[Cite as State v. Hall, 2011-Ohio-2609.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 2-10-37

        v.

CHRISTOPHER L. HALL, JR.,                                  OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2010-CR-106

                                       Judgment Affirmed

                              Date of Decision:   May 31, 2011




APPEARANCES:

        Gerald F. Siesel for Appellant

        Amy Otley Beckett for Appellee
Case NO. 2-10-37



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Christopher L. Hall, Jr. (“Hall”) brings this

appeal from the judgment of the Court of Common Pleas of Auglaize County

sentencing him to consecutive sentences. For the reasons set forth below, the

judgment is affirmed.

       {¶2} During June 2010, a series of burglaries occurred in rural areas of

Auglaize County.        On June 28, 2010, Sgt. Detective Jerry Sawmiller

(“Sawmiller”) of the Auglaize County Sherriff’s Office was informed by the Allen

County Sheriff’s office that Hall and Joshua Weimert (“Weimert”) had admitted to

committing burglaries in Auglaize County. Sawmiller was advised to speak with

Ashley Hall (“Ashley”), the girlfriend of Weimert. When questioned, Ashley told

Sawmiller that Hall and Weimert were burglarizing homes in Auglaize County

and selling the stolen property. On July 2, 2010, Sawmiller interviewed Weimert

and Hall. Weimert eventually confessed that both he and Hall had committed the

series of burglaries in Auglaize County.

       {¶3} On August 12, 2010, the Auglaize County Grand Jury indicted Hall on

ten counts of burglary, theft, and theft of firearms, ranging from a second degree

felony, eight third degree felonies, and one fifth degree felony. Hall entered a plea

of not guilty to each of the counts on September 1, 2010. On October 15, 2010,

Hall entered into a written plea agreement with the state. Pursuant to the plea

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agreement, Hall agreed to enter a guilty plea to three counts of burglary and one

count of theft of a firearm, all felonies of the third degree and to pay restitution in

the amount of $5,900.00. In exchange, the State agreed to dismiss all other

charges, and to recommend four five year sentences to be served consecutively for

a total of twenty years in prison. The trial court accepted the plea agreement and

proceeded to conduct an immediate sentencing hearing. The State, as per the

agreement, recommended a sentence of twenty years in prison.                Hall then

presented evidence in mitigation for a lesser sentence. After addressing Hall, the

trial court sentenced Hall to three prison terms of four years and one of five years

to be served consecutively for a total prison term of seventeen years. Hall appeals

from this judgment and raises the following assignments of error.

                            First Assignment of Error

       The trial court’s sentence of [Hall] to consecutive sentences
       totaling seventeen years was contrary to law and further
       constituted an abuse of discretion in failing to properly consider
       and apply the felony sentencing guidelines set forth in R.C.
       2929.11 and 2929.12.

                           Second Assignment of Error

       [Hall’s] consecutive sentences violated [Hall’s] right to due
       process under the Sixth and Fourteenth Amendments of the
       United States Constitution and Sections Five and Sixteen, Article
       I and Section Four, Article IV of the Ohio Constitution.




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Case NO. 2-10-37



         {¶4} In the first assignment of error, Hall claims that the imposition of

consecutive sentences was contrary to law because the trial court did not correctly

apply the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12. The

standard of review for sentences was addressed in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912. In Kalish, four of seven panel members1 noted that R.C.

2953.08(G) requires that appellate courts require appellants to meet a clearly and

convincingly contrary to law standard of review when reviewing a sentence. Id.

For example, if the appellant clearly and convincingly proves that the sentencing

court ignored R.C. 2929.12, the judgment would be contrary to law. However, if

the appeal is based upon the proper application of R.C. 2929.12(B) through (D),

four of seven panel members2 in Kalish determined the appropriate standard of

review is abuse of discretion. Id. See also State v. Hubbard, 2d Dist. No. 23363,

2010-Ohio-3910. Trial courts have discretion to impose a prison sentence within

the statutory range for the offense from which the conviction stems. State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

         {¶5} Hall argues that the trial court erred by not affirmatively indicating

that it considered the factors set forth in R.C. 2929.11 and 2929.12. The question

of whether the trial court considered the factors is reviewed under the clearly and

1
  Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment all reached
this conclusion.
2
  Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment all agreed that for
a review of the application of R.C. 2929.12(B) factors, the judgment is reviewed for an abuse of discretion.

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Case NO. 2-10-37



convincingly contrary to law standard. See State v. Ditto, 3d Dist. No. 12-09-08,

2010-Ohio-1503. “Although the trial court is required to consider the factors set

forth in [R.C. 2929.11 and 2929.12], the trial court is not required to either discuss

the factors on the record or even to state that the factors were considered on the

record as long as the record is sufficient for a court to determine that the

consideration occurred.”     Id. at ¶4.    This court notes that in this case, no

presentence investigation occurred. There was also some confusion as to the

background of this defendant versus that of his codefendant. See Tr. at 22-23.

However, at the sentencing hearing, Hall was questioned by both his attorney and

the trial court. That questioning raised several of the factors set forth in R.C.

2929.11 and R.C. 2929.12. The journal entry then stated that it had considered the

“principles and purposes of sentencing under [R.C. 2929.11] and has balanced the

seriousness and recidivism factors under [R.C. 2929.12].” Oct. 15, 2010, entry at

3. Thus, Hall has failed to show by clear and convincing evidence that the

judgment was contrary to law.

       {¶6} Hall also claims that the trial court erred in applying the factors set

forth in R.C. 2929.12(B-E). This claim, unlike the others is reviewed under an

abuse of discretion standard because R.C. 2929.12(A) specifically places the

application within the sound discretion of the trial court. Ditto, supra at ¶4. A

review of the sentencing record reveals that the trial court questioned Hall

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concerning the economic harm caused to the victims, Hall’s prior and continuing

drug use, the potential for physical harm to the victims of the thefts, and Hall’s

prior juvenile record among other factors. The record therefore, indicates that the

trial court did not abuse its discretion in applying the factors set forth in R.C.

2929.12. The first assignment of error is overruled.

       {¶7} In the second assignment of error, Hall alleges that the trial court

denied his due process rights by sentencing him to consecutive sentences. Hall

argues that the decision by the Supreme Court in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-586, 845 N.E.2d 470, wrongly severed the requirement that the trial

court make findings before imposing consecutive sentences. However, the Ohio

Supreme Court in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d

768, held that the holding in Foster, was still valid. The Supreme Court admitted

that the logic used to decide Foster was called into question, but held that since it

was not reversed by the U.S. Supreme Court, it was still the law and only the

legislature could reenact the severed provisions of the statute. Since Hall was

sentenced pursuant to the law in effect at the time of his sentencing, the judgment

does not violate Hall’s right to due process under the Constitution of the United

States or under the Ohio Constitution and the second assignment of error is

overruled.



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       {¶8} Having found no error prejudicial to the defendant, the judgment of

the Court of Common Pleas of Auglaize County is affirmed.

                                                            Judgment Affirmed

SHAW and PRESTON, J.J., concur in judgment only.

/jlr




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