[Cite as State v. Smith, 2012-Ohio-338.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO

        Plaintiff-Appellee

-vs-

GRAYSON E. SMITH

        Defendant-Appellant

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

Case No. 11-COA-030

OPINION

CHARACTER OF PROCEEDING:                       Appeal from the Ashland County Common
                                               Pleas Court, Case No. 11-CRI-031

JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         January 27, 2012

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

RAMONA FRANCESCONI ROGERS                      DAVID R. STIMPERT
Ashland County Prosecutor                      David R. Stimpert, Attorney at Law, LLC
110 Cottage Street                             10 East Main Street
Ashland, Ohio 44805                            Ashland, Ohio 44805

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


       (¶1)   Defendant-appellant Grayson E. Smith 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 May 2, 2011, Appellant entered a negotiated plea in the Ashland

County Court of Common Pleas to one count of burglary, in violation of R.C.

2911.12(A)(3), a felony of the third degree; one count of breaking and entering, in

violation of R.C. 2911.13(A), a felony of the fifth degree; and one count of theft, in

violation of R.C. 2913.02(A)(1), a felony of the fifth degree.

       (¶3)   The trial court accepted Appellant’s plea, and further found Appellant

guilty of the charges. The trial court scheduled a sentencing hearing for July 11, 2011.

       (¶4)   Via Sentencing Entry of, July 13, 2011, the trial court sentenced Appellant.

On Count I, burglary, the trial court sentenced Appellant to three years supervision with

the Department of Rehabilitation and Corrections, plus $1000 fine; as to Count II,

breaking and entering, the trial court imposed six months supervision with the

Department of Rehabilitation and Corrections, to be served consecutive to the sentence

on the first count, plus a $500 fine; and on Count III, theft, six months supervision to be

served consecutive to the other counts, plus a $500 fine, and court costs.

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

       (¶6)   “THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED       CONSECUTIVE          SENTENCES         UPON        DEFENDANT/APPELLANT

PURSUANT TO OHIO REVISED CODE SECTION 2929.14(E); SAID CONSECUTIVE
SENTENCES WERE CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR

AN ABUSE OF THE TRIAL COURT’S DISCRETION.”

       (¶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 three years

supervision on the third degree felony burglary charge, six months supervision on the

fifth degree felony breaking and entering charge, and six months supervision on the fifth

degree felony theft charge.        Accordingly, the sentences are within the statutory

guidelines and parameters for felony sentencing.

       (¶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) At the sentencing hearing, the trial court stated on the record:

       (¶12) “The Court has considered the statutory factors set forth in Section

2929.12 of the Revised Code, as well as the factors set forth in 2929.13 of the Revised

Code as it relates to F-4 and F-5 offenses, and after weighing the seriousness and

recidivism factors, I am finding that prison is consistent with the purposes and principles

of the Sentencing Statutes. I am further finding that you are not amenable to available

control sanctions. And I want to note that the charges arising out of the Elyria Municipal

Court are almost a carbon copy of the charges that you are now facing in this Court. So

it’s obvious that a Community Control Sanction as issued in Elyria did not refrain you

from conducting yourself in this situation, in the same manner in which you previously

conducted yourself.

       (¶13) “And you were still on probation at that time and I note in the PSI, it points

out that, in fact, you were not complying with the terms of your probation. In fact it

states that the offender was on supervision out of Elyria Municipal Court at the time of

the instant offense, and he never responded or complied with the probation terms.

       (¶14) “The Court makes a further finding that apparently since you decided to

continue to engage in this activity, that consecutive terms are appropriate and are

necessary to protect the public to stop this type of activity, and I am finding that you

have the future ability to be employed and pay financial sanctions in this matter.”

       (¶15) Tr. at 6-7.

       (¶16) Having determined 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.

       (¶17) 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.

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

imposing consecutive sentences. Appellant’s sole assignment of error is overruled

       (¶19) Appellant's sentence entered by 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
                                          :
GRAYSON E. SMITH                          :
                                          :
       Defendant-Appellant                :        Case No. 11-COA-030


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

entered by 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
