[Cite as State v. Garrett, 2011-Ohio-691.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Julie A. Edwards, J.
-vs-
                                                    Case No. 2010 CA 00210
JAMIE GARRETT

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2010 CR 00076


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          February 14, 2011



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN FERRERO                                    EUGENE O'BYRNE
PROSECUTING ATTORNEY                            101 Central Plaza South
RENEE WATSON                                    Suite 500
ASSISTANT PROSECUTOR                            Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010 CA 00210                                                   2

Wise, J.

       {¶1}   Defendant-Appellant Jamie Garrett appeals the July 7, 2010, decision of

the Stark County Court of Common Pleas revoking his community control and imposing

his previously suspended sentence.

                       STATEMENT OF THE CASE AND FACTS

       {¶2}   The relevant facts are as follows:

       {¶3}   On February 4, 2010, Appellant Jamie Garrett was indicted on one count

of menacing by stalking, in violation of R.C. §2903.21(A)(1)(B) and/or (C), a fourth

degree felony, and seven counts of violating a protection order, in violation of R.C.

§2919.27(A)(1), felonies of the fifth degree.

       {¶4}   On March 8, 2010, Appellant entered a plea of guilty as charged.

       {¶5}   On April 5, 2010, following a pre-sentence investigation, the trial court

sentenced Appellant to a three-year period of community control, with the first year to

be served in the intensive supervision program.1         The conditions of Appellant’s

community control included, inter alia, a prohibition from using alcohol, no contact with

anyone with a criminal record and instructions to follow all written and verbal orders of

his supervising officer. Appellant was also ordered to secure the permission of his

supervising officer before traveling outside of Stark County. The trial court reserved a

94 month prison sentence in the event that Appellant failed to comply with the terms

and conditions of his community control.

       {¶6}   On June 7, 2010, a motion to revoke or modify Appellant’s community

control was filed by his supervising officer.

1
 Conditions of Appellant’s intensive supervision included that Appellant spend the first
30 days on GPS house arrest and further comply with the Day Reporting program.
Stark County, Case No. 2010 CA 00210                                                  3


      {¶7}   On June 30, 2010, a hearing was held on the motion to revoke. At the

hearing, the trial court heard testimony from Arlune Culler, Appellant’s supervising

officer. Culler stated that Appellant violated the terms of his community control by

continuing to consume alcohol, associating with a convicted felon, even after being told

to cease such contact, and for violating his GPS monitoring. She further testified that

she had provided Appellant with a re-lapse prevention plan after he had self-reported

alcohol use but that he failed to meet the goals of such plan which included Day

Reporting, AA meetings and house arrest. Additionally, Culler personally observed beer

cans in Appellant’s trash on a number of occasions.

      {¶8}   Appellant presented no testimony or evidence.

      {¶9}   The trial court, based on the above, found that Appellant had violated the

terms and conditions of his community control and imposed the previously suspended

94-month prison sentence.

      {¶10} Appellant now appeals, assigning the following error for review:

                              ASSIGNMENT OF ERROR

      {¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO THE MAXIMUM SENTENCE OF NINETY-FOUR MONTHS.”

                                           I.

      {¶12} In his sole assignment of error, Appellant asserts that the trial court

abused its discretion in imposing a maximum sentence of ninety-four months. We

disagree.

      {¶13} The right to continue on community control depends on compliance with

community control conditions and “is a matter resting within the sound discretion of the
Stark County, Case No. 2010 CA 00210                                                  4

court.” State v. Schlecht, 2nd Dist. No.2003-CA-3, 2003-Ohio-5336, citing State v.

Johnson (May 25, 2001), 2nd Dist. No. 17420.

      {¶14} In State v. Gullet, Muskingum App. No. CT2006-0010, 2006-Ohio-6564, ¶

22-23, this Court explained the following:

      {¶15} “In a probation revocation proceeding, the prosecution need not produce

evidence establishing a probation violation beyond a reasonable doubt. Rather, the

prosecution must present substantial proof that a defendant violated the terms of his or

her probation. State v. Hylton (1991), 75 Ohio App.3d 778, 600 N.E.2d 821; State v.

Mingua (1974), 42 Ohio App.2d 35, 327 N .E.2d 791; State v. Umphries (June 30,

1998), Pickaway App. No. 97CA45, unreported. Accordingly, in order to determine

whether a defendant's probation revocation is supported by the evidence, a reviewing

court should apply the ‘some competent, credible evidence’ standard set forth in C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. See State

v. Umphries (July 9, 1998), Pickaway App. No. 97CA45; State v. Puckett (Nov. 12,

1996), Athens App. No. 96CA1712. This highly deferential standard is akin to a

preponderance of evidence burden of proof. See State v. Kehoe (May 18, 1994),

Medina App. No. 2284-M. We see no difference in the standard of review between a

probation violation and a violation of community control sanctions.

      {¶16} “Once a court finds that a defendant violated the terms of probation, the

decision whether to revoke probation lies within the court's sound discretion. See State

v. Scott (1982), 6 Ohio App.3d 39, 452 N.E.2d 517; Umphries, supra; State v. Conti

(1989), 57 Ohio App.3d 36, 565 N.E.2d 1286; State v. Daque (Aug. 11, 1997), Ross

App. No. 96CA2256. Thus, a reviewing court will not reverse a trial court's decision
Stark County, Case No. 2010 CA 00210                                                      5

absent an abuse of discretion. State v. Sheets (1996), 112 Ohio App.3d 1, 677 N.E.2d

818.”

        {¶17} In the instant case, as set forth above, the trial court heard testimony from

Appellant’s probation officer that he violated the terms of his community control by

consuming alcohol, associating with a known felon, travelling outside of the county

without prior approval, violating his GPS monitoring and house arrest, failing to comply

with Day Reporting, and failing to attend AA meetings.

        {¶18} Based on such testimony, we find that the trial court did not abuse its

discretion in finding that Appellant violated the terms and conditions of his community

control and revoking same.

        {¶19} Appellant also argues that the trial court abused its discretion by

sentencing him to ninety-four months in prison.

        {¶20} At the outset, we note there is no constitutional right to an appellate review

of a criminal sentence. Moffitt v. Ross (1974), 417 U.S. 600, 610-11, 94 S.Ct. 2437,

2444, 41 L.Ed.2d 341; McKane v. Durston (1894), 152 U.S. 684, 687, 14 S.Ct. 913.

917; State v. Smith (1997), 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668; State v.

Firouzmandi, 5th Dist No. 2006-CA-41, 2006-Ohio-5823. An individual has no

substantive right to a particular sentence within the range authorized by statute.

Gardner v. Florida (1977), 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d

393; State v. Goggans, Delaware App.No. 2006-CA-07-0051, 2007-Ohio-1433 at ¶ 28.

In other words “[t]he sentence being within the limits set by the statute, its severity

would not be grounds for relief here even on direct review of the conviction ... It is not
Stark County, Case No. 2010 CA 00210                                                        6


the duration or severity of this sentence that renders it constitutionally invalid....”

Townsend v. Burke (1948), 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690.

       {¶21} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124. 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.

       {¶22} This Court has previously held that as a plurality opinion, Kalish is of

limited precedential value. State v. White, Stark App.No. 2009-CA-00111 , 2009-Ohio-

6447; See also Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323

(characterizing prior case as “of questionable precedential value inasmuch as it was a

plurality opinion which failed to receive the requisite support of four justices of this court

in order to constitute controlling law”). See, also, State v. Franklin (2009), 182 Ohio

App.3d 410, 912 N.E.2d 1197, 2009-Ohio-2664 at ¶ 8. “Whether Kalish actually clarifies

the issue is open to debate. The opinion carries no syllabus and only three justices

concurred in the decision. A fourth concurred in judgment only and three justices

dissented.” State v. Ross, 4th Dist. No. 08CA872, 2009-Ohio-877, at FN 2; State v.

Welch, Washington App. No. 08CA29, 2009-Ohio-2655 at ¶ 6; State v. Ringler (Nov. 4,

2009), Ashland App. No. 09-COA-008. Nevertheless, until the Supreme Court of Ohio

provides further guidance on the issue, we will continue to apply Kalish to appeals
Stark County, Case No. 2010 CA 00210                                                         7

involving felony sentencing State v. Welch, supra; State v. Reed, Cuyahoga App. No.

91767, 2009-Ohio-2264 at FN2; State v. Ringler, supra.

       {¶23} The Supreme Court held, in Kalish, that the trial court's sentencing

decision was not contrary to law. “The trial court expressly stated that it considered the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12.

Moreover, it properly applied post release control, and the sentence was within the

permissible range. Accordingly, the sentence is not clearly and convincingly contrary to

law.” Kalish at ¶ 18. The Court further held that the trial court “gave careful and

substantial deliberation to the relevant statutory considerations” and that there was

“nothing in the record to suggest that the court's decision was unreasonable, arbitrary,

or unconscionable.” Kalish at ¶ 20; State v. Wolfe, Stark App.No. 2008-CA-00064,

2009-Ohio-830 at ¶ 25.

       {¶24} 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.

       {¶25} Accordingly, if Appellant violates his community control sanctions, the trial

court must conduct a second sentencing hearing following the community-control

violation and at that time comply with the decision in Foster. Thus, at the time of the

second sentencing hearing, Appellant could be sentenced to a term of incarceration

either less than, but not more than, the ninety-four (94) month term that the court

advised at the original sentencing hearing held on April 5, 2010. The trial court has full
Stark County, Case No. 2010 CA 00210                                                        8


discretion to impose a prison sentence within the statutory range and is no longer

required to make findings or give reasons for imposing maximum, consecutive, or more

than the minimum sentences. State v. Hines, Ashland App. No. 2005-COA-046, 2006-

Ohio-4053 at ¶ 9; State v. Wolfe, supra.

      {¶26} In the case at bar, at the original sentencing hearing in this case, the trial

court notified Appellant that the prison term to be imposed upon revocation of his

community control sanction would be ninety-four (94) months. (See, Judgment Entry,

filed April 9, 2010). When the trial court subsequently revoked Appellant's community

control, it imposed that very sentence.

      {¶27} Upon review, we find that the trial court's sentence of seventeen (17)

months on the charge of menacing by stalking, a felony of the fourth degree, complies

with the statutory sentencing range of 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, or 18

months. We further find that the trial court's sentences of eleven (11) months on each

of the charges of fifth degree felonies of violating a protection order, complies with the

statutory sentencing range of 6, 7, 8, 9, 10, 11 or 12 months.

      {¶28} Furthermore, the record reflects that the trial court considered the

purposes and principles of sentencing and the seriousness and recidivism factors as

required in R.C. §2929.11 and §2929.12 and also advised Appellant regarding post

release control. Therefore, the sentence is not clearly and convincingly contrary to law.

      {¶29} Having determined that the sentence is not contrary to law, we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.

Firouzmandi, Licking App.No. 2006-CA-41, 2006-Ohio-5823 at ¶ 40. In reviewing the
Stark County, Case No. 2010 CA 00210                                                    9


record, we find that the trial court gave careful and substantial deliberation to the

relevant statutory considerations.

      {¶30} In the case at bar, the trial court conducted an evidentiary hearing upon

the motion to revoke Appellant's community control sanctions. Further, the trial court

had the benefit of a pre-sentence investigation report at the original sentencing hearing.

There is no evidence in the record that the judge acted unreasonably by, for example,

selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing

to consider pertinent factors, or giving an unreasonable amount of weight to any

pertinent factor. We find nothing in the record of Appellant's case to suggest that his

sentence was based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment. State v. Firouzmandi, supra at ¶ 43.

      {¶31} Based on the record, this Court cannot find that the trial court acted

unreasonably, arbitrarily, or unconscionably, or that the trial court violated Appellant's

rights to due process under the Ohio and United States Constitutions in its sentencing

Appellant to the term of ninety-four months incarceration. Further, the sentence in this

case is not so grossly disproportionate to the offense as to shock the sense of justice in

the community.
Stark County, Case No. 2010 CA 00210                                            10


      {¶32} Appellant’s sole assignment of error is overruled.

      {¶33} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                 JUDGES
Stark County, Case No. 2010 CA 00210                                         11


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
JAMIE GARRETT                             :
                                          :
       Defendant-Appellant                :         Case No. 2010 CA 00210




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
