[Cite as State v. Rogowski, 2012-Ohio-2557.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.    11CA010046

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
SEAN A. ROGOWSKI                                       COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   10CR081463

                                 DECISION AND JOURNAL ENTRY

Dated: June 11, 2012



        DICKINSON, Judge.

                                               INTRODUCTION

        {¶1}     After getting drunk, Sean Rogowski and a friend threw Molotov Cocktails at a

freight train, almost injuring the conductor and derailing the train. The Grand Jury indicted Mr.

Rogowski for arson, railroad vandalism, and unlawful possession of dangerous ordnance. He

pleaded no contest, and the trial court found him guilty of the offenses. At sentencing, it merged

the railroad vandalism charge into the arson charge and sentenced him to maximum, consecutive

sentences. Mr. Rogowski has appealed his sentence, assigning as error that the court failed to

properly consider the applicable sentencing factors. We reverse because the trial court failed to

consider the information presented at the sentencing hearing before imposing sentence.

                                                SENTENCING

        {¶2}     In State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, ¶ 4, a plurality of the

Ohio Supreme Court determined that, in light of State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-
                                                   2


856, when appellate courts review criminal sentences, they must follow a “two-step approach.”

The first step is to determine whether the sentence is contrary to law. Kalish, 2008-Ohio-4912,

at ¶ 4. The second step is to determine whether the court exercised proper discretion in imposing

the term of imprisonment. Id. at ¶ 26. The parties agree that Kalish provides the correct

standard of review in this case.

        {¶3}    Under Section 2929.19(A) of the Ohio Revised Code, a sentencing court “shall

hold a sentencing hearing before imposing a sentence . . . upon an offender who was convicted of

or pleaded guilty to a felony . . . .” “At the hearing, the offender, the prosecuting attorney, the

victim . . . , and, with the approval of the court, any other person may present information

relevant to the imposition of sentence in the case.” Id. “At the sentencing hearing, the court,

before imposing sentence, shall consider the record, any information presented at the hearing by

any person pursuant to division (A) of this section, and, if one was prepared, the presentence

investigation report . . . and any victim impact statement . . . .”

        {¶4}    At the sentencing hearing, a Federal Bureau of Investigation special agent

recounted Mr. Rogowski’s illegal acts and explained the federal charges that he could have faced

for his conduct. He also read a statement from the conductor of the train, who was unable to

attend the hearing because of medical issues. The court also heard from a fire district chief who

explained the dangers of Molotov Cocktails, the railroad’s safety superintendent, and the pilot

engineer of the train. Mr. Rogowski’s lawyer noted that Mr. Rogowski did not have a criminal

history and argued that his client had taken responsibility for his actions, which he characterized

as a stupid teenage mistake. Finally, Mr. Rogowski spoke and apologized for his conduct, said

that he had stopped drinking alcohol, had completed a drug and alcohol class, and had obtained a

job.
                                                 3


       {¶5}    After Mr. Rogowski finished speaking, the court noted that the federal

government had considered whether to prosecute him and his co-defendant, but had deferred to

the state. It also noted that, because Mr. Rogowski’s conduct created a substantial risk of serious

physical harm, the Grand Jury could have indicted him for aggravated arson, a felony of the first

degree. It then stated: “the record should reflect that I prepared the sentencing entries in this

case before I heard the remarks from the gentlemen that appeared here today, and when I

prepared these sentencing entries, at that time I could not have been influenced by anyone who

spoke today.” It went on to explain that “I knew what I was going to do before I met [the men

who spoke at the sentencing hearing]. Nobody pressures me.”

       {¶6}    The record demonstrates that the trial court failed to comply with Section

2929.19(B)(1) of the Ohio Revised Code.          That section specifically provides that, “before

imposing sentence,” the court “shall consider . . . any information presented at the hearing . . . .”

The court admitted that it determined Mr. Rogowski’s sentence before receiving any information

at the hearing. Mr. Rogowski’s assignment of error is sustained.

                                          CONCLUSION

       {¶7}    The trial court failed to consider the information presented at the sentencing

hearing before imposing Mr. Rogowski’s sentence.            The judgment of the Lorain County

Common Pleas Court is reversed, and this matter is remanded for a new sentencing hearing.

                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



MOORE, P.J.
BELFANCE, J.
CONCUR.


APPEARANCES:

PAUL GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
