorough review, we find the record clearly and convincingly

supports the sentence imposed by the trial court. We find the trial court properly

considered the purposes and principles of sentencing and the seriousness and recidivism

factors as required in R.C. §2929.11, as well as the applicable factors set forth in R.C.

§2929.12, along with all other relevant factors and circumstances. While Appellant may

disagree with the weight given to these factors by the trial judge, the sentence of twelve

(12) months was within the statutory sentencing range for a fifth-degree felony, and

therefore, we have no basis for concluding that it is contrary to law.
Richland County, Case No. 2017 CA 0025                                            7


       {¶22} Appellant’s Assignment of Error is denied.

       {¶23} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.


By: Wise, John, J.

Gwin, P. J., and

Baldwin, J., concur.



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