[Cite as State v. McGee, 2011-Ohio-6433.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA




                              JOURNAL ENTRY AND OPINION
                                      No. 96688



                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    RICHARD McGEE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-507434

        BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.

    RELEASED AND JOURNALIZED:                        December 15, 2011
 ATTORNEY FOR APPELLANT
                                            2


Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, Ohio 44123


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Jessie W. Canonico
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



EILEEN A. GALLAGHER, J.:

       {¶ 1} Richard McGee appeals from his resentencing in the Cuyahoga County

Common Pleas Court. McGee argues the trial court abused its discretion in sentencing

him to a seven-year term of imprisonment consecutive to the term imposed in case

CR-507845 and in imposing the maximum sentence for both counts of aggravated

robbery. Finding no merit to this appeal, we affirm the decision of the trial court.

       {¶ 2} In 2008, a jury convicted McGee of two counts of aggravated robbery and

two counts of kidnapping. The trial court subsequently sentenced McGee to seven years

on both aggravated robbery charges and five years on each of the kidnapping charges for

a total prison term of twelve years. The court ordered those sentences to be served
                                           3

consecutive to an eight-year prison sentence imposed in Case CR-507845, in which a jury

found McGee guilty of aggravated robbery, carrying a concealed weapon, and improper

handling of a firearm.

      {¶ 3} McGee appealed both convictions to this Court in separate case numbers,

App. Nos. 92019 and 92026. McGee’s appeal relating to lower court case number

CR-507845 was dismissed for lack of a final appealable order. See State v. McGee,

Cuyahoga App. No. 92026, 2010-Ohio-2082. In McGee’s direct appeal of the case now

at bar, this court affirmed McGee’s convictions and the imposition of a sentence

consecutive with case CR-507845 but remanded the matter for resentencing after finding

that the convictions in this case were for allied offenses and, therefore, they must merge.

See State v. McGee, Cuyahoga App. No. 92019, 2010-Ohio-2081.

      {¶ 4} On remand, the trial court conducted a resentencing hearing. The court, in

conjunction with this court’s opinion, merged the charges of kidnapping with those of

aggravated robbery for purposes of sentencing. After hearing from McGee and others

who spoke on his behalf, the trial court sentenced McGee to seven years on each of the

charges of aggravated robbery, to run concurrent with each other but consecutive to the

prison sentence in CR-507845.

      {¶ 5} McGee appeals, raising the two assignments of error contained in the

appendix to this opinion.

      {¶ 6} In his first assignment of error, McGee argue that the trial court erred when
                                            4

it ordered his seven-year prison sentence be served consecutive with the eight-year prison

sentence ordered in case CR-507845. We find no merit to this argument.

       {¶ 7} We review felony sentences using the framework announced in State v.

Kalish, 120 Ohio St.2d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion,

the Kalish court declared that in applying State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a

two-step approach.” Kalish at ¶4.

       {¶ 8} Appellate courts must first “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.”         Id. at 26.   See, also, R.C.

2953.08(G). If this first prong is satisfied, then we review the trial court’s decision under

an abuse of discretion standard. Id. at ¶4 and ¶19.

       {¶ 9} In the first step of our analysis, we review whether McGee’s sentence is

contrary to law as required by R.C. 2953.08(G). As the Kalish court noted, post-Foster

“trial courts have full discretion to impose a prison sentence within the statutory range

and are no longer required to make findings and give reasons for imposing maximum,

consecutive, or more than the minimum sentence.” Id. at 11, quoting Foster at paragraph

seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,

paragraph three of the syllabus. The Kalish court held that although Foster eliminated

mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at 13.
                                            5

Therefore, the trial court must still consider those statutes when imposing a sentence.

Id., citing Mathis at 38.

       {¶ 10} R.C. 2929.11(A) provides that:

       “[A] court that sentences an offender for a felony shall be guided by the overriding
       purposes of felony sentencing [:] * * * to protect the public from future crime by
       the offender and others and to punish the offender. To achieve those purposes, the
       sentencing court shall consider the need for incapacitating the offender, deterring
       the offender and others from future crime, rehabilitating the offender, and making
       restitution to the victim of the offense, the public, or both.”

       {¶ 11} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses.

       {¶ 12} R.C. 2929.11 and 2929.12 are not fact-finding statutes.         Instead, they

“serve as an overarching guide for trial judges to consider in fashioning an appropriate

sentence.” Kalish at 17. Thus, “[i]n considering these statutes in light of Foster, the

trial court has full discretion to determine whether the sentence satisfies the overriding

purposes of Ohio’s sentencing structure.” Id.

       {¶ 13} In the instant case, McGee does not argue that the court failed to consider

R.C. 2929.11 and 2929.12 when imposing his sentence. Instead, he argues that because

he has a relatively minor criminal history and that he played no part in the violent aspects

of the crimes for which he was convicted, a lesser sentence was proper. While McGee is

free to put forth this argument, it does not demonstrate that his sentence violated Ohio’s

sentencing statutes.
                                            6

       {¶ 14} The trial court’s journal entry reflects that it considered all factors as

required by law and found that prison was consistent with R.C. 2929.11. Further, the

imposed prison terms on the two felonies to which McGee pleaded guilty were within the

statutory range. Since McGee was sentenced within the statutory range and has failed to

demonstrate how his sentence violated Ohio’s sentencing statutes, we do not find that it

was contrary to law.

       {¶ 15} We next consider whether the trial court abused its discretion. Kalish at ¶4

and ¶19. An “abuse of discretion” is more than an error of law or judgment; it implies

that the court’s attitude is unreasonable, arbitrary or unconscionable.        Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶ 16} We find nothing in the record to suggest that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. As outlined above, a review of the record

indicates that the trial court also expressly stated that it had considered all factors of the

law and found that prison was consistent with the purposes and principles of R.C.

2929.11.

       {¶ 17} Accordingly, McGee’s first assignment of error is overruled.

       {¶ 18} In his second assignment of error, McGee argues the trial court erred when

it sentenced him to the maximum sentences for the underlying case. This assignment of

error lacks merit.

       {¶ 19} Pursuant to R.C. 2911.01, aggravated robbery is a first-degree felony, which
                                           7

is punishable by annualized terms of imprisonment ranging from three to ten years. See

R.C. 2929.14(A)(1). Here, the trial court sentenced McGee to two, seven-year terms of

imprisonment, which is not the maximum penalty authorized by law.

      {¶ 20} Thus, McGee’s argument that the trial court erred by sentencing him to the

maximum term of imprisonment is without merit.

      {¶ 21} The judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated. Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR


                                       Appendix

Assignments of Error:

      “I. The trial court erred to the prejudice of appellant by sentencing him to a
                                 8

total of fifteen years imprisonment amounting to consecutive terms of seven
and eight years respectively, in that the consecutive terms are excessive for
the purposes set forth in Ohio Revised Code Section 2929.11(A) and (B), and
are not necessary to protect the public.”

“II. The trial court abused its discretion to the prejudice of appellant by
imposing maximum sentences when consideration of the factors in 2929.12
tended to favor a lesser sentence.”
