[Cite as State v. Bump, 2012-Ohio-337.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO

        Plaintiff-Appellee

-vs-

CHRISTOPHER M. BUMP

        Defendant-Appellant

JUDGES:
Hon. Patricia A. Delaney, P.J.
Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.

Case No. 11-COA-028

OPINION

CHARACTER OF PROCEEDING:                      Appeal from the Ashland County Common
                                              Pleas Court, Trial Court Number
                                              11-CRI-008

JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        January 27, 2012


APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

RAMONA FRANCESCONI ROGERS                     ERIN N. POPLAR
Ashland County Prosecutor                     Erin Poplar Law, LLC
110 Cottage Street, Third Floor               1636 Eagle Way
Ashland, Ohio 44805                           Ashland, Ohio 44805

PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Hoffman, J.


       (¶1)   Defendant-appellant Christopher M. Bump appeals his sentence entered

by the Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE CASE

       (¶2)   On February 25, 2011, the Ashland County Grand Jury indicted Appellant

on one count of grand theft of a vehicle, in violation of R.C. 2913.02(A)(1), a fourth

degree felony; one count of unauthorized use of a vehicle, in violation of R.C.

2913.02(A)(1), a fifth degree felony; and two counts of theft, in violation of R.C.

2913.02(A)(1), fifth degree felonies. At arraignment, Appellant entered pleas of not

guilty to all the charges.

       (¶3)   On April 26, 2011, Appellant changed his plea to guilty on Count II,

unauthorized use of a vehicle and Count III, theft. The State then moved to dismiss the

remaining counts of the Indictment.

       (¶4)   Via Sentencing Entry of June 24, 2011, the trial court sentenced Appellant

to ten months in prison on Count II, unauthorized use of a vehicle, and ten months on

Count III, theft. The court ordered the terms be served consecutively.

       (¶5)   Appellant now appeals, assigning as error:

       (¶6)   “THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE 10-

MONTH SENTENCES FOR TWO FIFTH DEGREE FELONY CONVICTIONS SUCH

THAT THE AGREEGATE [SIC] SENTENCE EXCEEDED THE MAXIMUM PRISON

TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR THE MOST SERIOUS

OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 12 MONTHS.”
       (¶7)   The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–

Ohio–4912 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.

       (¶8)   The relevant sentencing law is now controlled by the Ohio Supreme

Court's decision in State v. Foster, i.e. “ * * * 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.” 109 Ohio St.3d 1, 30, 2006–Ohio–856 at ¶ 100, 845 N.E.2d 470, 498.

       (¶9)   The record herein reflects Appellant was sentenced to a prison term of ten

months for the fifth degree felony of unauthorized use of a motor vehicle, and on the

fifth degree felony of theft, the court ordered Appellant also serve ten months. The

sentences were within the statutory guidelines and parameters.

       (¶10) The record further reflects 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 Code, and advised Appellant

regarding post release control. Therefore, the sentences are not clearly and

convincingly contrary to law.

       (¶11) Having determined the sentences are not contrary to law, we must now

review the sentences, pursuant to an abuse of discretion standard. Kalish at ¶ 4; State
v. Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.

       (¶12) The failure to indicate at the sentencing hearing the court has considered

the factors in R.C. 2929.11 and 2929.12 does not automatically require reversal. State

v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–5819, ¶ 8. “When the trial court does

not put on the record its consideration of R.C. 2929.11 and 2929.12, it is presumed that

the trial court gave proper consideration to those statutes.” Id., citing Kalish at ¶ 18, fn.

4. “The Code does not specify that the sentencing judge must use specific language or

make specific findings on the record in order to evince the requisite consideration of the

applicable seriousness and recidivism factors.” State v. Arnett, 88 Ohio St.3d 208, 215,

2000–Ohio–302.

       (¶13) Further, the Supreme Court of Ohio held in State v. Hodge, 128 Ohio

St.3d 1, 2010–Ohio–6320, “For all the foregoing reasons, we hold that the decision of

the United States Supreme Court in Oregon v. Ice [ (2009), 555 U.S. 160, 129 S.Ct.

711, 172 L.Ed.2d 517], 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

State v. Foster. Because the statutory provisions are not revived, 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.”

See, State v. Fry, Delaware App. No. 10CAA090068, 2011–Ohio–2022 at ¶ 16–17.

       (¶14) At the sentencing hearing in this matter, the trial court stated:

       (¶15) “In reviewing the Pre-Sentence Investigation Report, I note there are a

number of recidivism more than likely factors, and there is one recidivism less likely
factor in that you have had no prior Juvenile Delinquency adjudications, but quite a

history, criminal history as an adult.

       (¶16) “And the Court has considered and weighed those factors, and I am

further finding that, in fact, you have served a prior prison term, and that it’s appropriate

in this case after weighing the seriousness and recidivism factors, it’s finding that prison

is consistent with the purposes and principles of the Sentencing Statutes and that you

are not amenable to the Community Control Sanctions, because it appears to the Court

that the prior Courts have tried just about every conceivable Community Control

Sanction and you continue to commit crimes.

       (¶17) “I’m finding that you have the future ability to be employed, and to pay

financial sanctions, and further finding based on your prior criminal history and the fact

that it appears most of the types of crimes that you are committing, Mr. Bump, are not

victimless crimes, that, in fact, your crimes are having an impact on the lives of other

individuals, law-abiding citizens.

       (¶18) “And I am therefore finding that consecutive prison terms in this case are

necessary to protect the public and they are not disproportionate to the nature of the

crime.”

       (¶19) Tr. at 11-12

       (¶20) Based on the above, we find the trial court did not abuse its discretion in

imposing consecutive sentences. Appellant’s sole assignment of error is overruled.
      (¶21) Appellant's sentence in the Ashland County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur

                                       s/ William B. Hoffman _________________
                                       HON. WILLIAM B. HOFFMAN


                                       s/ Patricia A. Delaney _________________
                                       HON. PATRICIA A. DELANEY


                                       s/ W. Scott Gwin _____________________
                                       HON. W. SCOTT GWIN
            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
CHRISTOPHER M. BUMP                        :
                                           :
       Defendant-Appellant                 :         Case No. 11-COA-028


       For the reasons stated in our accompanying Opinion, Appellant's sentence in the

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




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN
