[Cite as State v. McClanahan, 2014-Ohio-5597.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                   OTTAWA COUNTY


State of Ohio                                        Court of Appeals Nos. OT-14-024

        Appellee
                                                     Trial Court Nos. 13-CR-181
v.

Cody McClanahan                                      DECISION AND JUDGMENT

        Appellant                                    Decided: December 19, 2014

                                                 *****

        Mark Mulligan, Ottawa County Prosecuting Attorney, Joseph H. Gerber,
        Assistant Prosecuting Attorney, for appellee.

        Howard C. Whitcomb, III, for appellant.

                                                 *****
        YARBROUGH, P.J.

                                           I. Introduction

        {¶ 1} Appellant, Cody McClanahan, appeals the judgment of the Ottawa County

Court of Common Pleas, sentencing him to 11 years in prison upon acceptance of

appellant’s guilty plea to one count of robbery and one count of intimidation of a witness.

We affirm.
                         A. Facts and Procedural Background

       {¶ 2} This matter arises as a result of a robbery that occurred in Oak Harbor,

Ottawa County, Ohio, on December 5, 2013. On that date, appellant, along with three

co-defendants, forced his way into a house belonging to James Edens, Jr. At the time,

James was present with his sons Jimmy Edens, Ryan DeVincent, and Kevin Edens.

Jimmy was with appellant earlier in the evening. Appellant, along with the co-

defendants, believed that Jimmy had stolen a pack of cigarettes and $25 from them.

       {¶ 3} Upon entering the home, appellant began punching James and threw him to

the ground. After assaulting James, appellant turned his attention to Jimmy in an effort to

reacquire his cigarettes. Both James and Jimmy were subsequently treated at a local

hospital.

       {¶ 4} In addition to the physical altercation involving James and Jimmy, appellant

and his co-defendants also threatened Ryan and Kevin, who were upstairs at the time.

Appellant explained that he would harm the family if they told police of the incident. On

his way out of the home, appellant destroyed the victims’ cell phones and television.

Further, appellant stole 30 DVDs from the residence.

       {¶ 5} As a result of the December 5 incident, appellant was indicted on one count

of burglary in violation of R.C. 2911.12(B), two counts of aggravated burglary in

violation of R.C. 2911.11(A), four counts of aggravated robbery in violation of R.C.

2911.01(A)(1), four counts of intimidation of a witness in violation of R.C. 2921.04(B),

and one count of tampering with evidence in violation of R.C. 2921.12(A)(1). Appellant




2.
initially entered a plea of not guilty at his arraignment on December 13, 2013. However,

on March 17, 2014, appellant entered a plea of guilty to one count of robbery and one

count of intimidation of a witness. Pursuant to a plea agreement, the remaining charges

were dismissed. The matter was continued for sentencing and a presentence investigation

report was ordered and prepared.

       {¶ 6} On May 22, 2014, a sentencing hearing was held, and the trial court imposed

the maximum sentence on each count, consisting of eight years in prison for robbery and

three years in prison for intimidation of a witness. The court ordered the sentences

served consecutively. Further, the court ordered appellant to pay the costs of prosecution

and restitution. Appellant’s timely appeal followed.

                                B. Assignments of Error

       {¶ 7} On appeal, appellant assigns the following errors for our review:

              I. THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM

       ELEVEN (11) YEAR SENTENCE UPON DEFENDANT-APPELLANT

       IN THAT IT DID NOT COMPLY WITH THE REQUIREMENTS OF

       OHIO REVISED CODE SECTIONS 2929.11 ET SEQ AND BY DOING

       SO, VIOLATED DEFENDANT-APPELLANT’S RIGHT TO DUE

       PROCESS.




3.
              II. THE TRIAL COURT ABUSED ITS DISCRETION IN

       IMPOSING A MAXIMUM ELEVEN (11) YEAR SENTENCE UPON

       DEFENDANT-APPELLANT AS IT WAS AGAINST THE MANIFEST

       WEIGHT OF THE EVIDENCE.

                                         II. Analysis

       {¶ 8} In appellant’s first assignment of error, he argues that the trial court, in its

imposition of sentence, failed to comply with the mandates contained in R.C. 2929.11

and R.C. 2929.12. In his second assignment of error, appellant contends that the trial

court abused its discretion in imposing a sentence that “exceeds other sentences for

similar crimes in this as well as other courts.” We will address appellant’s assignments

of error simultaneously.

       {¶ 9} We note at the outset that abuse of discretion is no longer the applicable

standard of review for appeals of felony sentences. See State v. Tammerine, 6th Dist.

Lucas No. L-13-1081, 2014-Ohio-425; see also R.C. 2953.08(G)(2) (“The appellate

court’s standard for review is not whether the sentencing court abused its discretion.”).

Rather, we review felony sentences under the two-prong approach set forth in R.C.

2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,

reduce, modify, or vacate and remand a dispute sentence if it clearly and convincingly

finds either of the following:




4.
              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

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

       whichever, if any, is relevant;

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

       {¶ 10} While the abuse of discretion standard set forth in State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, is no longer controlling in our review of

felony sentences, Kalish is still useful in determining whether a sentence is clearly and

convincingly contrary to law. In that regard, the Supreme Court of Ohio held that a

sentence was not clearly and convincingly contrary to law where the trial court

considered the purposes and principles of sentencing under R.C. 2929.11 along with the

seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease

control, and imposed a sentence within the statutory range. Id. at ¶ 18.

       {¶ 11} R.C. 2929.11(A) provides, in relevant part: “The overriding purposes of

felony sentencing are to protect the public from future crime by the offender and others

and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes * * *.” In order to comply with the mandates of R.C.

2929.11, a trial court must impose a sentence that is “reasonably calculated to achieve the

two overriding purposes of felony sentencing * * * commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the victim,

and consistent with sentences imposed for similar crimes committed by similar




5.
offenders.” R.C. 2929.11(B). In carrying out its obligations to impose a sentence that is

consistent with the purposes and principles of sentencing under R.C. 2929.11, the trial

court must weigh the factors indicating that the offender’s conduct is more serious than

conduct normally constituting the offense under R.C. 2929.12(B) against those factors

indicating that the offender’s conduct is less serious than conduct normally constituting

the offense under R.C. 2929.12(C). Further, the court must weigh the factors contained

in R.C. 2929.12(D) indicating the likelihood that the offender will commit future crimes

against the factors contained in R.C. 2929.12(E) indicating that the offender is not likely

to commit future crimes.

       {¶ 12} Here, appellant acknowledges that the trial court considered R.C. 2929.11

and R.C. 2929.12 in arriving at its sentence. However, appellant maintains that the

record “is void of any information that the trial court considered all of the factors

specified in [R.C. 2929.12].” Further, he contends that his sentence is disproportionate to

other sentences received by defendants in the same court for the same crimes.

       {¶ 13} With regard to its consideration of the relevant sentencing statutes in this

case, the court indicated the following in its sentencing entry:

              The Court has considered the record, oral statements, any victim

       impact statement, and the pre-sentence report prepared, as well as the

       principle and purposes of sentencing under Ohio Revised Code Section

       2929.11. The Court has further balanced the seriousness and recidivism

       factors under Ohio Revised Code 2929.12.




6.
       {¶ 14} Moreover, the trial court noted its consideration of the relevant statutes at

the sentencing hearing, stating: “When the Court determines what sentencing should be,

we look to 2929.11 of the Ohio Revised Code.” The court then went on to recite the

language of the R.C. 2929.11 in its entirety, also indicating that it “considered the

sentencing factors set forth in 2929.12.” Ultimately, the court found that the more likely

recidivism factors outweighed the less likely factors and the more serious factors

outweighed the less serious factors. The court’s findings were embodied in its sentencing

entry and were verbally explained at the sentencing hearing.

       {¶ 15} Notwithstanding the foregoing, appellant argues that the evidence does not

support the trial court’s conclusions with respect to the weighing of factors under R.C.

2929.12. Regarding the trial court’s examination of the factors contained in R.C.

2929.12, we have previously stated: “While the phrase ‘shall consider’ is used throughout

R.C. 2929.12, the sentencing court is not obligated to give a detailed explanation of how

it algebraically applied each seriousness and recidivism factor to the offender. Indeed, no

specific recitation is required. * * * Merely stating that the court considered the statutory

factors is enough.” State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960

N.E.2d 1042, ¶ 11 (6th Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d

793 (2000). In light of the trial court’s statements at the sentencing hearing, as well as

the language contained in the sentencing entry, we conclude that the trial court complied

with its obligations under R.C. 2929.11 and 2929.12.




7.
      {¶ 16} Further, we find no merit as to appellant’s assertion that his sentence was

disproportionate to sentences received by other defendants found guilty of similar crimes

in the same court. In State v. Dahms, 6th Dist. No. S-11-028, 2012-Ohio-3181, this court

stated the following concerning consistency and proportionality requirements under R.C.

2929.11(B):

              The consistency and proportionality requirements of R.C.

      2929.11(B) require that sentencing courts impose punishment and sentence

      “consistent with the sentences imposed for similar crimes committed by

      similar offenders.” Consistency does not necessarily mean uniformity;

      rather, consistency has a goal of similar sentences for similar offenses. See

      State v. Battle, 10th Dist. No. 06AP-863, 2007-Ohio-1845. As a result,

      consistency includes a range of sentences, taking into consideration a trial

      court’s discretion to weigh the relevant statutory factors. Id. Even though

      offenses may be similar, “distinguishing factors may justify dissimilar

      sentences.” Id. at ¶ 24; State v. King, 5th Dist. No. CT06-0020, 2006-Ohio-

      6566, ¶ 23.

              In addition, consistency in sentencing does not result from a case-by-

      case comparison, but by the trial court’s proper application of the statutory

      sentencing guidelines. State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-

      6228, 903 N.E.2d 676, ¶ 10 (10th Dist.). An offender cannot simply

      present other cases in which an individual convicted of the same offense




8.
       received a lesser sentence to demonstrate that his sentence is

       disproportionate. State v. Hayes, 10th Dist. No. 08AP-233, 2009-Ohio-

       1100, ¶ 10, citing State v. Battle, 10th Dist. No. 06AP-863, 2007-Ohio-

       1845, ¶ 23. Rather, to demonstrate that a sentence is inconsistent, an

       offender must show that the trial court did not properly consider applicable

       sentencing criteria found in R.C. 2929.11 and 2929.12. State v. Holloman,

       10th Dist. No. 07AP-875, 2008-Ohio-2650, ¶ 19. Id. at ¶ 21-22.

       {¶ 17} Having already concluded that the trial court complied with its obligations

under R.C. 2929.11 and 2929.12, we find that appellant has failed to demonstrate any

inconsistency or disproportionality in his sentence. Further, while we recognize that the

citation of similar cases that contain lesser sentences is insufficient, standing alone, to

render a sentence disproportionate, we note that appellant has failed to cite any such

examples to support his contention that his sentence “exceeds other sentences for similar

crimes in this as well as other courts.”

       {¶ 18} Having concluded that the trial court complied with R.C. 2929.11 and

2929.12 in its imposition of appellant’s sentence, we find that appellant’s sentence is not

clearly and convincingly contrary to law.

       {¶ 19} Accordingly, appellant’s assignments of error are not well-taken.




9.
                                     III. Conclusion

       {¶ 20} For the foregoing reasons, the judgment of the Ottawa County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                      Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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