[Cite as State v. Atkinson, 2018-Ohio-4290.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. John W. Wise, P.J.
                                               :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. CT2018-0015
ERIC R. ATKINSON                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Muskingum
                                                   County Court of Common Pleas, Case No.
                                                   CR2017-0410



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            October 22, 2018




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GERALD ANDERSON                                    JOHN RUTAN
Muskingum Couty Prosecutor’s Office                336 South High Street
27 North 5th Street, Ste. 201                      Columbus, OH 43215
Zanesville, OH 43701
[Cite as State v. Atkinson, 2018-Ohio-4290.]


Gwin, J.,

        {¶1}     Defendant-appellant Eric A. Atkinson [“Atkinson”] appeals the imposition of

a maximum sentence after his negotiated guilty plea in the Muskingum County Court of

Common Pleas.

                                         Facts and Procedural History

        {¶2}     Atkinson was indicted on Count One, Felonious Assault, in violation of R.C.

2903.11(A)(1), a felony of the second degree; Count Two, Domestic Violence (Prior

Offense), in violation of 2919.25(A), a felony of the fourth degree; Counts Three and Four,

Assault on a Peace Officer, in violation of R.C. 2903.13(A), each a felony of the fourth

degree; and Count Five, Resisting Arrest, in violation of R.C. 2921.33(B), a first degree

misdemeanor.

        {¶3}     Atkinson entered a guilty plea on January 11, 2018, to Counts One, Two,

and Five.      The state agreed to dismiss Counts Three and Four. A pre-sentence

investigation report was prepared. According to the report, A.B. was taking her children

trick-or-treating for Halloween on October 29, 2017. She went with her friend in her

friend's neighborhood, who lives near Atkinson. Atkinson is the father of the children.

As they walked past Atkinson's residence, he came out to the street wearing a mask to

scare the children. When A.B. asked him to stop, they began arguing. Atkinson pushed

her, then she kicked him, and he punched her in the face, and then pushed her again.

A.B. and her group went back to her friend's residence and called the Sherriff’s office.

A.B. began vomiting and feeling sick, and while speaking with law enforcement, she lost

consciousness.         The Officers then responded to Atkinson’s residence.        Atkinson
Muskingum County, Case No. CT2018-0015                                                 3


admitted assaulting A.B., but claimed it was in self-defense because she kicked him in

the groin.

         {¶4}   Atkinson was sentenced on February 12, 2018. The trial court merged

Count One and Count Two. The state elected to move forward on Count One. The trial

court sentenced Atkinson to an eight-year sentence on Count One and a six-month

sentence on Count Five, to be served concurrently for an aggregate sentence of eight

years.

                                       Assignment of Error

         {¶5}   Atkinson raises one assignment of error,

         {¶6}   “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE

APPELLANT TO A MAXIMUM PRISON TERM.”

                                        Law and Analysis

         Standard of Appellate Review.

         {¶7}   We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31.              R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

         {¶8}   Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the
Muskingum County, Case No. CT2018-0015                                                         4


record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law.

        {¶9}   Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

        ISSUE FOR APPEAL.

        Whether the trial court properly imposed the maximum sentence in Atkinson’s

case.

        (1). R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.

        {¶10} A trial court’s imposition of a maximum prison term for a felony conviction

is not contrary to law as long as the sentence is within the statutory range for the offense,

and the court considers both the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.

Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16; State

v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶16.

        {¶11} In State v. Marcum, the Supreme Court observed,

               We note that some sentences do not require the findings that R.C.

        2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
Muskingum County, Case No. CT2018-0015                                                   5


      appellate courts to review those sentences that are imposed solely after

      consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

      that is equally deferential to the sentencing court. That is, an appellate court

      may vacate or modify any sentence that is not clearly and convincingly

      contrary to law only if the appellate court finds by clear and convincing

      evidence that the record does not support the sentence.

146 Ohio St.3d at ¶ 23, 2016–Ohio–1002, 59 N.E.3d 123.

      {¶12} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

      {¶13} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12 is a

guidance statute that sets forth the seriousness and recidivism criteria that a trial court

“shall consider” in fashioning a felony sentence. Subsections (B) and (C) establish the

factors indicating whether the offender's conduct is more serious or less serious than

conduct normally constituting the offense. These factors include the physical or mental

injury suffered by the victim due to the age of the victim; the physical, psychological, or
Muskingum County, Case No. CT2018-0015                                                   6


economic harm suffered by the victim; whether the offender’s relationship with the victim

facilitated the offense; the defendant’s prior criminal record; whether the defendant was

under a court sanction at the time of the offense; whether the defendant shows any

remorse; and any other relevant factors. R.C. 2929.12(B). The court must also consider

any factors indicating the offender’s conduct is less serious than conduct normally

constituting the offense, including any mitigating factors. R.C. 2929.12(C). Subsections

(D) and (E) contain the factors bearing on whether the offender is likely or not likely to

commit future crimes.

      {¶14} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,

the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,

845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding 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.” Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.

      {¶15} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶

13, see also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.
Muskingum County, Case No. CT2018-0015                                                       7

       {¶16} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,

4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts

are still required to consider the general guidance factors in their sentencing decisions.

       {¶17} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252, 2006–Ohio–1469, at ¶ 60 (nothing in R.C. 2929.12 or

the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth

its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD–05–024, 2005–Ohio–6405, ¶ 10 (trial court was not required

to address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–Ohio–1342, ¶ 19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”) (citations omitted); State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-

8996, ¶23.

       {¶18} In the case at bar, the trial court had the benefit of a pre-sentence

investigation report, a letter from B.A., letters on behalf of Atkinson and B.A. and the

arguments of counsel. The trial court observed,

              You have three prior felony convictions, the last one being a weapon

       under disability; the other two being one possession of cocaine, an F4, and
Muskingum County, Case No. CT2018-0015                                                   8


      possession of marijuana; and prior to that was possession of cocaine with

      a forfeiture specification where 11 firearms, were taken away. And you

      were on community control with that when you committed this offense.

             The Court would also note that you were charged twice with domestic

      violence, only the -- one was the conviction. You have seven suspensions

      of your license.

                                               ***

             According to the presentence investigation, there's been two

      surgeries already. There's additional mental and dental things that had to

      be dealt with. And after she heals, in a year there will be two addition --

      more additional surgeries at least. That's why no restitution's being ordered

      at this point in time. It won't be known for quite some time, because her

      injuries are going to take forever. I don't know if the children's injuries will

      ever be recovered. They were out trick-or-treating when all this happened.

             Upon review of all this, the Court feels that the appropriate sentence

      will be an eight-year sentence on the felony of the second degree; a six-

      month sentence on the misdemeanor of the first degree, to be served

      concurrently. The Court will order that you be given 12 days credit towards

      that sentence.

             The Court finds that -- this to be appropriate, given the nature and

      seriousness of your conduct, when it occurred, how it occurred, and the fear

      that you have created to those around you.

Sent. T. Feb. 12, 2018 at 9-11.
Muskingum County, Case No. CT2018-0015                                                     9


       {¶19} Accordingly, the trial court considered the purposes and principles of

sentencing [R.C. 2929.11] as well as the factors that the court must consider when

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation

to state reasons to support its findings. Nor is it required to give a talismanic incantation

of the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.

       {¶20} Upon a thorough review, we find the record clearly and convincing supports

the sentence imposed by the trial court. We find the trial court properly considered the

purposes and principles of sentencing set forth in R.C. 2929.11, as well as the applicable

factors set forth in R.C. 2929.12, along with all other relevant factors and circumstances.

While Atkinson may disagree with the weight given to these factors by the trial judge,

Atkinson’s sentence was within the applicable statutory range and therefore, we have no

basis for concluding that it is contrary to law.

       {¶21} Atkinson’s sole assignment of error is overruled. The judgment of the

Muskingum County Court of Common Pleas is affirmed.

By Gwin, J.,

Wise, P.J., and

Delaney, J., concur
