[Cite as State v. Howell, 2015-Ohio-3428.]
                            STATE OF OHIO, BELMONT COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )    CASE NO. 14 BE 30
                                              )
        PLAINTIFF-APPELLEE,                   )
                                              )
VS.                                           )    OPINION
                                              )
KERRY ALAN HOWELL,                            )
                                              )
        DEFENDANT-APPELLANT.                  )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Belmont County, Ohio
                                                   Case No. 14CR008

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty Helen Yonak
                                                   Assistant Prosecutor
                                                   Belmont County Court Annex
                                                   St. Clairsville, Ohio 43950


For Defendant-Appellant:                           Atty. Brent A. Clyburn
                                                   The Law Office of
                                                   Brent A. Clyburn
                                                   3521 Fairmont Pike Rd.
                                                   Suite B
                                                   Wheeling, West Virginia 26003


JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: August 20, 2015
[Cite as State v. Howell, 2015-Ohio-3428.]
ROBB, J.


        {¶1}     Defendant-Appellant Kerry Alan Howell appeals from his conviction and
sentence entered by Belmont County Common Pleas Court for aggravated assault, a
violation of R.C. 2903.11(A)(2), a fourth-degree felony. The issue in this appeal is
whether the trial court erred in imposing the maximum term allowed by law. For the
reasons expressed below, the sentence is supported by the record. The conviction
and sentence are hereby affirmed.
                         Statement of the Facts and Case
        {¶2}     On December 21, 2013, an altercation occurred between Appellant,
Jade Kyer, and Robert Stokes at 64847 Warnock-St. Clairsville Road in Belmont
County, Ohio, the home of Shirley Stokes, Robert Stokes’ mother.               When an
argument ensued between Jade Kyer and Appellant, Appellant was asked to leave
the house. Appellant went to his truck and retrieved a baseball bat. He hit Robert
Stokes with the bat. Robert Stokes wrestled Appellant to the ground and disarmed
Appellant of the baseball bat. As a result of the altercation, Robert Stokes’ arm was
broken.
        {¶3}     Appellant was indicted on one count of aggravated burglary, in violation
of R.C. 2911.11(A)(1), a first-degree felony; and one count of felonious assault, a
violation of R.C. 2903.11(A)(2), a second-degree felony. 2/5/14 Indictment.
        {¶4}     Appellant entered a not guilty plea and was released on bond. Bond
was later revoked when Appellant violated the bond terms. 5/29/14 J.E.
        {¶5}     In June 2014, the state and Appellant reached a plea agreement. The
state agreed to dismiss aggravated burglary and amend felonious assault to
aggravated assault.          6/12/14 Plea.    The state also agreed to remain silent at
sentencing. 6/12/14 Plea.
        {¶6}     On July 2, 2014, the trial court accepted Appellant’s guilty plea to
aggravated assault, a violation of R.C. 2903.12(A)(2), a fourth-degree felony. A week
later Appellant received an 18 month sentence for the aggravated assault conviction,
the maximum allowed by law. 7/8/14 Sentencing J.E.
        {¶7}     Appellant timely appealed his sentence.
                                  Assignment of Error
                                                                                   -2-

       “The trial court erred in sentencing the Defendant-Appellant, Kerry Allen
Howell, to a maximum prison term of eighteen (18) months following his conviction
for one (1) count of ‘aggravate assault,’ a felony of the fourth degree.”
       {¶8}   This court is currently split as to the standard of review to apply in
felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014–Ohio–919
(Vukovich, J., Donofrio, J., majority with DeGenaro, J., concurring in judgment only
with concurring in judgment only opinion); State v. Wellington, 7th Dist. No. 14 MA
115, 2015–Ohio–1359 (Robb, J., DeGenaro, J., majority with Donofrio, J. concurring
in judgment only with concurring in judgment only opinion).
       {¶9}   One approach is to apply the test set forth in the plurality opinion in
State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, ¶ 26. Hill at ¶
7-20. Under the Kalish test, we must first examine the sentence to determine if it is
“clearly and convincingly contrary to law.” Kalish at ¶ 26 (O'Connor, J., plurality
opinion). Next, if the sentence is clearly and convincingly not contrary to law, the
appellate court reviews the sentence to determine if the trial court abused its
discretion in selecting a sentence within the permissible statutory range. Id. at ¶ 17
(O'Connor, J., plurality opinion).
       {¶10} The other approach is to strictly follow R.C. 2953.08(G), which provides
that appellate courts are only to review felony sentences to determine if they are
clearly and convincingly contrary to law. R.C. 2953.08(G) does not contain an abuse
of discretion component. Wellington at ¶ 9-14.
       {¶11} The issue of which felony sentencing standard of review is applicable is
currently before the Ohio Supreme Court. State v. Marcum, 141 Ohio St.3d 1453,
2015–Ohio–239, 23 N.E.3d 1453. The certified question the Court has accepted is,
“[D]oes the test outlined by the [c]ourt in State v. Kalish apply in reviewing felony
sentences after the passage of R.C. 2953.08(G)?” Id.
       {¶12} Regardless of what standard is employed, the result in this case is the
same; the sentence is affirmed.
       {¶13} Prior to pronouncement of the sentence, the trial court must consider
R.C. 2929.11, the purposes and principles of sentencing, and R.C. 2929.12, the
recidivism and seriousness factors.
                                                                                    -3-

      {¶14} Although the record indicates that the trial court considered the factors
in R.C. 2929.11 and R.C. 2929.12, Appellant contends the court focused on conduct
that suggested the crime was more serious than normal and the court did not
adequately consider that the victims did not want Appellant confined to prison.
Appellant also asserts the trial court did not consider Appellant’s remorse or the past
couple of years in which he led a law abiding life. Appellant’s argument focuses on
the court’s statement that 18 months was the longest prison term permitted by law to
impose, and if it could have imposed a longer term, it would.
      {¶15} These arguments are not persuasive. The trial court indicated that it
considered both R.C. 2929.11 and R.C. 2929.12. In the judgment entry the trial court
stated:

      The Court has considered the record, oral statements, the Belmont
      County Criminal incident report, the pre-sentence investigation report,
      record of proceedings, the oral statements at the sentencing hearing,
      NCIC and criminal history reports, and the purposes and principles of
      sentencing under R.C. §2929.11, the seriousness and recidivism
      factors relevant to the offense and offender, pursuant to R.C. §2929.12,
      and the need for deterrence, incapacitation, rehabilitation and
      restitution.

7/8/14 J.E.
      {¶16} Similar statements were made at the sentencing hearing. 7/7/14 Tr. 3.
      {¶17} Admittedly, the trial court did state at the sentencing hearing if it was
permitted to give Appellant a lengthier sentence, then it would.       7/7/14 Tr. 10.
However, in doing so the trial court explained why this particular conviction is worse
than others:

               As part of his sentence, in addition to the time in prison, upon
      completion of the prison term – and let me add this: 18 months is the
      maximum I can give.        Do you understand that, folks?      That’s the
      maximum. I got to tell you something, with someone beaten to the
      point with a bat that you broke their arm, and with this kind of record,
      the defendant would have received more than 18 months in prison. This
                                                                                      -4-

       is the maximum I can do, because I would go higher if I could. As I see
       it, I can’t.

7/7/14 Tr. 10.
       {¶18} This statement indicates the trial court is considering the seriousness of
the acts that resulted in conviction and why those facts are worse than facts in other
cases which lead to conviction of the same offense in those other cases. Statements
made by the trial court also indicate it considered other R.C. 2929.12 factors in
determining the appropriate sentence.
       {¶19} The trial court indicated it reviewed the file and all correspondence sent
to it. 7/7/14 Tr. 3. This statement indicates the trial court considered the letters sent
by the victims and a prior employer of Appellant.
       {¶20} Two of the victims, Jade Kyer and Robert Stokes, wrote letters to the
court indicating their desire that Appellant not receive jail time. These statements
could be considered a factor that would make the offense less serious under R.C.
2929.12(C).
       {¶21} A third victim to the crime, Shirley Stokes, indicated in a letter to the
court that she thinks prison time is warranted. In her letter she stated that she asked
Appellant to leave her property but he would not and she had to call 911. She stated
Appellant broke her son’s arm with a bat; the medical bills resulting from this attack
are being paid by her. She also explained that she no longer feels safe in her own
home. Her statements show she is suffering economical and psychological harm as
a result of the crime, which makes the offense more serious pursuant to R.C.
2929.12(B)(2).
       {¶22} Appellant’s prior employer also wrote a letter. He stated if Appellant did
not get prison time then Appellant would have a job at his business in a different
county. This could be an indication recidivism is less likely because Appellant would
be removed from the situation and, therefore, the circumstances giving rise to the
situation would not likely reoccur. R.C. 2929.12(E)(4).
       {¶23} The trial court also considered statements made by Appellant. 7/7/14
Tr. 8. Appellant’s statements made during the sentencing hearing indicate remorse.
                                                                                          -5-

7/7/14 Tr. 7-8. Remorse is an indication that the recidivism is less likely under R.C.
2929.12(E)(5).
          {¶24} The trial court considered Appellant’s criminal history, which is
permissible under R.C. 2929.12(D) and (E) to determine if recidivism is less or more
likely.    In fact, Appellant’s criminal history played a large role in the trial court’s
determination of the appropriate sentence:

                 This Court has thoroughly reviewed the file. I have thoroughly
          reviewed the applicable code sections as indicated, Revised Code
          2929.11; 2929.12. I reviewed the fact that one of the [charges] was
          dismissed. I’ve reviewed all of the correspondence I have gotten; I
          have listened to the prosecutor; I’ve listened to the witness who
          testified, a former employer, and I give him the highest respect in the
          world for being here. I’ve listened to the defendant.
                 Now, it’s time to listen to me. 1980, assault with intent to rape;
          1981, DUI, obstruction; ’81, battery; ’82, operating a motor vehicle
          under the influence; ’83, obstructing; ’83, burglary; ’89, assault; ’91,
          possession of firearms by a convicted felon; ’92, persistent disorderly
          conduct, menacing; ’93, drug abuse; ’93, driving under suspension; ’94,
          disorderly conduct; ’96, domestic violence. 1996, a threat to bomb a
          building was dismissed.      In ’96, assault and battery.      In ’96, felony
          unlawful wounding. In ’99, felony malicious wounding. 2002, domestic
          violence. No[w] we’ve got aggravated assault where a victim actually
          had his * * * [a]rm broken with a baseball bat. * * * That would be bad
          enough without all of this. Then while he is on probation – or pretrial
          supervision for this crime, he gets busted for DUI.
                 I don’t know where I got options in this case, to be honest with
          you. It’s a fourth degree felony, with all of that which I’ve just laid out.

7/7/14 Tr. 8-9.
          {¶25} Considering all of the above, we fail to find that the trial court erred in
imposing an 18 month sentence for the aggravated assault conviction. The sole
assignment of error is meritless. The conviction and sentence are hereby affirmed.
                                                       -6-




Donofrio, P.J., concurs.

DeGenaro, J. concurs.

                           APPROVED:

                           _____________________________
                           CAROL ANN ROBB, JUDGE
