[Cite as State v. White, 2014-Ohio-1392.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
THOMAS WHITE                                 :       Case No. CT2013-0034
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2013-0020



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    March 27, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ROBERT L. SMITH                                      ERIC J. ALLEN
Assistant Prosecuting Attorney                       713 South Front Street
27 North Fifth Street                                Columbus, OH 43206
Zanesville, OH 43701
Muskingum County, Case No. CT2013-0034                                                  2




Baldwin, J.

        {¶1}   Appellant Thomas White appeals a judgment of the Muskingum County

Common Pleas Court convicting him of one count of perjury (R.C. 2921.11(A)) upon a

plea of guilty and sentencing him to 30 months incarceration. Appellee is the State of

Ohio.

                             STATEMENT OF FACTS AND CASE

        {¶2}   On January 30, 2013, appellant was indicted by the Muskingum County

Grand Jury with one count of perjury. He entered a guilty plea on April 29, 2013.

        {¶3}   The case proceeded to a sentencing hearing on June 10, 2013. At the

hearing, counsel asked that appellant’s sentence be imposed concurrent to the

sentence he was already serving on other charges. The court asked appellant if he had

anything he wanted to say in his own behalf. Appellant replied, “I’m sorry for lying under

oath, and I was worried about my family.” Sent. Tr. 4.

        {¶4}   The court stated that it had reviewed the presentence investigation. The

court also noted that the perjury took place during the trial of a man charged with

several serious crimes, including shooting appellant. The court sentenced appellant to

a term of incarceration of 30 months, to be served consecutive to all the other

sentences appellant was currently serving.

        {¶5}   Appellant assigns a single error on appeal:

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

DEFENDANT TO THIRTY MONTHS IN PRISON.”
Muskingum County, Case No. CT2013-0034                                                     3

      {¶7}     The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–

Ohio–4912, 896 N.E.2d 124, set forth a two step process for examining felony

sentences. 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.” Id. at ¶ 4. If this first step is

satisfied, the second step requires that the trial court's decision be reviewed under an

abuse of discretion standard. Id. An abuse of discretion implies that the court's attitude

is unreasonable, arbitrary, or unconscionable. Id. at ¶19.

      {¶8}     Appellant concedes that his 30-month sentence is not contrary to law, as

R.C. 2929.14(A)(3) provides for a maximum sentence of 36 months. Appellant argues

that the sentence is an abuse of discretion. He admits that the record is scant in

regards to his fear for his family when he testified falsely in the earlier trial, but argues

that the court failed to take that fear into consideration as mitigation. He also cites to

other cases from this district where defendants were sentenced to less than 30 months

for perjury.

      {¶9}     Appellant has not demonstrated that the court abused its discretion in

sentencing him to 30 months incarceration. The judge stated on the record that he had

reviewed the presentence investigation report.       The court noted on the record that

appellant had lied on the stand during a trial of a man charged with several serious

crimes, including shooting appellant. Although appellant stated that he was worried for

his family, the record does not demonstrate why appellant was concerned for his family

or how his concern was connected to his perjured testimony. The record does not
Muskingum County, Case No. CT2013-0034                                              4


support appellant’s claim that the court abused its discretion in sentencing him to 30

months incarceration.

      The assignment of error is overruled. The judgment of the Muskingum County

Common Pleas Court is affirmed. Costs are assessed to appellant.



By: Baldwin, J.

Hoffman, P.J. and

Farmer, J. concur.
