[Cite as State v. Hoffman, 2014-Ohio-1205.]


                                IN THE COURT OF APPEALS OF OHIO
                                   FOURTH APPELLATE DISTRICT
                                       PICKAWAY COUNTY

STATE OF OHIO,                                       :

         Plaintiff-Appellee,                         :
                                                                                Case No. 13CA13
         v.                                          :
                                                                                DECISION AND
THOMAS D. HOFFMAN, JR.,                              :                          JUDGMENT ENTRY

         Defendant-Appellant.                        :                          RELEASED 03/21/2014


                                               APPEARANCES:

Jeremiah J. Spires, Lancaster, Ohio, for Defendant-Appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Matthew S. Tootle, Assistant
Pickaway County Prosecuting Attorney, Circleville, Ohio, for Plaintiff-Appellee.



Hoover, J.


         {¶ 1} Defendant-appellant, Thomas D. Hoffman, Jr., appeals his sentence for domestic

violence entered by the Pickaway County Common Pleas Court. In his single assignment of

error, Hoffman contends that the trial court erred by imposing the maximum period of

incarceration for his conviction. For the following reasons, we affirm the judgment of the trial

court.

         {¶ 2} Hoffman was indicted on one, fourth degree felony count of domestic violence in

violation of R.C. 2919.25(A).1 The indictment indicated that Hoffman had a previous conviction

in Circleville Municipal Court for domestic violence in 2008. The instant charge stemmed from

a December 2012 incident, where Hoffman allegedly assaulted his longtime, live-in girlfriend,

1
 A violation of R.C. 2919.25(A) is a fourth degree felony where the offender has previously pled guilty to or been
convicted of domestic violence. R.C. 2919.25(D)(3).
Pickaway App. No. 13CA13                                                                                        2


Amy Conner, at their home in Circleville, Ohio. Hoffman pled not guilty to the charge and the

case proceeded to jury trial. At the conclusion of the one-day jury trial, Hoffman was found

guilty. The jury also made a special finding that Hoffman had a previous conviction for

domestic violence. The trial court ordered a presentence investigation and report and set

sentencing for a later date.

        {¶ 3} At the sentencing hearing, the trial judge indicated that Hoffman refused to

cooperate with the probation department, and thus, no presentence investigation report was

completed. However, the judge indicated that he was able to procure Hoffman’s criminal record

from the Pickaway County Sheriff’s Office.2 The judge proceeded to sentence Hoffman to 18

months in prison. This appeal followed.

        {¶ 4} Hoffman raises the following assignment of error:

        THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S CONCLUSION
        THAT MR. HOFFMAN COMITTED THE WORST FORM OF THE OFFENSE
        OF DOMESTIC VIOLENCE; THIS COURT SHOULD REVERSE THAT
        COURT’S IMPOSITION OF THE MAXIMUM SENTENCE AS TO HIS
        CONVICTION.
        {¶ 5}     In his sole assignment of error, Hoffman contends that the trial court improperly

sentenced him to the maximum prison sentence permitted by law. Specifically, Hoffman

contends that the record does not support such sentence. We disagree.

        {¶ 6}     This Court, in its principal opinion, recently declined to review a felony sentence

under the two-step approach first declared in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-

4912, 896 N.E.2d 124. See State v. Bever, 4th Dist. Washington No. 13CA21, 2014-Ohio-600,

¶¶ 8-13.3 Rather, the principal opinion applied the standard set forth in R.C. 2953.08. Several


2
 Hoffman’s criminal record was filed in the trial court and is part of the record on appeal.
3
 But see the concurring opinion of Harsha, J., in which Judge William H. Harsha suggests that the Kalish approach
may still be appropriate in certain circumstances. See also Judge Matthew W. McFarland’s vote in the case, in
which he concurred in judgment only.
Pickaway App. No. 13CA13                                                                           3


other Ohio appellate courts have abandoned the Kalish approach, and now review felony

sentences in accordance with R.C. 2953.08. See State v. White, 2013-Ohio-4225, 997 N.E.2d

629, ¶ 9 (1st Dist.) (“Thus, henceforth, we will apply the statutory standard rather than the Kalish

plurality framework to our review of felony sentences.”); State v. Worth, 10th Dist. Franklin No.

10AP–1125, 2012–Ohio–666, ¶ 83 (the court applied the statutory test and noted that, as a

plurality opinion, Kalish is of limited precedential value); State v. Rodeffer, 2nd Dist.

Montgomery Nos. 25574, 25575, & 25576, 2013-Ohio-5759, ¶ 29 (“In order to be consistent

with the approach of other Ohio appellate districts that have already considered this issue in light

of H.B. No. 86, we will no longer apply the two-part test in Kalish when reviewing felony

sentences controlled by H.B. 86. From now on we will use the standard of review set forth in

R.C. 2953.08(G)(2).”); State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7

(“Accordingly, we find that the standard of review set forth in R.C. 2953.08(G)(2) shall govern

all felony sentences.”); State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-

3315, ¶ 6 (“[F]rom this day forward, rather than continue to apply the two-step approach as

provided by Kalish, we find ‘the standard of review set forth in R.C. 2953.08(G)(2) shall govern

all felony sentences.’ ”); State v. Fletcher, 3rd Dist. Auglaize No. 2-13-02, 2013-Ohio-3076, ¶ 14

(utilizing R.C. 2953.08 to review a trial court’s imposed sentence); State v. Tammerine, 6th Dist.

Lucas No. L-13-1081, 2014-Ohio-425, ¶¶ 10, 16 (“Given recent legislative action in Ohio,

culminating in the passage of a new statute directly addressing appellate court felony sentence

review and a growing body of recent appellate cases applying the new statutory parameters, we

are no longer utilizing the former Kalish approach. *** Based upon all of the foregoing, we now

likewise apply the statutory standard of review rather than the former Kalish approach to our

review of felony sentences.”).
Pickaway App. No. 13CA13                                                                          4


       {¶ 7} R.C. 2953.08(G)(2) provides that:

       (2) The court hearing an appeal under division (A), (B), or (C) of this section shall

       review the record, including the findings underlying the sentence or modification

       given by the sentencing court.

       The appellate court may increase, reduce, or otherwise modify a sentence that is

       appealed under this section or may vacate the sentence and remand the matter to

       the sentencing court for resentencing. The appellate court's standard for review is

       not whether the sentencing court abused its discretion. The appellate court may

       take any action authorized by this division if it clearly and convincingly finds

       either of the following:

       (a) That the record does not support the sentencing court's findings under division

       (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

       division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

       (b) That the sentence is otherwise contrary to law.

       {¶ 8} Under R.C. 2953.08(G)(2), we may only modify or vacate a defendant’s sentence

if we find, clearly and convincingly, that (1) the record does not support the mandatory

sentencing findings, or (2) that the sentence is “otherwise contrary to law.” We recognize that

this is an “extremely deferential standard of review.” State v. Venes, 2013-Ohio-1891, 992

N.E.2d 453, ¶ 21 (8th Dist.). Although Kalish may not provide the standard of review

framework for reviewing felony sentences, it does provide guidance for determining whether a

sentence is clearly and convincingly contrary to law. See State v. Lee, 12th Dist. Butler No.

CA2012-09-182, 2013-Ohio-3404, ¶ 10. According to Kalish, a sentence is not clearly and

convincingly contrary to law when the trial court: considers the purposes and principles set forth
Pickaway App. No. 13CA13                                                                              5


in 2929.11; considers the seriousness and recidivism factors listed in R.C. 2929.12; properly

applies post release control; and sentences the defendant within the permissible statutory range.

Id.; see also Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 18.

       {¶ 9} This appeal concerns the imposition of a maximum sentence; thus, our review is

governed by R.C. 2953.08(A) & (G)(2)(b). Here, we are not focused on any mandatory

sentencing findings, referred to in R.C. 2953.08(G)(2)(a), since maximum sentences do not

require specific findings. White, supra, ¶ 7. Therefore, we review appellant’s maximum

sentence to determine if it is clearly and convincingly contrary to law.

       {¶ 10} Here, the trial court convicted Hoffman of domestic violence under R.C.

2919.25(A), a fourth degree felony, and sentenced him to 18 months in prison. Under R.C.

2929.14(A)(4), the range of statutory prison terms for a fourth degree felony is 6 to 18 months.

Thus, while the trial court imposed the maximum sentence, the sentence was within the

permissible statutory range. Moreover, the trial court judge asserted at the sentencing hearing

and in the sentencing entry that he considered the purposes of felony sentencing and the statutory

seriousness and recidivism factors in determining the sentence. R.C. 2929.11 and 2929.12.

Finally, the trial court properly notified Hoffman at his sentencing hearing, and in its sentencing

entry, that he might be subject to a period of post release control for up to three years following

his release from prison.

       {¶ 11} At the sentencing hearing, the trial judge noted that: “Mr. Hoffman has no

remorse for his conduct with respect to this offense, the court is of the opinion he’s deserving of

the maximum penalty.” [Transcript at 168.] The judge further noted:

       Also, since you wouldn’t cooperate with the pre-sentence investigation, I had the

       Sheriff’s Office pull your record just for the file, and you’ve been convicted of
Pickaway App. No. 13CA13                                                                            6


           this offense, which we knew that because that’s one of the elements of this

           offense, and you’ve also been to prison before. * * * And there was also, as I

           recall, a civil protection order4 in place at the time you committed this offense. * *

           * There wasn’t any order preventing her from living with you, which obviously

           the evidence was you two were living together, but obviously there’s also that

           you’re not to commit any acts of violence against her. So, based upon that,

           coupled with your record, the court makes a finding that it’s the worst form of this

           offense, and pursuant to 2929.11 and 2929.12 all factors considered, the court

           considered the eighteen months sentence, the maximum, to be appropriate in the

           case. That’s just for the record. That’s all.

[Transcript at 170-171.] Finally, the sentencing entry also notes that the trial court considered

“the within offense[,] is the worst form of said offense.” [Sentencing Entry at 1.]

           {¶ 12} Hoffman specifically takes issue with the judge’s assessment that the offense

committed was “the worst form” of domestic violence. He argues that the state’s evidence only

proved minor injuries and that the evidence did not justify the court’s finding.

           {¶ 13} Although trial courts have full discretion to impose any term of imprisonment

within the statutory range, they must consider the sentencing purposes in R.C. 2929.11 and the

guidelines contained in R.C. 2929.12.

           {¶ 14} H.B. 86 amended R.C. 2929.11, which now states:

           (A) A court that sentences an offender for a felony shall be guided by the

           overriding purposes of felony sentencing. The overriding purposes of felony

           sentencing are 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
4
    The trial record contains a copy of the civil protection order.
Pickaway App. No. 13CA13                                                                               7


       accomplish those purposes without imposing an unnecessary burden on state or

       local government resources. 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.

       {¶ 15} “However, there is still no ‘mandate’ for the sentencing court to engage in any

factual findings under R.C. 2929.11 or R.C. 2929.12.” State v. Jones, 12th Dist. Butler No.

CA2012–03–049, 2013–Ohio–150, ¶ 49, citing State v. Rose, 12th Dist. Butler No. CA2011–11–

214, 2012–Ohio–5607, ¶ 78; State v. Putnam, 11th Dist. Lake No.2012–L–026, 2012–Ohio–

4891, ¶ 9. “Rather, the trial court still has discretion to determine whether the sentence satisfies

the overriding purpose of Ohio's sentencing structure.” Jones at ¶ 49; See R.C. 2929.12 (which

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).

       {¶ 16} Here, the trial court based its decision to impose the maximum prison sentence

because Hoffman had an extensive criminal history, had previously been to prison, had violated

the terms of the civil protection order, and was not remorseful for his actions. The trial court had

a copy of Hoffman’s criminal record, and Hoffman admitted that he had been to prison before.

The trial court also had a copy of the civil protection order and was able to observe the demeanor

of Hoffman during trial and sentencing. Moreover, it appears that the trial court’s “worst form”

of the offense language is a remnant of former R.C. 2929.14(C). Under former R.C. 2929.14(C),

prior to imposing maximum sentences for felony convictions, trial court’s were required to make

certain findings, including, inter alia, that the offender committed the worst form of the offense.

See State v. Combs, 2nd Dist. Clark No. 2013-CA-6, 2013-Ohio-4816, ¶ 7. However, that part of
Pickaway App. No. 13CA13                                                                             8


the statute was severed, on constitutional grounds, in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470, and was not reenacted by the passage of H.B. 86. Id. at ¶¶ 8-11.

       {¶ 17} In sum, the record reflects that the trial court considered the purposes and

principles of felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism

factors under R.C. 2929.12. And as mentioned above, the trial court’s sentence was within the

permissible statutory range for the offense committed. Furthermore, the trial court properly

advised Hoffman regarding post release control. Therefore, the trial court complied with all

applicable rules and statutes and, as a result, Hoffman's sentence is not clearly and convincingly

contrary to law.

       {¶ 18} Accordingly, Hoffman’s sole assignment of error is overruled and the judgment

of the Pickaway County Common Pleas Court is affirmed.

                                                                       JUDGMENT AFFIRMED.
Pickaway App. No. 13CA13                                                                          9


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Pickaway County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.


Abele, P.J. and McFarland, J.: Concur in Judgment Only.

                                                             For the Court

                                                             By:
                                                               Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
