[Cite as State v. Toney, 2011-Ohio-2464.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 10 MA 20
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
HERMAN TONEY                                  )
aka ROCKY COLLINS                             )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 09 CR 1083

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Stephen M. Maszczak
                                                   3722 Starrs Centre Drive, Suite B
                                                   Canfield, Ohio 44406

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                   Dated: May 18, 2011
[Cite as State v. Toney, 2011-Ohio-2464.]
WAITE, P.J.


        {1}      Appellant Herman A. Toney, aka Herman A. Tony, aka Rocky Collins, is

appealing his 14-month prison sentence following his guilty plea for felony theft and

felony obstruction of justice. The maximum possible prison term for the two crimes

was thirty months.         The prosecutor recommended a 12-month prison term, and

Appellant believes the trial court committed reversible error when it did not accept the

prosecutor’s recommendation and did not explain why the recommendation was not

followed. The trial court has the discretion to disregard a prosecutor’s recommended

sentence, and no abuse of discretion is indicated in the record of this case. The

judgment of the trial court is affirmed.

        {2}      Appellant was indicted on October 8, 2009, on one count of theft, R.C.

2913.02(A)(3), a fourth degree felony; one count of tampering with evidence, R.C.

2921.12(A)(1), a third degree felony; and one count of identity fraud, R.C.

2913.49(B)(1), also a third degree felony. On November 17, 2009, Appellant entered

into a written Crim.R. 11 plea agreement. He pleaded guilty to a fourth-degree felony

count of theft and one count of obstructing justice, R.C. 2921.32(A)(6), a fifth-degree

felony. The remaining charges in the indictment were dropped, and the prosecutor

agreed to recommend a 12-month prison term. After a plea hearing, the guilty plea

was accepted and sentencing was scheduled for January 12, 2010. At sentencing,

the court noted that Appellant had used eighteen different aliases during his criminal

career, he had a lengthy criminal record, and that the victim was an elderly woman.

(Tr., pp. 9-10.) The prosecutor repeated its 12-month prison term recommendation,

but the court decided to impose fourteen months for the theft charge and twelve
                                                                                         -2-

months for obstruction of justice, to be served concurrently.          This timely appeal

followed.

                               ASSIGNMENT OF ERROR

       {3}    “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED

CONTRARY TO LAW IN IMPOSING A TOTAL SENTENCE OF FOURTEEN

MONTHS WHERE THE STATE RECOMMENDED A 12 MONTH SENTENCE, THE

DEFENDANT AGREED TO SUCH A SENTENCE IN THE RULE 11 AGREEMENT,

AND THE RECORD DOES NOT JUSTIFY THE IMPOSITION OF SUCH A LONGER

SENTENCE.”

       {4}    Appellant contends that the trial court abused its discretion when it

failed to impose the sentence recommended by the prosecutor and failed to explain

why it did not follow the recommendation.

       {5}    Based on the felony sentencing review statute, R.C. 2953.08(G)(2), the

Ohio Supreme Court has held that the appellate courts must use a two-prong

approach when dealing with sentencing issues:            “First, 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.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶4 (O’Connor, J., plurality opinion), citing State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
                                                                                        -3-

      {6}    The analysis of whether a sentence is clearly and convincingly contrary

to law hinges on a trial court’s “compliance with all applicable rules and statutes” in

imposing the sentence. Kalish, at ¶26. For example, a trial court’s sentence does

not demonstrate compliance if it falls outside of the permissible statutory range,

contravenes a statute, or is decided pursuant to an unconstitutional statute. See

State v. McGowan, 7th Dist. No. 09 JE 24, 2010-Ohio-1309, at ¶66. In examining “all

applicable rules and statutes,” the sentencing court must consider R.C. 2929.11 and

R.C. 2929.12. State v. Gray, 7th Dist. No. 07 MA 156, 2008-Ohio-6591, at ¶8, citing

Kalish ¶13-14 (O'Connor, J., plurality opinion). Typically, a trial court is expected to

at least make a “rote recitation” that it considered these two statutes, but even a

silent record raises a rebuttable presumption that the sentencing court considered all

the proper criteria. State v. Merriweather, 7th Dist. No. 09 MA 160, 2010-Ohio-2279,

¶8; State v. Ballard, 7th Dist. No. 08 CO 13, 2009-Ohio-5472, ¶71; State v. James,

7th Dist. No. 07 CO 47, 2009-Ohio-4392, ¶50.

      {7}    If this inquiry is satisfied, an appellate court then reviews the trial court's

sentencing decision for an abuse of discretion. Kalish at ¶17, 19-20. An abuse of

discretion means more than an error of judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d

151, 157, 16 O.O.3d 169, 404 N.E.2d 144. Thus, in the felony sentencing context,

“[a]n abuse of discretion can be found if the sentencing court unreasonably or

arbitrarily weighs the factors in R.C. 2929.11 and R.C. 2929.12.” State v. Heverly,

7th Dist. No. 09 CO 4, 2010-Ohio-1005, ¶34. Although the trial court formerly was
                                                                                      -4-

required to engage in detailed judicial factfinding in order to justify imposing

maximum or consecutive sentences, this is no longer the case.            Foster, supra,

paragraph seven of the syllabus. The decision to impose maximum or consecutive

sentences is simply part of the trial court's overall discretion in issuing a felony

sentence and is no longer tied to mandatory factfinding provisions. Id. Foster also

held that the section of the felony sentencing review statute, R.C. 2953.08(G),

requiring review of the trial court’s mandatory findings of fact at sentencing, was no

longer applicable. Id. at ¶99.

       {8}    Appellant does not cite to any relevant fact or law to indicate that his

sentence is clearly and convincingly contrary to law. Appellant’s sole allegation is

that the trial court abused its discretion by imposing a slightly longer prison term than

recommended by the prosecutor. Although a prosecutor may agree to recommend a

specific prison term as part of a Crim.R. 11 plea agreement, the resulting plea

agreement is not a bargain requiring a specific punishment to be meted out; the

actual punishment is left to the discretion of the sentencing judge. State v. Brown,

7th Dist. No. 08 MA 13, 2009-Ohio-1172, ¶17; State v. Mathews (1982), 8 Ohio

App.3d 145, 146, 456 N.E.2d 539. A trial court is free to impose any lawful sentence,

and may impose a greater sentence than that recommended by the prosecutor.

State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶13.

Courts may deviate from the prosecutor’s recommendation in sentencing even when

the recommended sentence induces the defendant to plead guilty to an offense.

State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-6806, ¶8, citing Buchanan.
                                                                                     -5-

Normally, a court should explain why it imposes a sentence greater than that

recommended by the prosecutor, unless it is otherwise clear from the record. Akron

v. Ragsdale (1978), 61 Ohio App.2d 107, 109, 399 N.E.2d 119; State v. Gant, 7th

Dist. No. 04 MA 252, 2006-Ohio-1469. There are exceptions, though, to the general

rule. As stated in Ragsdale: “In some cases, however, the facts themselves speak

so eloquently that no statement by the judge is required.” Id. at 109, 399 N.E.2d 119.

      {9}    The record reflects a number of reasons why the court imposed a 14-

month prison sentence in this case. The court pointed out that Appellant had used

eighteen different aliases during his criminal career, and identity fraud was one of the

crimes charged in the original indictment.      The court noted Appellant’s lengthy

criminal record, and specifically mentioned that the victim was an elderly woman.

The trial court explained to Appellant what the maximum penalties for the charges as

pleaded were during the plea hearing, and specifically told him that “[s]entencing is

always up to the Judge.      It is not up to you, your lawyer, or the prosecutor.”

(11/16/09 Tr., p. 7).   A defendant who is advised by the court of the maximum

sentence that he may receive has knowledge that the court is not bound by the

state's agreement to recommend a lesser sentence. State v. Darmour (1987), 38

Ohio App.3d 160, 160-161, 529 N.E.2d 208.

      {10}   It is also clear from the record that Appellant’s plea bargain

substantially reduced the potential penalty in this case by reducing the number of

charges against him as well as the severity of the charges. Appellant was originally

charged with three felony crimes that carried a combined potential prison term of
                                                                                   -6-

eleven and one-half years. The subsequent plea bargain resulted in convictions for

one fourth-degree felony and one fifth-degree felony, with a potential prison term of

two and one-half years. A sentencing court can consider charges that have been

dismissed or reduced pursuant to a plea agreement. State v. Starkey, 7th Dist. No.

06MA110, 2007-Ohio-6702, ¶2; State v. Cooey (1989), 46 Ohio St.3d 20, 35, 544

N.E.2d 895; State v. Burton (1977), 52 Ohio St.2d 21, 23, 368 N.E.2d 297.

       {11}   Even if the record had been completely silent as to the reasons that the

trial court imposed a 14-month sentence, the court’s sentencing decision would be

presumed to be correct. Kalish, supra, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, ¶18, fn. 4. Here, the record is not silent, and there is no indication any

abuse of discretion exists in imposing a sentence that is two months longer than the

sentence recommended by the prosecutor. Appellant’s sole assignment of error is

overruled and the judgment of the trial court is affirmed.


Vukovich, J., concurs.

DeGenaro, J., concurs.
