[Cite as State v. Shreve, 2013-Ohio-1167.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :      Hon. John W. Wise, J.
                                               :      Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :      Case No. 12-COA-037
KIM SHREVE                                     :
                                               :
                                               :
       Defendant-Appellant                     :      OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Ashland County Court of
                                                   Common Pleas, Case No. 12-CRI-074



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            March 25, 2013




APPEARANCES:

For Appellant:                                        For Appellee:
TIMOTHY E. POTTS                                      MARISSA M. PAPPAS
10 E. Main Street                                     Assistant Prosecuting Attorney
Ashland, OH 44805                                     110 Cottage Street, Third Floor
                                                      Ashland, OH 44805




Baldwin, J.
      {¶1} Appellant Kim Shreve appeals a judgment of the Ashland County

Common Pleas Court convicting him of domestic violence as a felony of the fourth

degree (R.C. 2929.25(A)) and sentencing him to eighteen months incarceration.

Appellee is the State of Ohio.

                            STATEMENT OF FACTS AND CASE

      {¶2} When Bernice Shreve, appellant’s wife, returned home from work on

June 11, 2012, she found appellant at home intoxicated. In an unprovoked attack,

appellant slapped her on both sides of her face and head-butted her. She was unable

to call for help because appellant kept her cell phone in his pocket.

      {¶3} Bernice reported the incident to the Ashland Police Department on June

12, 2012. Police photographed bruising and swelling on Bernice’s face. She told

police it was not uncommon for appellant to strike her.

      {¶4} On June 22, 2012, appellant was charged with one count of domestic

violence as a fourth degree felony by bill of information. He had two prior domestic

violence convictions.

      {¶5} Appellant entered a plea of guilty to the bill of information.   He was

convicted and sentenced to eighteen months incarceration. He assigns two errors on

appeal:

      {¶6}    “I. THE COURT OF COMMON PLEAS OF AHSLAND COUNTY, OHIO,

IMPOSED A MAXIMUM SENTENCE UPON DEFENDANT/APPELLANT PURSUANT

TO OHIO REVISED CODE SECTION 2929.14(A)(3); SAID MAXIMUM SENTENCE

WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE

OF SAID COURT’S DISCRETION.”
       {¶7} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON

STATE AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO

REVISED CODE SECTION 2929.13(A).”

                                             I.


       {¶8} Appellant argues that the court erred in sentencing him to the maximum

sentence. He argues that the sentence is contrary to law because none of the factors

set forth in R.C. 2929.12(B), which defines a “more serious” form of the offense, apply

in this case, and he is not likely to reoffend. He also argues that the court abused its

discretion in sentencing him to the maximum sentence because he has shown

genuine remorse for his offenses and accepted responsibility for his actions, and the

trial court “seemingly ignored this information.”

       {¶9} 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.” 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.

       {¶10} R.C. 2929.12(B) provides:

       {¶11} “(B) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as
indicating that the offender's conduct is more serious than conduct normally

constituting the offense:

       {¶12}   “(1)   The physical or mental injury suffered by the victim of the offense due

to the conduct of the offender was exacerbated because of the physical or mental

condition or age of the victim.

       {¶13} “(2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

       {¶14} “(3) The offender held a public office or position of trust in the community,

and the offense related to that office or position.

       {¶15} “(4) The offender's occupation, elected office, or profession obliged the

offender to prevent the offense or bring others committing it to justice.

       {¶16} “(5) The offender's professional reputation or occupation, elected office,

or profession was used to facilitate the offense or is likely to influence the future

conduct of others.

       {¶17} “(6) The offender's relationship with the victim facilitated the offense.

       {¶18} “(7) The offender committed the offense for hire or as a part of an

organized criminal activity.

       {¶19} “(8) In committing the offense, the offender was motivated by prejudice

based on race, ethnic background, gender, sexual orientation, or religion.”

       {¶20} In the instant case, appellant’s relationship with the victim, who was his

wife, facilitated the offense. Further, the trial court stated that he had considered the

provisions of R.C. Chapter 2929, the circumstances of the offense, the information

contained in the presentence investigation report and the information submitted by the
parties. The court found that appellant had previously served a prison term and the

shortest prison term would demean the seriousness of appellant’s conduct and not

adequately protect the public from future crimes by appellant. The sentence is not

contrary to law.

       {¶21} An abuse of discretion implies that the court’s attitude is unreasonable,

arbitrary, or unconscionable. Kalish, supra, at ¶19. Appellant has not demonstrated

that the court abused its discretion in sentencing him to the maximum sentence of

eighteen months.      Appellant had two prior domestic violence convictions, one

involving the same victim as the instant case. He also had a conviction for attempted

domestic violence.    His criminal history began in 1987 and is extensive, including

aggravated burglary, driving while intoxicated, driving under suspension, disorderly

conduct, resisting arrest, drug abuse, criminal damaging, felonious assault, ethnic

intimidation, aggravated menacing, receiving stolen property, petty theft, menacing,

possession of marijuana, open container, criminal trespass, possession of cocaine,

unauthorized use of a motor vehicle, hit-skip, fleeing and eluding and a probation

violation.   The court further expressed concern that despite appellant’s history of

violence, he had not sought counseling services through the Department of Veterans

Affairs.

       {¶22} The first assignment of error is overruled.




                                              II.
       {¶23} In his second assignment of error, appellant argues that a prison

sentence in the instant case is an unnecessary burden on state and local resources.

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

       {¶25} “(A) A court that sentences an offender for a felony shall be guided by

the overriding purposes of felony sentencing. The overriding purposes of felony

sentencing are to protect the public from future crime by the offender and others and

to punish the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local

government resources. 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.”

       {¶26} As we noted in State v. Ferenbaugh, 5th Dist. No. 03COA038, 2004–

Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial courts

discretion to impose sentences. Nowhere within the statute is there any guideline for

what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. No.2008–

COA036, 2009–Ohio–3105, this Court reviewed a similar claim. We found that,

although burdens on State resources may be a relevant sentencing criteria, state law

does not require trial courts to elevate resource conservation above seriousness and

recidivism factors. Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No.

97CA0019, 1997 WL 624811 (October 10, 1997).


       {¶27} In the instant case, a prison sentence is not an unnecessary burden on

state resources. Appellant has a lengthy criminal history and prior domestic violence
convictions, including one against the same victim. While he expressed remorse and

represented to the court that he is making positive changes in his life, given his

extensive past history with the criminal justice system and demonstrated past

propensity to reoffend, the court did not err in sentencing him to prison.

       {¶28} The second assignment of error is overruled.

       {¶29} The judgment of the Ashland County Common Pleas Court is affirmed.

Costs assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.



                                        HON. CRAIG R. BALDWIN



                                        HON. WILLIAM B. HOFFMAN



                                        HON. JOHN W. WISE


rad/CRB
                   IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No. 12-COA-037
KIM SHREVE                           :
                                     :
  Defendant - Appellant              :
                                     :


   For the reasons stated in our accompanying Opinion on file, the judgment of the

Ashland County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                     HON. CRAIG R. BALDWIN



                                     HON. WILLIAM B. HOFFMAN



                                     HON. JOHN W. WISE
