[Cite as State v. Bennett, 2011-Ohio-3387.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95654



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 DEONTE BENNETT
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                               Criminal Appeal from the
                       Cuyahoga County Court of Common Pleas
                    Case Nos. CR-535160, CR-535402, and CR-538045

        BEFORE:               Boyle, J., Blackmon, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                           July 7, 2011
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ATTORNEYS FOR APPELLANT

Aaron T. Baker
Aaron T. Baker Co., L.P.A.
P.O. Box 824
Willoughby, Ohio 44096

William L. Summers
William L. Summers & Associates Co., L.P.A.
Landerbrook Corporate Center II
5910 Landerbrook Drive, Suite 200
Cleveland, Ohio 44124



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: John P. Colan
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

       {¶ 1} Defendant-appellant, Deonte Bennett, appeals his sentences in connection with

three separate cases, raising the following two assignments of error:

       {¶ 2} “I.      The trial court abused its discretion in sentencing appellant without

considering the overriding purpose of felony sentencing or the mandatory sentencing factors.
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       {¶ 3} “II.     The trial court abused its discretion in sentencing appellant without

articulating judicially reviewable reasons for imposition of the sentence.”

       {¶ 4} We find his arguments unpersuasive and affirm.

                                     Procedural History and Facts

       {¶ 5} In March 2010, Bennett was indicted in Case No. CR-535160 on the following

four counts for events occurring on March 8, 2010: (1) drug trafficking, in violation of R.C.

2925.03(A)(2); (2) drug possession, in violation of R.C. 2925.11(A); (3) tampering with

evidence, in violation of R.C. 2921.12(A)(1); and (4) possession of criminal tools, in violation

of R.C. 2923.24(A).      Approximately a week later, Bennett was indicted in Case No.

CR-535402 for a single count of drug possession, in violation of R.C. 2925.11(A), for his

alleged possession of crack cocaine on March 14, 2010.          Pursuant to a plea agreement,

Bennett ultimately pled guilty to an amended indictment in each case.         In the first case, Case

No. CR-535160, he pled guilty to drug possession, a felony of the third degree, and the

remaining charges were dismissed.     In the second case, Case No. CR-535402, he pled guilty

to a single count of attempted drug possession, a misdemeanor of the first degree.

       {¶ 6} In June 2010, Bennett was indicted in a third case, Case No. CR-538045, on

three counts: (1) drug trafficking, in violation of R.C. 2925.03(A)(2); (2) drug possession, in

violation of R.C. 2925.11(A); and (3) possession of criminal tools, in violation of R.C.
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2923.24(A).    In this case, Bennett ultimately pled guilty to   drug possession, a felony of the

fourth degree, and the remaining charges were dismissed.

       {¶ 7} Following Bennett’s guilty plea, the trial court sentenced him in connection

with all three cases.   The court imposed a prison sentence of four years and a fine of $5,000

for the third degree drug possession count in Case No. CR-535160; a fine of $250 for the first

degree misdemeanor in Case No. CR-535402; and 17 months in prison for the fourth degree

drug possession count in Case No. CR-538045, to run consecutively with the four-year

sentence.   The court also suspended Bennett’s driver’s license until January 28, 2011.      The

trial court further informed Bennett that he would be subject to three-years mandatory

postrelease control following his release from prison.

                                                Sentence

       {¶ 8} In his first assignment of error, Bennett argues that the trial court abused its

discretion in sentencing him to nearly the maximum because it failed to consider the

overriding purposes of felony sentencing or the mandatory sentencing factors, as outlined in

R.C. 2929.11 and 2929.12.       He further argues in his second assignment of error that his

sentence must be vacated because the court failed to state its reasoning in support of his

sentence.   We disagree.

       {¶ 9} Appellate courts must apply a two-step approach when reviewing a defendant’s

sentence.   State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “First,
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they must 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.     If this first prong is satisfied, the trial court’s decision shall be reviewed under an

abuse-of-discretion standard.”     Id.

          {¶ 10} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio

Supreme Court held that trial courts “have full discretion to impose a prison sentence within

the statutory range and are no longer required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences.”                   Id. at ¶100.

Indeed, Foster severed those sections of the Revised Code that required trial courts to make

findings of fact before sentencing an offender to maximum or consecutive sentences.           Id. at

paragraphs one and three of the syllabus.     The Supreme Court recently upheld Foster in State

v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.

          {¶ 11} In Kalish, the Supreme Court explained that “[a]lthough Foster eliminated

mandatory judicial fact-finding for upward departures from the minimum, it left intact R.C.

2929.11 and 2929.12.       The trial court must still consider these statutes.”   Id. at ¶13, citing

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶38.

          {¶ 12} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.”          Kalish at ¶17.

“Instead, they serve as an overarching guide for trial judges to consider in fashioning an

appropriate sentence.     In considering these statutes in light of Foster, the trial court has full
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discretion to determine whether the sentence satisfies the overriding purpose of Ohio’s

sentencing structure.   Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its

discretion in considering whether its sentence complies with the purposes of sentencing.”       Id.

 “Therefore, assuming the trial court has complied with the applicable rules and statutes, the

exercise of its discretion in selecting a sentence within the permissible statutory range is

subject to review for abuse of discretion pursuant to Foster.”   Id.

       {¶ 13} In Kalish, the Supreme Court also made clear that even after Foster, “where the

trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is

presumed that the trial court gave proper consideration to those statutes.”    Id. at fn. 4, citing

State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.

       {¶ 14} R.C. 2929.11(A) provides that when a trial court sentences an offender for a

felony conviction it must be guided by the “overriding purposes of felony sentencing.”

Those purposes are “to protect the public from future crime by the offender and others and to

punish the offender.”    R.C. 2929.11(B) states that a felony sentence “must be reasonably

calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with and

not demeaning to the seriousness of the crime and its impact on the victim, and consistent with

sentences imposed for similar crimes committed by similar offenders.”         And R.C. 2929.12

sets forth factors concerning the seriousness of the offense and recidivism factors.
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       {¶ 15} After reviewing the record in this case, we find that it supports the inference

that the trial court properly considered the factors in R.C. 2929.12 and adhered to the purposes

and principles of sentencing set forth in R.C. 2929.11.    Here, the trial court specifically noted

in the sentencing entries that it considered “all required factors of law,” which this court has

previously held “is sufficient to show the consideration required by the court.”            State v.

Woodward, 8th Dist. Nos. 94672 and 94673, 2011-Ohio-104, ¶6.

       {¶ 16} We find no support in the record that the trial court abused its discretion in

imposing an aggregate sentence of five years and five months in prison for all three cases — a

sentence below the maximum and within the statutory range for the offenses.            Indeed, the

record reveals that the trial court ordered a PSI prior to sentencing and relied on the PSI before

imposing a less than maximum sentence in each case.          The PSI report reveals that Bennett

has a history of criminal convictions, including a juvenile record.     The record further reveals

that Bennett was under postrelease control at the time that he committed the underlying

offenses.   All of these factors sufficiently justified the length of Bennett’s sentence.

       {¶ 17} Finally, as for Bennett’s claim that the trial court abused its discretion in failing

to state its reasons on the record, there is no requirement for the trial court to do so.       See

Hodge, supra.

       {¶ 18} Accordingly, the first and second assignments of error are overruled.

       Judgment affirmed.
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       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

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.




MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
