[Cite as State v. Ward, 2012-Ohio-1199.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97219



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                                vs.

                                      HAROLD WARD
                                              DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-549425

        BEFORE:           Cooney, J., Stewart, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED: March 22, 2012
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ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Gregory Mussman
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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COLLEEN CONWAY COONEY, J.:

       {¶1} Defendant-appellant, Harold Ward (“Ward”), appeals his sentences for

rape, felonious assault, and tampering with evidence.           Finding no merit to this appeal,

we affirm.

       {¶2} In May 2011, Ward was indicted on nine counts.                      In July 2011, he

accepted a plea agreement, pleading guilty to one count of rape with a sexual offender

specification, one count of felonious assault, and one count of tampering with evidence.

All remaining counts were nolled. The court sentenced him to ten years in prison for

rape, five years for felonious assault, and five years for tampering with evidence.              All

three sentences were ordered to run consecutively, for a total of 20 years in prison.

       {¶3} Ward now appeals, raising two assignments of error.

                                     Consecutive Sentences

       {¶4} In his first assignment of error, Ward argues that the trial court erred in

imposing consecutive sentences.           He argues that the court failed to perform the

statutorily mandated fact-finding functions under R.C. 2929.14.

       {¶5} Ward was sentenced prior to September 30, 2011, when H.B. 86 became

effective, thus we review Ward’s felony sentences using the Kalish framework.1                 State



        H.B. 86 “revives” judicial fact-finding prior to imposing consecutive sentences, set forth in
       1


R.C. 2929.14(C)(4). See State v. Du, 2d Dist. No. 2010-CA-27, 2011-Ohio-6306, at ¶ 23.
                                            4

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.        The Kalish court, in a

split decision, declared that in applying State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a

two-step approach.”     Kalish at ¶ 4.

       {¶6} Appellate courts must first “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 prong is

satisfied, then we next review the trial court’s decision under an abuse-of-discretion

standard.   Id. at ¶ 4, 19.

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

to law as required by R.C. 2953.08(G).

       {¶8} As the Kalish court noted, post-Foster, “trial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to make

findings and give reasons for imposing maximum, consecutive or more than the

minimum sentence.”       Id. at ¶ 11; Foster, paragraph seven of the syllabus; State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the

syllabus.   See also State v. Redding, 8th Dist. No. 90864, 2008-Ohio-5739;         State v.

Ali, 8th Dist. No. 90301, 2008-Ohio-4449; State v. McCarroll, 8th Dist. No. 89280,

2007-Ohio-6322; State v. Sharp, 8th Dist. No. 89295, 2007-Ohio-6324.            The Kalish

court declared that although Foster eliminated mandatory judicial fact-finding, it left R.C.
                                               5

2929.11 and 2929.12 intact. Kalish at ¶ 13. As a result, the trial court must still

consider these statutes when imposing a sentence.         Id., citing Mathis at ¶ 38.

       {¶9} R.C. 2929.11(A) provides that:

       [A] court that sentences an offender for a felony shall be guided by the
       overriding purposes of felony sentencing[,] * * * to protect the public from
       future crime by the offender and others and to punish the offender. To
       achieve those purposes, the sentencing court shall consider the need for
       incapacitating the offender, deterring the offender and others from future
       crime, rehabilitating the offender, and making restitution to the victim of
       the offense, the public, or both.

       {¶10} R.C. 2929.12 provides a nonexhaustive 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.

       {¶11} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not

fact-finding statutes like R.C. 2929.14.2        Kalish at ¶ 17.     Rather, they “serve as an

overarching guide for trial judges to consider in fashioning an appropriate sentence.”

Id.   Thus, “[i]n considering these statutes in light of Foster, the trial court has full

discretion to determine whether the sentence satisfies the overriding purposes of Ohio’s

sentencing structure.”    Id.


           In State v. Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768, 2010-Ohio-6320, the Ohio Supreme
       2


Court addressed Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), holding that Ice
“does not revive Ohio’s former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
2929.41(A), which were held unconstitutional in Foster. Trial court judges are not obligated to
engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly
enacts new legislation requiring that findings be made.” Hodge at paragraphs two and three of the
syllabus.
                                              6

       {¶12} In the instant case, we do not find Ward’s sentence contrary to law.       His

sentence is within the permissible statutory range for felonious assault, set forth in R.C.

2903.11, a second degree felony; rape, set forth in R.C. 2907.02(A)(2), a first degree

felony; and tampering with evidence, set forth in R.C. 2921.12(A), a third degree felony.

In the sentencing journal entry, the trial court acknowledged that it had considered all

factors of law and found that prison was consistent with the purposes of R.C. 2929.11.

On these facts, we cannot conclude that his sentence is contrary to law.

       {¶13} Having satisfied the first step, we next consider whether the trial court

abused its discretion.   Kalish at ¶ 4, 19.    An “abuse of discretion” is “‘more than an

error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’”    Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 NE2d 144 (1980).

       {¶14} Ward argues that the trial court abused its discretion in ordering that his

sentences run consecutively.    However, after a thorough review of the record, we find

that the trial court did not abuse its discretion in imposing a 20-year prison sentence.

The trial court properly considered the factors in R.C. 2929.12 and adhered to the

purposes and principles of sentencing set forth in R.C. 2929.11.           At the sentencing

hearing, the court expressed outrage in regard to the crimes and the terror Ward inflicted

on his victim.   The court also noted that Ward had a prior first degree felony conviction.

Thus, although the court was not required to make findings on the record to justify its
                                           7

sentence, the record demonstrates that the court considered the applicable factors and

principles, including recidivism factors and the need to punish the offender.

       {¶15} Moreover, the transcript reflects that Ward was given several opportunities

to withdraw his plea after learning that consecutive sentences were possible.      During

Ward’s plea hearing, the State specifically indicated that the three-count plea agreement

did not involve allied offenses and the trial court would have discretion whether to

impose consecutive sentences.      When asked by the court if Ward understood this,

Ward’s counsel agreed.     (Plea Hearing Tr. 7.)      Ward’s counsel accepted the State’s

recitation of the plea agreement as “a correct and complete outline.”    At the conclusion

of the plea hearing, the trial court gave Ward two additional opportunities to withdraw his

plea after being informed that consecutive sentences were possible.         Twice Ward’s

counsel verbally declined to withdraw the plea, and once Ward personally answered the

court’s question and declined to withdraw his plea.

       {¶16} Thus, we find nothing in the record to suggest that the trial court’s decision

was unreasonable, arbitrary, or unconscionable. Accordingly, the first assignment of

error is overruled.

                                     Allied Offenses

       {¶17} In his second assignment of error, Ward argues that the trial court failed to

merge his convictions as allied offenses at sentencing.
                                            8

       {¶18} Ward entered into a plea agreement whereby six of the nine counts were

nolled on the condition he plead guilty to rape, felonious assault, and tampering with

evidence.   At the hearing, the State stipulated that the charges were not allied offenses,

as the following discussion demonstrates:

       THE STATE: So for the record, Your Honor, we would — Also, the
       State would submit these are not allied offenses. You would have
       discretion whether or not to impose consecutive sentences for each of these
       counts.

       THE COURT: Mr. Haller [defense counsel], do you agree they’re not
       allied offenses?

       DEFENSE COUNSEL: May I have a moment, Your Honor?                  Yes, Your
       Honor.

       {¶19} When asked to address the court, defense counsel reiterated his affirmation

of the State’s presentation of the plea agreement by saying, “[t]hat is a correct and

complete outline of the post-plea agreement in this matter.”        Thus, defense counsel

agreed the offenses were not allied.

       {¶20} The Ohio Supreme Court, in State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1922, N.E.2d 923, ¶ 29, specifically declared:

       With respect to the argument that the merger of allied offenses will allow
       defendants to manipulate plea agreements for a more beneficial result than
       they bargained for, we note that nothing in this decision precludes the state
       and a defendant from stipulating in the plea agreement that the offenses
       were committed with separate animus, thus subjecting the defendant to
       more than one conviction and sentence. When the plea agreement is silent
       on the issue of allied offenses of similar import, however, the trial court is
       obligated under R.C. 2941.25 to determine whether the offenses are allied,
       and if they are, to convict the defendant of only one offense.
                                             9


In the instant case, the plea agreement is not silent as to the issue of allied offenses.   The

transcript clearly shows that the State and defense counsel agreed that the offenses were

not allied, and thus this issue is waived.

       {¶21} Furthermore, the facts of this case support a finding that Ward’s three

offenses are not allied offenses of similar import; thus, the court did not err in failing to

merge them.    The Ohio Supreme Court redefined the test for determining allied offenses

of similar import subject to merger under R.C. 2941.25 in State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Johnson court expressly overruled

State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), which required a “comparison

of the statutory elements in the abstract” to determine whether the statutory elements of

the crimes correspond to such a degree that the commission of one crime will result in the

commission of the other. The Johnson court held that rather than compare the elements

of the crimes in the abstract, courts must consider the defendant's conduct.        Johnson at

syllabus.   “If multiple offenses can be committed by the same conduct, then the court

must determine whether the offenses were committed by the same conduct, i.e., ‘a single

act, committed with a single state of mind.’” Id., quoting State v. Brown, 119 Ohio

St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50, (Lanzinger, J., dissenting).

       {¶22} Pursuant to Johnson, the State has set forth separate acts of conduct that

show Ward raped the victim by forcing her to engage in intercourse. He then tampered

with evidence when he forced the victim to bathe, thus washing away critical evidence.
                                            10

And finally, he committed felonious assault by forcing the victim down a flight of stairs,

causing her to fall and break her arm.    Therefore, the three offenses do not merge under

the facts of this case.

       {¶23} Accordingly, Ward’s second assignment of error is overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
