[Cite as State v. Pearce, 2012-Ohio-1348.]


                                        COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                        Plaintiff-Appellee     :      Hon. W. Scott Gwin, J.
                                               :      Hon. William B. Hoffman, J.
-vs-                                           :
                                               :      Case No. 11-COA-027
GREGORY A. PEARCE                              :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Ashland County Court of
                                                   Common Pleas, Case No. 11-CRI-014


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            March 19, 2012



APPEARANCES:

For Appellant:                                        For Appellee:

ERIN N. POPLAR                                        RAMONA FRANCESCONI ROGERS
Erin N. Poplar Law, LLC                               ASHLAND COUNTY PROSECUTOR
1636 Eagle Way
Ashland, OH 44805                                     PAUL T. LANGE
                                                      Assistant Prosecuting Attorney
                                                      110 Cottage St., 3rd Floor
                                                      Ashland, OH 44805
[Cite as State v. Pearce, 2012-Ohio-1348.]


Delaney, P.J.

        {¶1} Defendant-appellant Gregory A. Pearce appeals the June 24, 2011

sentencing entry of the Ashland County Court of Common Pleas. Plaintiff-appellee is

the State of Ohio.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} On February 25, 2011, Pearce was indicted by the Ashland County

Grand Jury on five counts of Trafficking in Cocaine in violation of R.C. 2925.03(A)(1),

one count of Trafficking in Heroin in violation of R.C. 2925.03(A)(2), one count of

Possession of Heroin in violation of R.C. 2925.11(A), one count of Possession of Drug

Instruments in violation of R.C. 2929.12(A), and one count of Possession of Drug

Paraphernalia in violation of R.C. 2925.14(C)(1).

        {¶3} Pearce entered a not guilty plea to all charges.         On April 26, 2011,

Pearce changed his plea to guilty to Count I, Trafficking in Cocaine, a felony of the

fourth degree; Count III, Trafficking in Cocaine, a felony of the fifth degree; Count VI,

Trafficking in Heroin, a felony of the fourth degree; Count VIII, Possession of Drug

Abuse Instruments, a second degree misdemeanor; and Count IX, Possession of Drug

Paraphernalia, a fourth degree misdemeanor.            The trial court granted the State’s

motion to dismiss Counts 2, 4, 5, and 7 of the indictment. The trial court ordered a

pre-sentence investigation and scheduled sentencing on June 20, 2011.

        {¶4} At the sentencing hearing, Pearce’s counsel addressed the court before

the imposition of sentence. Counsel spoke to the pre-sentence investigation report,

stating Pearce had approximately 19 years of alcohol and drug-related criminal

violations in his record.          Pearce never attended a residential treatment program
Ashland County, Case No. 11-COA-027                                                  3


because his previous violations were misdemeanor offenses. Counsel admitted the

number of trafficking counts was alarming, but that was because the Ashland Police

Department made Pearce’s arrest with a confidential informant. Counsel submitted

that with a presumption against prison and because almost all of Pearce’s offenses

were drug or alcohol related, Pearce would be better served in a residential treatment

program. The State recommended Pearce be sentenced to prison.

       {¶5} When sentencing Pearce, the trial court noted there were a number of

recidivism factors that would indicate Pearce was more likely to reoffend. The trial

court stated, “As Mr. Hyde has correctly noted, there are none of the nine factors that

are set forth in Revised Code Section 2929.13(B)(1) with regard to 4th or 5th Degree

felonies or continue to be drug offenses, however, I am finding that based on the

recidivism factors and the fact that you have such a history of criminal activity, I am

finding that prison is consistent with the purposes and principles of the Sentencing

Statutes * * *.” (T. 9.)

       {¶6} The trial court went on to sentence Pearce to 18 months on Count I, 12

months on Count III, 18 months on Count VI, 90 days on Count VIII, and 30 days on

Count IX. Count III was ordered to be served concurrently with Count I. Count VI was

ordered to be served consecutively to Counts I and III. The trial court stated with

respect to Count VI, it was appropriate based on Pearce’s criminal history that the

consecutive terms were needed to protect the public and a consecutive term on the

charge was not disproportionate to the purposes and principles set forth to Ohio

sentencing standards. (T. 11.) Counts VIII and Counts IX were ordered to be served
Ashland County, Case No. 11-COA-027                                                 4


concurrently to Counts I, III, and VI. In summary, Pearce was sentenced to serve 36

months in prison.

      {¶7} At the conclusion of the hearing, the trial court notified Pearce he had a

right to appeal his sentence because the aggregate sentence exceeded the maximum

prison term allowed under a fourth degree felony. It is based on this Pearce now

appeals.

                             ASSIGNMENT OF ERROR

      {¶8} Pearce raises one assignment of error:

      {¶9}   “I. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

18-MONTH SENTENCES FOR TWO FOURTH DEGREE FELONY CONVICTIONS

SUCH THAT THE AGGREGATE SENTENCE EXCEED THE MAXIMUM PRISON

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

OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 18 MONTHS.

                                     ANALYSIS

      {¶10} Because Pearce pled guilty to a felony, Pearce appeals his sentence

under R.C. 2953.08(C)(1), which states:

      In addition to the right to appeal a sentence granted under division (A) or

      (B) of this section, a defendant who is convicted of or pleads guilty to a

      felony may seek leave to appeal a sentence imposed upon the defendant

      on the basis that the sentencing judge has imposed consecutive

      sentences under division (C)(3) of section 2929.14 of the Revised Code

      and that the consecutive sentences exceed the maximum prison term

      allowed by division (A) of that section for the most serious offense of
Ashland County, Case No. 11-COA-027                                                         5


       which the defendant was convicted. Upon the filing of a motion under this

       division, the court of appeals may grant leave to appeal the sentence if

       the court determines that the allegation included as the basis of the

       motion is true.

Pearce is permitted under App.R. 5(D)(2) to incorporate his motion for leave to appeal

in his appellate brief by an assignment of error under R.C. 2953.08(C)(1).

       {¶11} Pearce argues the trial court erred in ordering Pearce’s sentences on

Count I and Count VI be served consecutively. Pursuant to R.C. 2929.14(A)(4), the

sentence for a fourth degree felony is six to eighteen months.

       {¶12} 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.

       {¶13} 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, 845 N.E.2d 470.

       {¶14} In the first step of our analysis, we review whether the sentence is

contrary to law. Pearce concedes in his appellate brief his sentence was not contrary
Ashland County, Case No. 11-COA-027                                                    6


to law. (Appellant’s Brief, p. 7.) Pearce argues, however, this court should consider

the impact of H.B. 86, effective September 30, 2011, which revised the felony

sentencing guidelines. We decline to adopt Pearce’s argument because Pearce was

sentenced on June 24, 2011, before the effective date of H.B. 86 and H.B. 86 is not

retroactive. State v. Fields, 5th Dist. No. CT11-0037, 2011-Ohio-6044, ¶ 10.

      {¶15} We next review the sentence pursuant to the 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 deliberation to the relevant statutory

considerations. The trial court properly considered the purposes and principles of

sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.

2929.12, along with all other relevant factors and circumstances.

      {¶16} The trial court's consecutive sentence cannot be said to be an abuse of

discretion. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983) (an abuse of discretion “implies that the court's attitude is unreasonable,

arbitrary, or unconscionable.”).      Pearce suggests consecutive sentences are

unnecessary under the facts of this case. Pearce has a lengthy criminal record for

drug and alcohol related offenses over a 19-year period, but Pearce states the court

should consider that he is a first-time felony offender.    Pearce states his criminal

behavior is due to his substance abuse problems and suggests a residential treatment

center would address his addictions better than incarceration.          The trial court

sentenced Pearce to serve a consecutive term on Pearce’s charge of trafficking in

heroin. While Pearce’s previous convictions were misdemeanors, Pearce’s crimes

involving drugs have evolved to the felony level. The trial court had the benefit of a
Ashland County, Case No. 11-COA-027                                               7


pre-sentence investigation report. At sentencing, the trial court was concerned with

Pearce’s propensity for recidivism and the need to protect the public. Over the 19-

year period, Pearce has had the opportunity to address his substance abuse issues,

but has not.

                                    CONCLUSION

      {¶17} We find Pearce’s sentences were within the statutory range and there

was no abuse of discretion by imposing consecutive sentences.         Pearce’s sole

assignment of error is overruled.   The judgment of the Ashland County Court of

Common Pleas is affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. W. SCOTT GWIN



                                      HON. WILLIAM B. HOFFMAN
[Cite as State v. Pearce, 2012-Ohio-1348.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                        Plaintiff-Appellee     :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
GREGORY A. PEARCE                              :
                                               :
                                               :   Case No. 11-COA-027
                       Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Ashland County Court of Common Pleas is affirmed. Costs assessed to appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. W. SCOTT GWIN



                                             HON. WILLIAM B. HOFFMAN
