[Cite as State v. Owens, 2012-Ohio-2951.]


                                       COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   W. Scott Gwin, P.J.
                                              :   John W. Wise, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 11-COA-037
                                              :
                                              :
MARK W. OWENS, JR.                            :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Ashland County
                                                   Court of Common Pleas Case No.
                                                   08-CRI-004

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            June 27, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

RAMONA FRANCESCONI ROGERS                          DAVID R. STIMPERT
Ashland County Prosecutor                          10 East Main Street
Ashland, Ohio                                      Ashland, Ohio 44805

BY: PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
[Cite as State v. Owens, 2012-Ohio-2951.]


Edwards, J.

        {¶1}    Defendant-appellant, Mark Owens, Jr., appeals his sentence from the

Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    On January 11, 2008, the Ashland County Grand Jury indicted appellant

on three counts of theft in violation of R.C. 2913.02(A)(1), felonies of the fifth degree,

one count of forgery in violation of R.C. 2913.31(A)(1), a felony of the fifth degree, and

one count of petty theft in violation of R.C. 2913.02(A)(3), a misdemeanor of the first

degree. At his arraignment on January 17, 2008, appellant entered a plea of not guilty to

the charges.

        {¶3}    Thereafter, on March 31, 2008, appellant withdrew his former not guilty

plea and pleaded guilty to one count of theft and to forgery. The remaining counts were

dismissed. Pursuant to a Judgment Entry filed on May 30, 2008, appellant was ordered

to serve 180 days in jail with all but 30 days suspended. Appellant also was placed on

community control for a period of two years under specified terms and conditions.

        {¶4}    On January 4, 2010, community control violations were filed against

appellant. On February 1, 2010, appellant entered a plea of admission to one of the

violations and the trial court found that appellant was in violation of his community

control orders. Appellant was then continued on community control.

        {¶5}    Subsequently, on July 29, 2011, community control violations were again

filed against appellant. On August 11, 2011, appellant entered pleas of admission and

the trial court found that appellant was in violation of his community control. Pursuant to

a Judgment Entry filed on September 14, 2011, the trial court sentenced appellant to
Ashland County App. Case No. 11-COA-037                                                  3


ten (10) months in prison for theft and to ten (10) months in prison for forgery. The trial

court ordered that the two sentences were to be served consecutively, for an aggregate

sentence of twenty (20) months in prison.

      {¶6}   Appellant now raises the following assignments of error on appeal:

      {¶7}   “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED       CONSECUTIVE         SENTENCES           UPON    DEFENDANT/APPELLANT

PURSUANT TO THE OHIO REVISED CODE SECTION 2929.14(E)(4); SAID

CONSECUTIVE        SENTENCES        EXCEEDED        THE    MAXIMUM      PRISON      TERM

ALLOWED BY OHIO REVISED CODE SECTION 2929.14(A)(4), AND WERE

CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF SAID

COURT’S DISCRETION.

      {¶8}   “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED

CODE SECTION. 2929.13(A).”

                                                I

      {¶9}   Appellant, in his first assignment of error, argues that the trial court erred

in imposing consecutive sentences. Appellant specifically alleges that the consecutive

sentences exceeded the maximum prison term permitted by R.C. 2929.14(A)(4) and

were contrary to law and/or an abuse of discretion.

      {¶10} R.C. 2953.08(C) states as follows: “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
Ashland County App. Case No. 11-COA-037                                                  4


defendant on the basis that the sentencing judge has imposed consecutive sentences

under division (E)(3) or (4) 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 which the defendant was convicted. * * *.”

       {¶11} Rule 5 of the Ohio Rules of Appellate Procedure states in part:

       {¶12} “(D)(2) Leave to appeal consecutive sentences incorporated into appeal

as of right.

       {¶13} “When a criminal defendant has filed a notice of appeal pursuant to App.

R. 4, the defendant may elect to incorporate in defendant's initial appellate brief an

assignment of error pursuant to R.C. 2953.08(C), and this assignment of error shall be

deemed to constitute a timely motion for leave to appeal pursuant to R.C. 2953.08(C).”

       {¶14} In the case sub judice, appellant not only appealed pursuant to R.C.

2953.08(C), but also appealed as of right under App.R. 4, arguing, in his second

assignment of error, that his sentence imposed an unnecessary burden on State or

local resources. Thus, his first assignment of error is deemed a timely motion for leave

to appeal under R.C 2953.08(C) and is granted.

       {¶15} As is stated above, appellant maintains that the trial court erred in

imposing consecutive sentences because the consecutive sentence exceeded the

maximum prison term allowed by R.C. 2929.14.(A)(4).           However, this Court has

recognized that “ * * * the right to appeal a sentence under R.C. 2953.08(C) does not

mean that consecutive sentences for multiple convictions may not exceed the maximum

sentence allowed for the most serious conviction.” See State v. Beverly, 5th Dist. No. 03

CAA 02011, 2003-Ohio-6777, ¶17, quoting State v. Haines, 10th Dist. No. 98AP-195,
Ashland County App. Case No. 11-COA-037                                                      5


1998 WL 767438 (Oct. 29, 1998). “To so construe the statute would demean the

sentencing process to the point that it would permit one person to receive a maximum

sentence for committing one felony while allowing another person to receive only the

same maximum sentence for committing one hundred similar felonies. While the right to

appeal may be granted if the conditions of R.C. 2953.08(C) are met, such right to

appeal does not limit the court's ability to impose consecutive sentences.” Haines, supra

at 6.

        {¶16} Appellant also argues that his sentence is contrary to law and not

supported by the record. The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d

23, 2008–Ohio–4912, 896 N.E.2d 124 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.

        {¶17} The relevant sentencing law is now controlled by the Ohio Supreme

Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

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.” Id. at ¶ 100.

        {¶18} The record herein reflects that appellant was sentenced to a prison term of

ten months for a charge of theft, a felony of the fifth degree felony, and also to ten

months in prison on the charge of forgery, also a felony of fifth degree. The sentences
Ashland County App. Case No. 11-COA-037                                                   6


were within the statutory guidelines and parameters. 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. While appellant contends

that the trial court did not “make a rote recitation that it considered the statutory

sentencing factors” in R.C. 2929.12, we note that the failure to indicate at the

sentencing hearing the court has considered the factors in R.C. 2929.11 and 2929.12

does not automatically require reversal. State v. Reed, 10th Dist. No. 09AP–1163,

2010–Ohio–5819, ¶ 8. “When the trial court does not put on the record its consideration

of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper

consideration to those statutes.” Id., citing Kalish at ¶ 18, fn. 4. “The Code does not

specify that the sentencing judge must use specific language or make specific findings

on the record in order to evince the requisite consideration of the applicable seriousness

and recidivism factors.” State v. Arnett, 88 Ohio St.3d 208, 215, 2000–Ohio–302, 724

N.E.2d 793.

       {¶19} “Where the record adequately justifies the sentence imposed, the court

need not recite 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, 5th Dist. No. 2006-CA-41, 2006-Ohio-5823, ¶ 52

       {¶20} In the case at bar, the trial court considered the Pre-Sentence

Investigation. Based on the transcript of the sentencing hearing and the subsequent

judgment entry, this Court cannot find that the trial court acted unreasonably, arbitrarily,
Ashland County App. Case No. 11-COA-037                                                  7


or unconscionably, or that the trial court violated appellant's rights to due process under

the Ohio and United States Constitutions in sentencing appellant to consecutive

sentences of incarceration that exceed the maximum term allowed for the most serious

offense of which he was convicted. 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. The sentences were

supported by clear and convincing evidence and were not contrary to law.

      {¶21} Having found that appellant’s sentence was not contrary to law, we must

next determine whether or not the trial court abused its discretion in sentencing

appellant to consecutive sentences. An abuse of discretion means more than an error

of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

      {¶22} In the case sub judice, appellant was initially placed on community control.

On or about February 5, 2010, appellant admitted to having violated the terms and

conditions of his community control by using Vicodin that had not been prescribed for

him and was subsequently continued on community control.            Additional community

control violations were filed against appellant on July 29, 2011 alleging that appellant

had violated the terms and conditions of his community control by violating his curfew,

failing to comply with a verbal order of his probation officer not to use bath salts, using

Vicodin that was not lawfully prescribed for him, and associating with a person with a
Ashland County App. Case No. 11-COA-037                                                 8


criminal background. Appellant admitted to such violations and was found to have

violated the terms and conditions of his community control. The trial court, in sentencing

appellant, stated, in relevant part, on the record:

       {¶23} “From the Court’s viewpoint, however, I find that the Court has exhausted

the Community Control Sanctions. There is so many times that you are only going to

get so many chances and then the Court is coming to the conclusion that you are not

amenable to Community Control, that despite the efforts that the Court has made, given

you the opportunity for rehabilitation that you have failed to exercise on those

opportunities and remain a law-abiding citizen.

       {¶24} “I am, therefore, finding that you are not amenable to Community Control,

and further based on your criminal history and the extensive violations in the past, I am

finding that it’s necessary as well to protect the public, that consecutive sentences be

imposed in this matter.” Transcript of September 14, 2011 hearing at 6.

       {¶25} Based on the foregoing, we find that the trial court did not abuse its

discretion in sentencing appellant to consecutive sentences. The trial court’s decision

was not arbitrary, unconscionable or unreasonable.

       {¶26} Appellant’s first assignment of error is, therefore, overruled.

                                                  II

       {¶27} Appellant, in his second assignment of error, argues that his sentence

created an unnecessary burden on state and/or local resources in violation of R.C.

2929.13(A).

       {¶28} Appellant specifically argues that the trial court erred by not complying

with the new sentencing law, House Bill 86, which did not come into effect until
Ashland County App. Case No. 11-COA-037                                                9


September 30, 2011, shortly after the appellant was sentenced on September 14, 2011.

Appellant urges this Court to consider the purposes of the new sentencing reforms in

determining whether his sentence is an unnecessary burden on state and local

government resources. Appellant submits that under the new mandate, a Court must

use the minimum sanctions to accomplish the purposes and principles of sentencing

without imposing an unnecessary burden on state or local government resources, as set

forth in R.C. 2929.11, as amended by 2011 Am.Sub.H.B. No. 86.

       {¶29} We note that H.B. 86 is not retroactive. See State v. Fields, 5th Dist. No.

CT11-0037, 2011-Ohio-6044, ¶10.

       {¶30} In State v. Ober, 2nd Dist. No. 97CA0019, 1997 WL 624811 (Oct. 10,

1997), the Second District considered this same issue. In rejecting the argument, the

court stated as follows: “Ober is correct that the ‘sentence shall not impose an

unnecessary burden on state or local government resources.’ R.C. 2929.19(A).

According to criminal law experts, this resource principle ‘impacts on the application of

the presumptions also contained in this section and upon the exercise of discretion.’

Griffin & Katz, Ohio Felony Sentencing Law (1996–97), 62. Courts may consider

whether a criminal sanction would unduly burden resources when deciding whether a

second-degree felony offender has overcome the presumption in favor of imprisonment

because the resource principle is consistent with the overriding purposes and principles

of felony sentencing set forth in R.C.2929.11. Id.”

       {¶31} The Ober court concluded, “[a]lthough resource burdens may be a

relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate

resource conservation above the seriousness and recidivism factors. Imposing a
Ashland County App. Case No. 11-COA-037                                          10

community control sanction on Ober may have saved state and local government funds;

however, this factor alone would not usually overcome the presumption in favor of

imprisonment.” Id.

          {¶32} Several other appellate courts, including our own, considering these

issues have reached the same conclusion. See, e.g., State v. Hyland, 12th Dist. No.

CA2005–05–103, 2006–Ohio–339, ¶ 32; State v. Brooks, 10th Dist. No. 97APA–11–

1543, 1998 WL 514111 (Aug. 18, 1998); State v. Stewart, 8th Dist. No. 74691, 1999 WL

126940 (Mar. 4, 1999); State v. Fox, 3rd Dist. No. 16–2000–17, 2001 WL 218433 (Mar.

6, 2001); State v. Miller, 5th Dist. No. 04–COA–003, 2004–Ohio–4636, and State v.

Leasure, 5th Dist. No. 2011–COA–031, 2012-Ohio-318.1 We agree with the reasoning

of the Ober court and other courts considering this issue. We find that appellant’s

sentence does not impose an unnecessary burden on State resources based on

appellant’s criminal history and his previous community control violations.




1
    The appellant in Leasure pleaded guilty to a felony of the fifth degree.
Ashland County App. Case No. 11-COA-037                                         11


       {¶33} Appellant’s second assignment of error is, therefore, overruled.

       {¶34} Accordingly, the judgment of the Ashland County Court of Common Pleas

is affirmed.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/d0326
[Cite as State v. Owens, 2012-Ohio-2951.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
MARK W. OWENS, JR.                               :
                                                 :
                        Defendant-Appellant      :       CASE NO. 11-COA-037




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

judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
