[Cite as State v. Adams, 2014-Ohio-5132.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                     :   Hon. Sheila G. Farmer, J.
                                              :   Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :   Case No. CT2014-0022
                                              :
ROSCOE R. ADAMS                               :
                                              :
                                              :
       Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Muskingum County
                                                  Court of Common Pleas, Case No.
                                                  CR2013-0250



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           November 17, 2014




APPEARANCES:

For Plaintiff-Appellee:                           For Defendant-Appellant:

D. MICHAEL HADDOX                                 JOHN D. WEAVER
MUSKINGUM CO. PROSECUTOR                          542 S. Drexel Ave.
RON WELCH                                         Bexley, OH 43209
27 North Fifth Street
Zanesville, OH 43701
Muskingum County, Case No. CT2014-0022                                                          2

Delaney, J.

       {¶1} Appellant Roscoe R. Adams appeals from the April 2, 2014 Sentencing

Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from appellee’s statement at appellant’s

change-of-plea hearing.     On August 30, 2013 Zanesville police responded to an

address upon a report of shots fired. Upon investigation, they discovered Corey Fisher

had come to the address to sell heroin. Appellant and several co-defendants hatched a

plan to rob Fisher of his drugs. When Fisher arrived, he was robbed at gunpoint by

appellant. A shot was fired into the floor. Two shots were fired “in the direction” of

Fisher but struck a bystander.

       {¶3} Appellant and co-defendants were charged by indictment as follows:

Count I, aggravated robbery with a firearm specification [R.C. 2911.01(A)(1), a felony of

the first degree]; Count II, theft of drugs with a firearm specification [R.C. 2913.02(A)(1),

a felony of the fourth degree]; and Counts III through VI, each felonious assault with

firearm specifications [R.C. 2903.11(A)(2), felonies of the second degree].

       {¶4} On February 10, 2014, appellant came before the trial court and withdrew

his previous pleas of not guilty, entering pleas of guilty to Counts I and VI, aggravated

robbery with a firearm specification and felonious assault with a firearm specification.

Appellee agreed to dismiss the remaining counts at sentencing and appellant requested

a presentence investigation (P.S.I.).

       {¶5} On March 27, 2014, appellant filed a Sentencing Memorandum presenting

the following salient facts, among others: he has a prior conviction for a “misdemeanor
Muskingum County, Case No. CT2014-0022                                                         3


fist fight scenario;” he has a pending misdemeanor charge in another county for

violation of a protection order; the instant case involves the robbery of a drug dealer; a

co-defendant provided appellant with a firearm which he “took pains to fire [ ] into the

floor, and did not actively try to shoot the victims, but instead used the gun to scare

them away;” and appellant has had “some drug involvement.”                   Appellant has a

diagnosis of irritability, depression, anxiety, and attention deficit disorder.

       {¶6} On March 31, 2014, the parties returned for sentencing. The trial court

questioned appellant about discrepancies between his version of events and

information contained in the P.S.I., noting appellant portrayed himself as the “hero” in

the incident who attempted to keep things from spiraling out of control, but the

investigation revealed the following:

              * * * *.

              THE COURT:          Okay.   Mr. Fisher indicated that [co-defendant]

              began pacing back and forth once they were in the house. That’s

              when the room became quiet, [appellant] stood up, grabbed a gun

              behind his low back and shot once at the floor and once at the wall,

              and then pointed the gun to Mr. Fisher and Mr. Curtis. [Appellant]

              advised Mr. Fisher and Curtis to empty out their wallets. Mr. Fisher

              indicated they did some of that.

                         After the money was obtained, [appellant] told Fisher and

              Curtis to get out. They ran to the vehicle that was waiting in the

              driveway with two other persons waiting.          After getting into the

              vehicle, the victims saw the owner of the residence standing on the
Muskingum County, Case No. CT2014-0022                                                      4


             back lawn with a machete.         [Appellant] came back around the

             house and shot off a couple more rounds while Curtis and Fisher’s

             vehicle was trying to back out of the driveway.

                        They were unable to get out of the driveway because a

             school bus had stopped letting off children. Eight juveniles were on

             the bus at the time the incident took place. A witness waiting by the

             school bus stated [appellant] came from the house and fired a shot

             at the leaving vehicles—or the leaving vehicle. That’s the official

             version.

             [APPELLANT:] Allegedly.

             THE COURT: No, no, no, it’s not the alleged version. That is the

             official version. Your version is different, right?

             [APPELLANT:] Yes, sir.

             * * * *.

             T. (II), 10-11.

      {¶7} The trial court goes on to note appellant denied handling the firearm,

claiming he only took it away from a co-defendant, and “took the blame” for the incident

because an accomplice told him he could not get in trouble for robbing a drug dealer.

Appellant admitted to an extensive history of illicit drug use, including a $1,000-2,000-

per-week habit of snorting Percocet which transitioned into heroin abuse.

      {¶8} Noting the sentence was based upon the facts and circumstances of the

case coupled with appellant’s genuine lack of remorse, the trial court sentenced

appellant to an aggregate prison term of twelve years: nine years on Count I with a
Muskingum County, Case No. CT2014-0022                                                       5


mandatory consecutive three-year term on the firearm specification, concurrent with six

years on Count VI.

       {¶9} Appellant now appeals from the trial court’s April 2, 2014 judgment entry

of conviction and sentence.

       {¶10} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶11} “I. APPELLANT’S SENTENCE WAS CONTRARY TO LAW.”

       {¶12} “II.    THE   TRIAL    COURT       ABUSED     ITS   DISCRETION       WHEN

SENTENCING APPELLANT.”

                                       ANALYSIS

                                          I., II.

       {¶13} Appellant argues his sentence is contrary to law and constitutes an abuse

of discretion. We disagree.

                                    The Standard of Review

       {¶14} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. 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 the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks

sufficient data to justify the sentence, the court may well abuse its discretion by
Muskingum County, Case No. CT2014-0022                                                       6

imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.

Licking No.2006–CA–41, 2006–Ohio–5823, ¶ 52.

       {¶15} We acknowledge this district still relies upon Kalish’s two-step standard of

review.1 We recognize this approach has been followed by some districts2 and rejected

by others.3 Kalish is a plurality opinion and thus of “questionable precedential value.”

State v. Venes, 2013–Ohio–1891, 992 N.E.2d 453, ¶ 9 (8th Dist.), citing Kraly v.

Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Nevertheless, its two-step

analysis has provided appellate courts with a meaningful framework for evaluating

felony sentences, permitting us to honor the sentencing discretion of trial courts while

ensuring those sentences comply with applicable statutes. The appellate courts which

now reject the Kalish two-step standard of review hold that only R.C. 2953.08(G)(2) is

applicable and the abuse-of-discretion standard of review is no longer allowed.

       {¶16} R.C. 2953.08(G)(2) provides two grounds for an appellate court to

overturn the imposition of a sentence: (1) the sentence is “otherwise contrary to law”; or

(2) the appellate court, upon its review, clearly and convincingly finds that “the record

does not support the sentencing court’s findings * * * ”.




1
  See, e.g., State v. Nugent, 5th Dist. Guernsey No. 13 CA 40, 2014-Ohio-3848; State v.
Salim, 5th Dist. Delaware No. 14 CAA 01 0005, 2014-Ohio-3602; State v. Shuster, 5th
Dist. Morgan Nos. 13AP0001, 13AP0002, 2014-Ohio-3486, State v. Picard, 5th Dist.
Richland No. 13-CA-95, 2014-Ohio-2924.
2
  See, e.g., State v. Hill, 7th Dist. Mahoning No. 13 MA 1, 2014-Ohio-919, infra; State v.
Nguyen, 4th Dist. Athens No. 12 CA 14, 2013-Ohio-3170; State v. Clayton, 9th Dist.
Summit No. 26910, 2014-Ohio-2165.
3
  See, e.g., State v. White, 1st Dist. Hamilton No. C-130114, 2013-Ohio-4225, 997
N.E.2d 629; State v. Rodefer, 2nd Dist. Montgomery Nos. 25574, 25575, 25576, 2013-
Ohio-5759, 5 N.E.2d 1069; State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-
1891, 992 N.E.2d 453.
Muskingum County, Case No. CT2014-0022                                                       7


       {¶17} Appellant frames both his assignments of error under both the statutory

standard and the Kalish framework.

                         Appellant’s Sentence is Not Contrary to Law

       {¶18} In the instant case, appellant is a first-time felony offender and he argues

his sentence is contrary to law because it does not comply with the overriding purposes

of felony sentencing, to wit, “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 without imposing an unnecessary burden on

state or local government resources.” R.C. 2929.11(A). Appellant asserts he should

have received a minimum sentence of 6 years instead.

       {¶19} Appellant entered pleas of guilty to one count of aggravated robbery with

a firearm specification, a felony of the first degree, and one count of felonious assault

with a firearm specification, a felony of the second degree. The firearm specifications

merge for sentencing purposes and require a mandatory three-year term. Appellant’s

sentence on the aggravated robbery is nine years, concurrent with six on the felonious

assault. Nine years is neither the minimum nor the maximum sentence for a felony of

the first degree and is within the statutory range. R.C. 2929.14(A)(1). The trial court

stated the sentence is based upon the P.S.I., “many, many” letters to the court on

appellant’s behalf, and the sentencing memorandum.

       {¶20} The trial court also noted the facts and circumstances of the case, in

addition to appellant’s lack of remorse: “Mr. Adams, I find you to be a very dangerous

young man. You’re robbing people. You know why you’re there. There’s weapons
Muskingum County, Case No. CT2014-0022                                                           8

involved (sic). It’s discharged. It’s discharged outside toward a school bus that had

kids in it. Very dangerous situation.” T. 17.

       {¶21} The language of R.C. 2929.11(A) does not require a trial court to sentence

a defendant to a minimum sentence, especially under the circumstances here. We find

appellant’s sentence is not contrary to law.

                       Appellant’s Sentence is Not an Abuse of Discretion

       {¶22} Appellant argues his sentence is an abuse of discretion because his

conduct is less serious than conduct normally constituting the offense and he is not

likely to re-offend pursuant to the factors enumerated in R.C. 2929.12. We disagree.

       {¶23} R.C. 2929.12(D)(4) and R.C. 2929.12(D)(5) cite an offender’s pattern of

drug use related to an offense and genuine lack of remorse as factors indicating

likeliness to reoffend. The trial court was in the best position to determine whether

appellant was genuine in his expression of remorse; it is apparent from the record the

trial court considered appellant’s disingenuous minimizing of his role to indicate a lack of

responsibility and remorse. By his own admission, appellant is an admitted drug addict

with a costly habit who did not hesitate when his accomplice handed him a firearm.

Appellant fired that firearm once, purportedly on “accident,” yet persisted, bringing the

firearm outside and firing it in the direction of the fleeing victims, despite the presence of

a school bus and its passengers.

       {¶24} The trial court cited all of these factors in its sentencing decision. We find

the trial court engaged in the correct analysis and the record contains evidence to

support the findings made by the trial court and was not an abuse of discretion.

       {¶25} Appellant’s first and second assignments of error are overruled.
Muskingum County, Case No. CT2014-0022                                               9


                                 CONCLUSION

      {¶26} Appellant’s two assignments of error are overruled and the judgment of

the Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.
