[Cite as State v. McPherson, 2011-Ohio-3098.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. Julie A. Edwards, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10 CAA 11 0084
SHAWN L. MCPHERSON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 10 CR I 06 0332


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         June 23, 2011



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

BRENDAN M. INSCHO                               SCOTT CULBERT
ASSISTANT PROSECUTOR                            Post Office Box 265
140 North Sandusky Street                       Delaware, Ohio 43015
Sandusky, Ohio 43015
Delaware County, Case No. 10 CAA 11 0084                                             2

Wise, J.

      {¶1}   Appellant Shawn L. McPherson appeals from his felony sentencing for

theft in the Delaware County Court of Common Pleas. The relevant facts leading to this

appeal are as follows.

      {¶2}   On August 31, 2010, appellant pled guilty to four counts of theft, R.C.

2913.02(A)(1), in the Delaware County Court of Common Pleas. Two counts were

felonies of the fifth degree, while the other two were first-degree misdemeanors. The

incidents leading to these charges were connected to several store thefts of college

textbooks which appellant later purportedly sold for cash.

      {¶3}   On October 22, 2010, following the preparation of a presentence

investigation, appellant was sentenced, inter alia, to twelve months in prison for each

fifth-degree felony, to be served consecutively, and six months on each misdemeanor,

to be served concurrently, for a total prison term of twenty-four months.

      {¶4}   On November 8, 2010, appellant filed a notice of appeal. He herein raises

the following two Assignments of Error:

      {¶5}   “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE

MAXIMUM TERM OF TWELVE MONTHS FOR FELONY THEFT.

      {¶6}   “II.   THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES.”
Delaware County, Case No. 10 CAA 11 0084                                                 3


                                           I., II.

      {¶7}    In his First and Second Assignments of Error, appellant contends the trial

court erred in sentencing him to maximum and consecutive prison terms.1

      {¶8}    As an initial matter, we note the State has responded in part that appellant

waived his right to appeal by entering into a plea agreement with the prosecutor.

      {¶9}    “It is well-established that a sentence that is agreed upon as part of a

negotiated plea, and that does not exceed the statutory maximum sentence applicable

to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D).” State v.

Yeager, Carroll App.No. 03CA786, 2004-Ohio-3640, ¶ 21 (additional citations omitted).

However, in the case sub judice, the record indicates that the plea agreement did not

include a recommended sentence; instead, the parties agreed that the case would be

referred for a presentence investigation. At the sentencing hearing, the State asked “for

the full three years ***.” Tr. at 5. Defense counsel did not explicitly acquiesce to such a

term. See Tr. at 8. In these circumstances, we find appellant has not waived his right to

challenge his sentence upon direct appeal.

      {¶10} Proceeding to the merits, we note the Ohio Supreme Court's Foster

decision [109 Ohio St.3d 1, 2006-Ohio-856] holds that judicial fact finding is not required

before a court imposes non-minimum, maximum or consecutive prison terms. See, e.g.,

State v. Williams, Muskingum App. No. CT2009-0006, 2009-Ohio-5296, ¶ 19, citing

State v. Hanning, Licking App.No. 2007CA00004, 2007-Ohio-5547, ¶ 9. Subsequent to

Foster, in a plurality opinion, the Ohio Supreme Court established a two-step procedure

for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

1
  Appellant did not attach a copy of the judgment entry under appeal to his brief. See
Loc.App.R. 9(B).
Delaware County, Case No. 10 CAA 11 0084                                                  4


896 N.E.2d 124. 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.

       {¶11} Furthermore, in State v. Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768, 2010–

Ohio–6320, the Ohio Supreme Court recently held, at paragraph two of the syllabus,

that the United States Supreme Court's decision in Oregon v. Ice2 did not revive Ohio's

former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A),

which were held unconstitutional in Foster.

       {¶12} In the case sub judice, the trial court stated in its entry that it had

considered the factual background, the oral statements of the parties, and the

presentence investigation. See Sentencing Entry, October 27, 2010, at 2.

       {¶13} The court further considered the negotiations conducted in the case,

factors laid out in the pre-sentencing report, arguments of counsel, a letter written to the

court by appellant’s “significant other”, and a statement by appellant. The court also

specifically referenced the purposes of sentencing set forth in 2929.11 and the

seriousness and recidivism factors found in 2929.22 and 2929.12. Furthermore, the

court took into account appellant’s prior criminal convictions and failure to respond to

the previous criminal sanctions imposed on those convictions. For example, appellant

had attempted a textbook theft just three days following his last release from prison. On

the day of the attempt, appellant was arrested on a traffic warrant and then released



2
    555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517.
Delaware County, Case No. 10 CAA 11 0084                                              5


over the weekend. That next Monday, appellant was arrested again for a theft from a

university book store in Richmond, Indiana. See Tr. at 6-7.

      {¶14} Based on our review of the record, and pursuant to Foster and Kalish, we

do not find the trial court acted clearly and convincingly contrary to law or abused its

discretion in rendering maximum and consecutive sentences under the facts and

circumstances of this case.

      {¶15} Appellant's First and Second Assignments of Error are therefore

overruled.

      {¶16} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Delaware County, Ohio, is hereby affirmed.


By: Wise, P. J.

Edwards, J., and

Delaney, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
JWW/d 0602
Delaware County, Case No. 10 CAA 11 0084                                       6


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
SHAWN L. MCPHERSON                        :
                                          :
       Defendant-Appellant                :         Case No. 10 CAA 11 0084




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

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

       Costs assessed to appellant.




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                                                             JUDGES
