[Cite as State v. Ewert, 2012-Ohio-2671.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. CT2012-0002
JOSHUA EWERT

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. CR2011-0203


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         June 14, 2012



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

D. MICHAEL HADDOX                              ROBERT D. ESSEX
PROSECUTING ATTORNEY                           604 East Rich Street
RONALD L. WELCH                                Columbus, Ohio 43215
ASSISTANT PROSECUTOR
27 North Fifth Street
Zanesville, Ohio 43701
Muskingum County, Case No. CT2012-0002                                                  2

Wise, J.

       {¶1} Defendant-Appellant Joshua Ewert appeals his sentence and conviction on

one count of breaking and entering and one count of theft following a guilty plea in the

Muskingum County Court of Common Pleas.

       {¶2} Plaintiff-Appellee is the State of Ohio.

                       STATEMENT OF THE CASE AND FACTS

       {¶3}   On September 7, 2011, Appellant Joshua Ewert was indicted for one count

of Breaking and Entering in violation of R.C. 2911.13, a felony of the fifth degree, and

one count of Theft in violation of R.C. 2913.02, also a felony of the fifth degree.

       {¶4} On December 6, 2011, Appellant pled guilty to both counts.

       {¶5} No joint recommendation or recommendation from the State was made as

to sentencing other than a request for restitution of $3,810.62.

       {¶6} The State agreed that Counts 1 and 2 merged for purposes of sentencing

and that Appellant should be sentenced on Count 1.

       {¶7} The trial court accepted Appellant's pleas, denied trial counsel's request for

a presentence investigation, and proceeded to sentence Appellant to a maximum

sentence of 12 months on Count One.

       {¶8} Appellant now appeals the sentence, assigning the following error for

review:

                               ASSIGNMENT OF ERROR

       {¶9} “I. PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL COURT’S

SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW, WAS AN
Muskingum County, Case No. CT2012-0002                                                      3


ABUSE      OF     DISCRETION,         AND     VIOLATED          THE    PROPORTIONALITY

REQUIREMENT OF OHIO SENTENCING LAWS. “

                                              I.

       {¶10} In his sole assignment of error, Appellant argues that the trial court erred in

sentencing. We disagree.

       {¶11} Within this assignment of error, defendant complains that the trial court did

not properly consider or apply the sentencing factors set forth in R.C. 2929.12 or apply

the need for rehabilitation under R.C. 2929.11(A). He additionally complains that the

court failed to consider the proportionality of the sentence.

       {¶12} We begin our analysis with the premise that the trial court has wide

discretion to sentence an offender within the allowable statutory range permitted for a

particular degree of offense. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In State

v. Foster, the Ohio Supreme Court stated that “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 paragraph seven of the syllabus.

       {¶13} R.C. 2929.11(B) provides that a felony sentence must be reasonably

calculated to achieve the two purposes set forth in 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 on similarly-situated offenders. The court must also

consider the seriousness and recidivism factors under R.C. 2929.12.

       {¶14} However, R.C. 2929.11 and 2929.12 do not mandate judicial fact-finding.

Rather, “[t]he court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. Thus, “in
Muskingum County, Case No. CT2012-0002                                                 4


exercising its discretion, a court is merely required to ‘consider’ the purposes of

sentencing in R.C. 2929.11 and the statutory * * * factors set forth in R.C. 2929.12.”

State v. Sutton, 8th Dist. No. 97132, 2012–Ohio–1054, ¶ 11, citing State v. Lloyd, 11th

Dist. No. 2006–L–185, 2007-Ohio-3013, ¶ 44.

       {¶15} 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. 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.

       {¶16} In State v. Hodge, 128 Ohio St.3d 1, 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. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, 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 and imposed no fact-finding

obligation on Ohio's trial courts. Id. at ¶ 39.

       {¶17} The General Assembly recently amended R.C. 2929.14(C)(4) and enacted

new language requiring fact-finding for consecutive sentences. Am.Sub.H.B. No. 86.

This legislation became effective September 30, 2011.

       {¶18} The value in the theft count was altered by H.B. 86, but the level of the

offense was not changed.
Muskingum County, Case No. CT2012-0002                                                    5


       {¶19} In the first step of our analysis, we review whether the sentence imposed is

contrary to law.

       {¶20} In the case at bar, Appellant was convicted of one count of breaking and

entering, in violation of R.C. 2911.13 and one count of theft, in violation of R.C. 2913.02,

both fifth degree felonies. The trial court merged the counts and sentenced Appellant on

the Breaking and Entering count.

       {¶21} Upon conviction for a felony of the fifth degree, the statutory sentencing

range is six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5).

       {¶22} Here, the trial court sentenced Appellant to the maximum sentence of

twelve months.

       {¶23} Upon review, we find that the trial court's sentencing on the charge

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised

Code and advised Appellant regarding post-release control. We therefore find that the

sentences are not clearly and convincingly contrary to law.

       {¶24} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.

Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.

       {¶25} Where the record lacks sufficient data to justify the sentence, the court may

well abuse its discretion by imposing that sentence without a suitable explanation.
Muskingum County, Case No. CT2012-0002                                                    6


Where the record adequately justifies the sentence imposed, the court need not recite

its reasons. State v. Middleton (Jan. 15, 1987), 8th Dist. No. 51545.

       {¶26} In other words, an appellate court may review the record to determine

whether the trial court failed to consider the appropriate sentencing factors. State v.

Firouzmandi, 5th Dist. No. 2006–CA-41, 2006–Ohio–5823 at ¶ 52.

       {¶27} Accordingly, appellate courts can find an “abuse of discretion” where the

record establishes that a trial judge refused or failed to consider statutory sentencing

factors. Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342.

       {¶28} An “abuse of discretion” has also been found where a sentence is greatly

excessive under traditional concepts of justice or is manifestly disproportionate to the

crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. The

imposition by a trial judge of a sentence on a mechanical, predetermined or policy basis

is subject to review. Woosley, supra at 143–145. Where the severity of the sentence

shocks the judicial conscience or greatly exceeds penalties usually exacted for similar

offenses or defendants, and the record fails to justify and the trial court fails to explain

the imposition of the sentence, the appellate court's can reverse the sentence. Woosley,

supra at 147. This by no means is an exhaustive or exclusive list of the circumstances

under which an appellate court may find that the trial court abused its discretion in the

imposition of sentence in a particular case. State v. Firouzmandi, supra.

       {¶29} Upon review of the record, we find no evidence the judge acted

unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on

impermissible factors, failing to consider pertinent factors, or giving an unreasonable

amount of weight to any pertinent factor. We find nothing in the record of Appellant's
Muskingum County, Case No. CT2012-0002                                                 7


case to suggest that his sentence was based on an arbitrary distinction that would

violate the Due Process Clause of the Fifth Amendment.

       {¶30} The trial court in this case considered Appellant’s extensive criminal

history, which included the fact that Appellant had just finished serving an eleven (11)

month sentence three weeks before he committed the instant offense. (T. at 12).

Appellant also had additional trespass and theft charges pending in municipal court at

the time of this sentencing. Id.

       {¶31} As to Appellant’s additional challenge regarding the proportionality and

consistency of the sentence, we note that he did not challenge the proportionality of his

sentence or the consistency of it as compared to other similar offenders in the court

below, therefore, he has waived this issue. State v. Santiago, 8th Dist. No. 95516,

2011–Ohio–3058; State v. Lycans, 8th Dist. No. 93480, 2010–Ohio–2780.

       {¶32} As relevant to this appeal, under R.C. 2929.11(B), a felony sentence must

be “consistent with sentences imposed for similar crimes committed by similar

offenders.” “To support a claim that a ‘sentence is disproportionate to sentences

imposed upon other offenders, a defendant must raise this issue before the trial court

and present some evidence, however minimal, in order to provide a starting point for

analysis and to preserve the issue for appeal.’ ” State v. Searles, 8th Dist. No. 96549,

2011–Ohio–6275, ¶ 25, quoting State v. Edwards, 8th Dist. No. 89181, 2007–Ohio–

6068, ¶ 11.

       {¶33} A felony sentence should be proportionate to the severity of the offense

committed, so as not to “shock the sense of justice in the community.” State v. Chafin,

30 Ohio St.2d 13, 17. See also R.C. 2929.11(B). A defendant alleging disproportionality
Muskingum County, Case No. CT2012-0002                                                 8


in felony sentencing has the burden of producing evidence to “indicate that his sentence

is directly disproportionate to sentences given to other offenders with similar records

who have committed these offenses * * *.” State v. Breeden, 8th Dist. No. 84663, 2005–

Ohio–510, ¶ 81.

      {¶34} Not only did Appellant not raise this issue below, Appellant fails to provide

this Court with any explanation or evidence as to why or how Appellant’s sentence is

disproportionate.

      {¶35} While not specifically raised as error, Appellant cites to the trial court’s

failure to order a pre-sentence investigation in this case before imposing his sentence.

We note that Crim.R. 32.2. provides that “[i]n felony cases the court shall, and in

misdemeanor cases the court may, order a presentence investigation and report before

imposing community control sanctions or granting probation.” Therefore, unless a

sentencing court is imposing community control or granting probation in a felony case,

there is no requirement that a court order a pre-sentence investigation. State v. Cyrus

(1992), 63 Ohio St.3d 164.
Muskingum County, Case No. CT2012-0002                                           9


      {¶36} Appellant’s sole Assignment of Error is overruled.

      {¶37} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                 JUDGES
JWW/d 0606
Muskingum County, Case No. CT2012-0002                                          10


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




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
JOSHUA EWERT                             :
                                         :
       Defendant-Appellant               :         Case No. CT2012-0002




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

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

       Costs assessed to Appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                            JUDGES
