[Cite as State v. Peters, 2012-Ohio-1116.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                          Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-0098
MICHAEL T. PETERS                               :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Licking County
                                                    Court of Common Pleas, Case No. 2011-
                                                    CR-175

JUDGMENT:                                           Affirmed in part; vacated in part and
                                                    remanded

DATE OF JUDGMENT ENTRY:                             March 15, 2012

APPEARANCES:




For Plaintiff-Appellee                              For Defendant-Appellant

KENNETH OSWALT                                      WILLIAM T. CRAMER
Licking County Prosecutor                           470 Olde Worthington Road, Ste. 200
BY: EARL FROST                                      Westerville, OH 43082
20 South Second St., 4th Fl.
Newark, OH 43055
[Cite as State v. Peters, 2012-Ohio-1116.]


Gwin, P.J.

        {1}      On July 6, 2011, appellant Michael T. Peters entered pleas of guilty to

thirteen counts of breaking and entering, felonies of the fifth-degree felony, in violation

of R.C. 2911.13.

        {2}      At a subsequent sentencing hearing, the trial court considered the pre-

sentence investigation report (“PSI”), the statements of appellant’s counsel and

appellant’s statements. The trial court indicated that it had considered the purposes and

principles of sentencing under R.C. 2929.11, and the seriousness and recidivism factors

under R.C. 2929.12. The court then imposed six months on each count and set all

thirteen counts to run consecutively, for a total term of six-and-a-half years in prison.

Appellant has timely appealed raising the following assignments of error:

        {3}      “I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING SIX

MONTHS CONSECUTIVELY ON ALL THIRTEEN COUNTS OF FIFTH-DEGREE

FELONY BREAKING AND ENTERING, FOR A TOTAL TERM OF SIX-AND-A-HALF

YEARS.

        {4}      “II. THE TRIAL COURT VIOLATED R.C. 2967.28 BY IMPOSING THREE

YEARS OF POST-RELEASE CONTROL AT SENTENCING.”

                                                I.

        {5}      In his First Assignment of Error appellant argues that his consecutive

sentences in this case are contrary to the law and the trial court abused its discretion in

sentencing him to a six and one-half year prison term. We disagree.

        {6}      Recently in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio
Licking County, Case No. 2011-CA-0098                                                        3


St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 as it relates to the remaining sentencing

statutes and appellate review of felony sentencing. See, State v. Snyder, 5th Dist. No.

2008-CA-25, 2080-Ohio-6709, 2008 WL 5265826.

       {7}    In Kalish, the Court discussed the affect of the Foster decision on felony

sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the

judicial fact-finding portions of R.C. 2929.14, holding that “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.” Kalish at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100,

See also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State

v. Firouzmandi, 5th Dist. No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175.

       {8}    In Kalish, the Court discussed the affect of the Foster decision on felony

sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the

judicial fact-finding portions of R.C. 2929.14, holding that “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.” Kalish at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100,

See also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State

v. Firouzmandi, supra.

       {9}    “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶
Licking County, Case No. 2011-CA-0098                                                    4

13, see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi, supra at ¶ 29.

      {10}   “Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised

judicial fact-finding portions of the sentencing scheme, an appellate court remains

precluded from using an abuse-of-discretion standard of review when initially reviewing

a defendant's sentence. Instead, the appellate court must ensure that the trial court has

adhered to all applicable rules and statutes in imposing the sentence. As a purely legal

question, this is subject to review only to determine whether it is clearly and

convincingly contrary to law, the standard found in R.C. 2953.08(G).” Kalish at ¶ 14.

      {11}   Therefore, Kalish holds that, in reviewing felony sentences and applying

Foster to the remaining sentencing statutes, the appellate courts must use a two-step

approach. “First, they must 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. If this first prong is satisfied, the

trial court's decision in imposing the term of imprisonment shall be reviewed under an

abuse of discretion standard.” Kalish at ¶ 4, State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470.

      {12}   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
Licking County, Case No. 2011-CA-0098                                                       5


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.

       {13}   In the case at bar, appellant was convicted of felonies of the fifth degree.

For a violation of a felony of the fifth degree, the potential sentence that a court can

impose is six, seven, eight, nine, ten, eleven, or twelve months. Appellant was

sentenced to a sentence of six months on each count.

       {14}   Upon review, we find that the trial court's sentencing on the charge

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects and appellant agrees that

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 sentence is

not clearly and convincingly contrary to law.

       {15}   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, supra at ¶ 40. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.

       {16}   Under Ohio law, judicial fact-finding is no longer required before a court

imposes consecutive or maximum prison terms. See State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,

846 N.E.2d 1. Instead, the trial court is vested with discretion to impose a prison term

within the statutory range. See Mathis, at ¶ 36. In exercising its discretion, the trial court
Licking County, Case No. 2011-CA-0098                                                      6


must “carefully consider the statutes that apply to every felony case [including] R.C.

2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides

guidance in considering factors relating to the seriousness of the offense and recidivism

of the offender [and] statutes that are specific to the case itself.” Id. at ¶ 37, 846 N.E.2d

1. Thus, post-Foster, “there is no mandate for judicial fact-finding in the general

guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42.

State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061, 2006 WL 2257068; State

v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753, 2006 WL 2257068, ¶ 7-8.

Therefore, post-Foster, trial courts are still required to consider the general guidance

factors in their sentencing decisions.

       {17}      There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and

recidivism or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431, 655

N.E.2d 820 (4th Dist. 1995); State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469,

2006 WL 771790, ¶ 60 (nothing in R.C. 2929.12 or the decisions of the Ohio Supreme

Court imposes any duty on the trial court to set forth its findings), citing State v. Cyrus,

63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v. Hughes, 6th Dist. No. WD-05-

024, 2005-Ohio-6405, 2005 WL 3254527, ¶ 10 (trial court was not required to address

each R.C. 2929.12 factor individually and make a finding as to whether it was applicable

in this case).

       {18}      Where the record lacks sufficient data to justify the sentence, the court

may well abuse its discretion by imposing that sentence without a suitable explanation.

Where the record adequately justifies the sentence imposed, the court need not recite
Licking County, Case No. 2011-CA-0098                                                  7

its reasons. State v. Middleton, 8th Dist. No. 51545, 1987 WL 5476 (Jan. 15, 1987). In

other words, an appellate court may review the record to determine whether the trial

court failed to consider the appropriate sentencing factors. State v. Firouzmandi, supra

at ¶ 52.

       {19}   Accordingly, appellate courts can find an “abuse of discretion” where the

record establishes that a trial judge refused or failed to consider statutory sentencing

factors. Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342 (1st Dist. 1978). An

“abuse of discretion” has also been found where a sentence is greatly excessive under

traditional concepts of justice or is manifestly disproportionate to the crime or the

defendant. Woosley v. United States, 478 F.2d 139, 147 (8th Cir. 1973). The imposition

by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject

to review. Woosley, supra at 143-145. Where the severity of the sentence shocks the

judicial conscience or greatly exceeds penalties usually exacted for similar offenses or

defendants, and the record fails to justify and the trial court fails to explain the

imposition of the sentence, the appellate courts can reverse the sentence. Woosley,

supra at 147. This by no means is an exhaustive or exclusive list of the circumstances

under which an appellate court may find that the trial court abused its discretion in the

imposition of sentence in a particular case. State v. Firouzmandi, supra.

       {20}   In the case at bar, 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
Licking County, Case No. 2011-CA-0098                                                   8


case to suggest that his sentence was based on an arbitrary distinction that would

violate the Due Process Clause of the Fifth Amendment.

      {21}   In the case at bar, the trial court conducted a sentencing hearing in open

court. Appellant concedes that the trial court considered statements from appellant and

his legal counsel; the overriding purposes of felony sentencing; the statutory factors set

forth in R.C. 2929.12 and 2929.13; the Pre-Sentence Investigation report, which

indicated that appellant had a prior criminal history, and had a history of substance

abuse; and the seriousness and recidivism factors, before deciding on a prison term of

six and one-half years.

      {22}   It appears to this Court that the trial court's statements at the sentencing

hearing were guided by the overriding purposes of felony sentencing to protect the

public from future crime by the offender and others and to punish the offender. R.C.

2929.11.

      {23}   Based on the record, the transcript of the sentencing hearing and the

subsequent judgment entry, 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. Further, the sentence in this case is not so grossly disproportionate to the

offense as to shock the sense of justice in the community.

      {24}   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 does not revive Ohio's former

consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which
Licking County, Case No. 2011-CA-0098                                                    9

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.

      {25}   “The trial court in this case did not err in imposing consecutive sentences

without applying R.C. 2929.14(E)(4) and 2929.41(A), and defendants such as Hodge

who were sentenced without application of the statutes are not entitled to resentencing.”

Id at ¶ 39-40. See, State v. Fry, 5th Dist. No. 10CAA090068, 2011-Ohio-2022 at ¶ 16-

17.

      {26}   In the case at bar, the trial court after noting appellant’s criminal history,

observed, “I mean, you have been ordered to treatment half a dozen times before on

your drunk driving convictions or your earlier felony offenses, and it’s never worked.”

Further, the trial court did not grant jail credit since the appellant was serving time on

another conviction in which his probation had been revoked.

      {27}   Upon review, we find no error as a matter of law in the trial court

sentencing appellant to the minimum, consecutive sentences or any abuse of discretion.

      {28}   Appellant’s First Assignment of Error is overruled.

                                               II.

      {29}   During sentencing, the trial court indicated: "Upon release from the

penitentiary, you'll be placed on post-release control for three years. If you violate the

terms of post-release control, you're subject to being returned to the penitentiary for

nine months or, for repeated violations, one-and-a-half years." The sentencing entry
Licking County, Case No. 2011-CA-0098                                                 10


similarly indicates, "The Court sentences the defendant to a period of three (3) years of

post-release control following any prison sentence imposed."

      {30}   In his Second Assignment of Error, appellant argues the trial court was not

authorized to impose three years of post-release control unilaterally at sentencing. R.C.

2967.28(C) provides that any sentence for a fifth-degree felony "shall include a

requirement that the offender be subject to a period of post-release control of up to

three years after the offender's release from imprisonment, if the parole board, .. . ,

determines that a period of post-release control is necessary for that offender." Under

R.C. 2967.28(D), the parole board is required to review a prisoner's criminal history and

the record of the prisoner's conduct while imprisoned before deciding whether to impose

post-release control. Thus, appellant contends post-release control for fifth degree

felonies is left to the discretion of the parole board, which must wait to review the

offender's conduct while in prison and need not impose a full three years of sanctions.

      {31}   Rather than void, appellant’s sentence with respect to post release control

is voidable, i.e. it is a judgment "rendered by a court that has both jurisdiction and

authority to act, but in which the court's judgment is invalid, irregular, or erroneous."

State v. Simpkins, 117 Ohio St.3d 420, 2008–Ohio–1197, 884 N.E.2d 568, ¶ 12,

superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d

173, 2009–Ohio–6434, 920 N.E.2d 958; State v. McKenna, 11th Dist. No. 2009-T-0034,

2009-Ohio-6154 at ¶84.

      {32}   Accordingly, we vacate the judgment of the trial court insofar as it relates

to the imposition of post release control and remand this cause to the trial court to

modify appellant’s sentence with respect to post release control so that appellant’s
Licking County, Case No. 2011-CA-0098                                                  11


sentence shall include a requirement that appellant be subject to a period of post-

release control of up to three years after appellant’s release from imprisonment, if the

parole board, in accordance with division (D) of R.C. 2967.28 determines that a period

of post-release control is necessary for appellant.

       {33}     Appellant’s Second Assignment of Error is sustained.

       {34}     For the foregoing reasons, the judgment of the Court of Common Pleas for

Licking County, Ohio is affirmed in part and vacated in part. We vacate the judgment of

the trial court insofar as it relates to the imposition of post release control and remand

this case to the trial court to modify appellant’s sentence with respect to post release

control so that appellant’s sentence shall include a requirement that appellant be

subject to a period of post-release control of up to three years after appellant’s release

from imprisonment, if the parole board, in accordance with division (D) of R.C. 2967.28

determines that a period of post-release control is necessary for appellant.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur



                                              _________________________________
                                              HON. W. SCOTT GWIN

                                              _________________________________
                                              HON. JOHN W. WISE

                                              _________________________________
                                              HON. JULIE A. EDWARDS
WSG:clw 0220
             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
                       Plaintiff-Appellee   :
                                            :
                                            :
-vs-                                        :       JUDGMENT ENTRY
                                            :
MICHAEL T. PETERS                           :
                                            :
                                            :
                   Defendant-Appellant      :       CASE NO. 2011-CA-0098



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

judgment of the Court of Common Pleas for Licking County, Ohio is affirmed in part and

vacated in part. We vacate the judgment of the trial court insofar as it relates to the

imposition of post release control and remand this case to the trial court to modify

appellant’s sentence with respect to post release control so that appellant’s sentence

shall include a requirement that appellant be subject to a period of post-release control

of up to three years after appellant’s release from imprisonment, if the parole board, in

accordance with division (D) of R.C. 2967.28 determines that a period of post-release

control is necessary for appellant.


                                                _________________________________
                                                HON. W. SCOTT GWIN

                                                _________________________________
                                                HON. JOHN W. WISE

                                                _________________________________
                                                HON. JULIE A. EDWARDS
