[Cite as State v. Hartman, 2011-Ohio-6112.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                         Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                              :
-vs-                                          :
                                              :       Case No. CT2011-CA-19
TREVOR A. HARTMAN                             :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Muskingum
                                                  County Court of Common Pleas, Case No.
                                                  2010-CR-193



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT ENTRY:                           November 21, 2011


APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

MICHAEL HADDOX                                    ERIC J. ALLEN
MUSKINGUM COUNTY PROSECUTOR                       Law Offices of Eric J. Allen, Ltd.
27 North Fifth                                    713 South Front
Zanesville, OH                                    Columbus, OH 43206
[Cite as State v. Hartman, 2011-Ohio-6112.]


Gwin, P.J.

        {¶ 1} Defendant–appellant Trevor A. Hartman appeals from the imposition of a

five year prison sentence upon his convictions in the Muskingum County Court of

Common Pleas on one count of gross sexual imposition of a child under the age of

thirteen, a felony of the third degree in violation of R.C. 2907.05(A)(4) and one count of

attempted gross sexual imposition of a child under the age of thirteen, a felony of the

fourth degree in violation of R.C. 2907.04(A)(4) and R.C. 2923.02. Plaintiff-appellee is

the State of Ohio.

                               STATEMENT OF THE FACTS AND CASE1

        {¶ 2} A child, under the age of thirteen, was brought to Genesis Hospital in

Muskingum County for an infection. The hospital determined that the child had been

sexually assaulted and that she had a communicable disease. Upon interview, she

disclosed that the appellant had touched her vagina underneath her clothes. The child

further claimed that appellant masturbated while he touched her.

        {¶ 3} On September 15, 2010, an indictment was filed in the Muskingum County

Common Pleas Court, charging appellant with one count of Rape of a person under the

age of thirteen and one count of Gross Sexual Imposition of a person under the age of

thirteen.

        {¶ 4} On April 1, 2011, appellant entered guilty pleas to one count of Gross

Sexual Imposition of a person under the age of thirteen and one count of Attempted

Gross Sexual Imposition of a person under the age of thirteen. At a sentencing hearing


        1
           A detailed statement of the facts underlying appellant’s conviction is unnecessary to our
disposition of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of
error shall be contained therein.
Muskingum County, Case No. CT2011-CA-19                                                                3


held on May 2, 2011, the trial court merged the two counts for sentencing purposes.

The state elected to have appellant sentenced on the Gross Sexual Imposition charge

contained in Count 2 of the Indictment. The trial court thereafter sentenced appellant to

five (5) years in prison.

         {¶ 5} Appellant timely appeals his sentence raising the following assignment of

error:

         {¶ 6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

THE DEFENDANT TO THE MAXIMUM SENTENCE OF FIVE YEARS FOR

ATTEMPTED [SIC.] GROSS SEXUAL IMPOSITION.”2

                                                       I.

         {¶ 7} In his sole Assignment of Error appellant argues the trial court's imposition

of a maximum sentence was an abuse of discretion because it failed to consider all of

the required factors under R.C. 2929.11 and R.C. 2929.12. We disagree.

         {¶ 8} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124. 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.

         {¶ 9} As a plurality opinion, Kalish is of limited precedential value. See Kraly v.

Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case

         2
           We note that appellant was sentenced on the felony of the third degree, Gross Sexual
Imposition contained in Count 2 of the Indictment, and not Attempted Gross Sexual Imposition, a felony of
the fourth degree.
Muskingum County, Case No. CT2011-CA-19                                                    4


as "of questionable precedential value inasmuch as it was a plurality opinion which

failed to receive the requisite support of four justices of this court in order to constitute

controlling law"). See, State v. Franklin (2009), 182 Ohio App.3d 410, 912 N.E.2d 1197,

2009-Ohio-2664 at ¶ 8. "Whether Kalish actually clarifies the issue is open to debate.

The opinion carries no syllabus and only three justices concurred in the decision. A

fourth concurred in judgment only and three justices dissented." State v. Ross, 4th Dist.

No. 08CA872, 2009-Ohio-877, at FN 2; State v. Welch, Washington App. No. 08CA29,

2009-Ohio-2655 at ¶ 6.

       {¶ 10} Nevertheless, until the Supreme Court of Ohio provides further guidance

on the issue, we will continue to apply Kalish to appeals involving felony sentencing.

State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264 at n.

2; State v. Ringler, Ashland App. No. 09-COA-008, 2009-Ohio-6280 at ¶ 20.

       {¶ 11} In the first step of our analysis, we review whether the sentence is

contrary to law. In the case at bar, appellant was sentenced on a felony of the third

degree. Upon conviction for a felony of the third degree, the potential sentence that the

trial court can impose is one, two, three, four or five years. R.C. 29.14(A) (3). In the

case at bar, appellant was sentenced to five years.

       {¶ 12} Upon review, we find that the trial court's sentencing on the charge

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects 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
Muskingum County, Case No. CT2011-CA-19                                                      5


Code and advised appellant regarding post-release control. Therefore, the sentence is

not clearly and convincingly contrary to law.

       {¶ 13} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.

Firouzmandi, supra at ¶ 40.

       {¶ 14} In Kalish, the court discussed the affect of the Foster decision on felony

sentencing. The court stated that, in Foster, the Ohio Supreme 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,

Licking App. 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,
Muskingum County, Case No. CT2011-CA-19                                                  6

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 (1995), 101 Ohio App.3d 428, 431;

State v. Gant, Mahoning App. 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 (1992), 63 Ohio St.3d 164, 166; State v.

Hughes, Wood App. No. WD-05-024, 2005-Ohio-6405, at ¶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 at ¶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} Where the record lacks sufficient data to justify the sentence, the court

may well abuse its discretion by imposing that sentence without a suitable explanation.

Where the record adequately justifies the sentence imposed, the court need not recite

its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545. In other words, an

appellate court may review the record to determine whether the trial court failed to

consider the appropriate sentencing factors. State v. Firouzmandi, 5th Dist No. 2006-

CA41, 2006-Ohio-5823 at ¶ 52.

       {¶ 19} Accordingly, appellate courts can find an “abuse of discretion” where the

record establishes that a trial judge refused or failed to consider statutory sentencing
Muskingum County, Case No. CT2011-CA-19                                                 7

factors. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342. An “abuse

of discretion” has also been found where a sentence is greatly excessive under

traditional concepts of justice or is manifestly disproportionate to the crime or the

defendant. Woosley v. United States (1973), 478 F.2d 139, 147. The imposition by a

trial judge of a sentence on a mechanical, predetermined or policy basis is subject to

review. Woosley, supra at 143-145. Where the severity of the sentence shocks the

judicial conscience or greatly exceeds penalties usually exacted for similar offenses or

defendants, and the record fails to justify and the trial court fails to explain the

imposition of the sentence, the appellate court's can reverse the sentence. Woosley,

supra at 147. This by no means is an exhaustive or exclusive list of the circumstances

under which an appellate court may find that the trial court abused its discretion in the

imposition of sentence in a particular case. State v. Firouzmandi, supra.

      {¶ 20} In the case at bar, the court had the benefit of a pre-sentence investigation

report. We also note that we do not know the specific contents of the pre-sentence

investigation report or victim impact statement as appellant did not make them a part of

the record. In State v. Untied (March 5, 1998), Muskingum App. No. CT97-0018, we

addressed the issue of failure to include the pre-sentence investigation report and

stated:

      {¶ 21} “Appellate review contemplates that the entire record be presented. App.

R. 9. When portions of the transcript necessary to resolve issues are not part of the

record, we must presume regularity in the trial court proceedings and affirm. Knapp v.

Edwards Laboratories (1980), 61 Ohio St. 2d 197, 400 N.E. 2d 384. The pre-sentence

investigation report could have been submitted “under seal” for our review.
Muskingum County, Case No. CT2011-CA-19                                                  8


      {¶ 22} “Without the cited information and given the trial court (sic) findings on the

record, we cannot say appellant’s sentence was against the manifest weight of the

evidence, or ‘contrary to law’.” Id. at 7. See also, State v. Mills (September 25, 2003),

5th Dist. No. 03-COA-001 at paragraph, 13-15. Appellant has the responsibility of

providing the reviewing court with a record of the facts, testimony, and evidentiary

matters that are necessary to support the appellant's assignments of error. Wozniak v.

Wozniak (1993), 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506;              Volodkevich v.

Volodkevich (1989), 48 Ohio App.3d 313, 314, 549 N.E.2d 1237, 1238-1239.

      {¶ 23} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor. We find nothing in the record of appellant's case to suggest that

his sentence was based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment.

      {¶ 24} Accordingly, we overrule appellant's sole Assignment of Error.
Muskingum County, Case No. CT2011-CA-19                                         9


      {¶ 25} For the foregoing reasons, the judgment of the Muskingum County Court

of Common Pleas, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                        _________________________________
                                        HON. W. SCOTT GWIN

                                        _________________________________
                                        HON. JOHN W. WISE

                                        _________________________________
WSG:clw 1104                            HON. JULIE A. EDWARDS
[Cite as State v. Hartman, 2011-Ohio-6112.]


             IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                          :
                                                       :
                            Plaintiff-Appellee         :
                                                       :
                                                       :
-vs-                                                   :       JUDGMENT ENTRY
                                                       :
TREVOR A. HARTMAN                                      :
                                                       :
                                                       :
                       Defendant-Appellant             :       CASE NO. CT2011-CA-19




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment

of     the   Muskingum        County      Court   of        Common   Pleas,   Ohio,   is   affirmed.

Costs to appellant.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN

                                                           _________________________________
                                                           HON. JOHN W. WISE

                                                           _________________________________
                                                           HON. JULIE A. EDWARDS
