[Cite as State v. Gooding, 2013-Ohio-5148.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 13CA006
MATTHEW L. GOODING                            :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Holmes County
                                                  Court of Common Pleas, Case
                                                  No.12CR151

JUDGMENT:                                         Affirmed in part; reversed in part and
                                                  Remanded



DATE OF JUDGMENT ENTRY:                           November 20, 2013



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

STEPHEN KNOWLING                                  THOMAS WHITE
Prosecuting Attorney                              ALYSSE GILES
164 E. Jackson Street                             209 N. Washington Street
Millersburg, OH 44654                             Millersburg, OH 44654
[Cite as State v. Gooding, 2013-Ohio-5148.]


Gwin, P.J.

        {¶1}     On January 31, 2013, appellant, Matthew L. Gooding [“Gooding”] entered

a negotiated guilty plea to Illegal Assembly or Possession of Chemicals for the

Manufacture of Drugs (Methamphetamine), a felony of the third degree, in violation of

Ohio Revised Code Section 2925.041(A). In exchange for this plea, the state dismissed

the firearm specification contained in Count I of the Indictment. (Sent. T., March 13,

2013 at 3). The Trial Court imposed a maximum sentence of thirty-six months.

        {¶2}     It is from this conviction and sentence that Gooding has appealed, raising

two assignments of error,

        {¶3}     “I. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO

THE MAXIMUM TERM OF THIRTY-SIX MONTHS FOR A VIOLATION OF OHIO

REVISED CODE SECTION 2925.041(A).

        {¶4}     “II. THE TRIAL COURT ERRED BY GIVING DEFENDANT ONLY 33

DAYS OF CREDIT TOWARD HIS SENTENCE, WHEN HE SHOULD HAVE RECEIVED

71.”

                                                  I.

        {¶5}     Gooding claims the trial court erred in sentencing him to the maximum

prison term.

        {¶6}     R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2)

states as follows:

           The appellate court may increase, reduce, or otherwise modify a

        sentence that is appealed under this section or may vacate the sentence

        and remand the matter to the sentencing court for resentencing. The
Holmes County, Case No. 13CA006                                                        3


      appellate court's standard for review is not whether the sentencing court

      abused its discretion. The appellate court may take any action authorized

      by this division if it clearly and convincingly finds either of the following:

         (a) That the record does not support the sentencing court's findings

      under division (B) or (D) of section 2929.13, division (E)(4) of section

      2929.14, or division (H) of section 2929.20 of the Revised Code,

      whichever, if any, is relevant;

         (b) That the sentence is otherwise contrary to law.

      {¶7}   Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph

three of the syllabus. The Eighth District recently stated in State v. Venes, 8th Dist.

Cuyahoga No. 98682, 2013–Ohio–1891,

         It is important to understand that the “clear and convincing” standard

      applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.

      2953.08(G)(2) makes it clear that “(t)he appellate court's standard for

      review is not whether the sentencing court abused its discretion.” As a

      practical consideration, this means that appellate courts are prohibited

      from substituting their judgment for that of the trial judge.

         It is also important to understand that the clear and convincing standard

      used by R.C. 2953.08(G)(2) is written in the negative. It does not say that

      the trial judge must have clear and convincing evidence to support its

      findings. Instead, it is the court of appeals that must clearly and
Holmes County, Case No. 13CA006                                                              4


       convincingly find that the record does not support the court's findings. In

       other words, the restriction is on the appellate court, not the trial judge.

       This is an extremely deferential standard of review.

Venes, supra, at ¶ 20–21. Accord, State v. Lee, 10th Dist. Franklin No. CA2012-09-182,

2013-Ohio-3404, ¶9; State v. Money, 12th Dist. Clermont No. CA2013-02-016, 2013-

Ohio-4535, ¶8. We note that the Venes decision’s standard of review is limited to the

imposition of consecutive sentences. Venes, supra, at ¶10.

       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 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.

       {¶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,¶¶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.

       {¶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.
Holmes County, Case No. 13CA006                                                          5

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at

¶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.

             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.

      {¶10} 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.

      {¶11} After reviewing the record, we find the trial court's sentence is not clearly

and convincingly contrary to law. The trial court very clearly stated that it had

considered the purposes and principles of sentencing according to R.C. 2929.11 and
Holmes County, Case No. 13CA006                                                          6


balanced the seriousness and recidivism factors within R.C. 2929.12. The trial court

noted that Gooding’s co-defendant was also given a prison sentence. (Sent. T., March

13, 2013 at 3). The court found Gooding’s actions,

         I told your codefendant the same thing this is one of the most

      despicable acts I have ever seen. You are in a tent and I don't know how

      many yards you are off the trail, where kids ride their bicycles up and

      down the trail every single day. And I told your fiancé or girlfriend at the

      sentencing that lots of times on the weekends I try run on the trail almost

      every day, but on the weekends I will run on the trail, for something to do I

      count people that go by. When I do a five-mile run sometimes I see 50 to

      60 people and on a summer day more and a lot of them are kids. You are

      cooking methamphetamine in a tent off of the trail where kids go by and it

      is inexcusable, it's truly one of the worst offenses I've had [sic.] this court.

      The only one I can think of worse, there was an individual making meth in

      a house where the child was through the fumes she tested positive for

      meth even though having not consumed them. I don't know how the

      chemicals work once they get in the atmosphere but I know how volatile

      the meth is, my understanding is at the time of the offense you are running

      an active cook, which means you are actively making meth amphetamine

      when they approached you. There was a weapon although you said, and I

      don't remember seeing it in the presentence, that it was unloaded and that

      maybe it was unloaded but there still a weapon in the tent. I understand

      maybe it was there for your protection, maybe your protection was
Holmes County, Case No. 13CA006                                                      7


       because you are making meth and you didn't want people to steal the

       meth from you, who knows? You had a job for four years you worked for

       the Cline and you're not working, you're not supporting your kids, and you

       are living in a tent and lost custody of your three children. It's, it's

       unfathomable.

(Sent. T., March 13, 2013 at 4). The trial court further noted,

         The court has considered all matters of record including testimony,

       giving [sic.] the statements, presentence investigation, and prior to

       passing sentence the court is to consider all relevant constitutional,

       statutory and procedural issues. A sentence proposed for a felony shall be

       reasonably calculated to achieve the two overriding purposes of felony

       sentencing with and not demeaning to the serious of the offenders

       conduct and its impact on the victim and consistent with the sentence

       imposed for a similar crimes committed by similar offenders shall not

       actually burden local or state government resources and shall not

       [inaudible] be based on inadmissible purposes. The very important phrase

       in that sentence is similar crimes similar offenders, what this court has,

       this court has never given probation anyone involved with meth, ever and

       it never will. It is a horrendous drug. In imposing a sentence the court is

       not to consider the offenders race, ethnic background, gender or religion.

       Under the most serious offense this court finds none or less serious no

       physical harm to persons or property was expected but I honestly don't

       know what meth can do but if it explodes it sure as heck can affect
Holmes County, Case No. 13CA006                                                     8


      somebody. [Inaudible] place about that I am going to put down less

      serious. Under recidivism and of his prior adjudication or delinquency to

      your history of criminal convictions the defendant has failed to respond

      favorably in the past probation or parole. Under recidivism not likely the

      court finds none. Weighing those factors the courts finds recidivism is

      more likely. Under the felony of the third degree the court finds prison is

      consistent with the overriding purposes of and the principles of

      sentencing. Regarding financial sanctions the court finds the Defendant is

      unable to pay financial sanctions but the court finds the Defendant has the

      ability and will in the future be able to pay financial sanctions. It is

      therefore the sentence of this court one that you pay the mandatory fine of

      $5000.00 dollars payable to the Holmes County Sheriff's Department, pay

      the court costs, pay the fees and expense of court appointed counsel.

      Execution is awarded for fines, court costs, and restitution. The

      Defendants motor vehicle license is suspended for a period of five years.

      The Defendant shall serve a prison sentence of thirty-six months in the

      Lorain Correctional Institution at Grafton Ohio or so such other place as

      Department of Rehabilitation and Corrections and shall direct upon the

      one count of Illegal Assembly or Possession of Chemicals for the

      Manufacturing Drug Methamphetamine, and that is the maximum I can

      give you, and you deserve every day.

(Sent. T., March 13, 2013 at 5).
Holmes County, Case No. 13CA006                                                            9


       {¶12} A sentencing court has broad discretion to determine the relative weight to

assign the factors in R.C. 2929.12. State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d

793 (2000). Subsequent to the Ohio Supreme Court's Foster decision, “[t]he decision to

impose the maximum sentence is simply part of the trial court's overall discretion in

issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.”

State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio–1281, ¶14. Accord, State

v. Trammel, 5th Dist. Stark No. 2012CA00237, 2013-Ohio-4354, ¶35.

       {¶13} As the sentencing transcript reflects, Gooding’s counsel outlined to the

court all of the factors in Gooding’s favor that could lead to mitigation. The court properly

weighed these mitigating factors against the factors the court found to aggravate

Gooding’s conduct.

       {¶14} Accordingly, we hold the thirty-six month sentence in this matter was not

based on the consideration of improper factors and was not unreasonable, arbitrary or

unconscionable. We further hold said sentence is not contrary to law.

       {¶15} Gooding’s first assignment of error is overruled.

                                                 II.

       {¶16} In his second assignment of error, Gooding maintains he was entitled to

receive 71 days of jail-time credit for time he served in the county jail for the offense in

lieu of confinement, but the trial court only ordered 33 days of credit. The state has

responded,

          Based upon a review of the Holmes County Jail records, the

       defendant/appellant is entitled to eighty-one (81) days credit against his
Holmes County, Case No. 13CA006                                                     10


       prison sentence for time spent in the Holmes County Jail relating to the

       underlying charges

Brief of Appellee at 4.

       {¶17} Accordingly, Gooding’s second assignment of error is sustained.

       {¶18} The judgment of the Holmes County Court of Common Pleas is affirmed,

in part and reversed, in part and this matter is remanded for proceedings in accordance

with our opinion and the law.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            _________________________________
                                            HON. PATRICIA A. DELANEY



WSG:clw 1028
[Cite as State v. Gooding, 2013-Ohio-5148.]


               IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
MATTHEW L. GOODING                               :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 13CA006




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

the Holmes County Court of Common Pleas is affirmed, in part and reversed, in part

and this matter is remanded for proceedings in accordance with our opinion and the

law. Costs to be shared equally by the parties.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN


                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY
