[Cite as State v. Bartoe, 2011-Ohio-2521.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95286




                                         STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                         JACOB BARTOE

                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED
                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-529964

       BEFORE: Kilbane, A.J., Jones, J., and S. Gallagher, J.

    RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT

Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:

       {¶ 1} Defendant-appellant, Jacob Bartoe (Bartoe), appeals his sentence.

 Finding no merit to the appeal, we affirm.

       {¶ 2} In October 2009, Bartoe, and codefendant Christopher Jones

(Jones) were charged with two counts aggravated robbery (Counts 1 and 2)

and two counts of kidnapping (Counts 3 and 4). All four counts carried a

one-   and   three-year   firearm   specification   and   a   weapon   forfeiture

specification.   Bartoe proceeded to a jury trial, at which the following

evidence was adduced.

       {¶ 3} On October 8, 2009, Stephen Donahue (Donahue), Bartoe, and

Jones drove to Devon Boepple’s (Boepple) apartment. Inside the apartment,

the group smoked marijuana.         At some point, Donahue went into the

bathroom.    When he walked out, Donahue observed Jones with a gun.

Jones pointed the gun at Donahue and Beopple, ordering Beopple to give him

her money. Then, Bartoe grabbed Donahue in a choke hold and Jones hit

Beopple with his gun. He also punched Beopple several times. Donahue

struggled with Bartoe and was released from Bartoe’s hold after he hit Bartoe

in the head with an ashtray. At the same time, Beopple managed to flee
from Jones and ran to her neighbor’s apartment for help. Bartoe and Jones

then fled from the apartment. Donahue attempted to chase after Bartoe and

Jones, but they drove away.

      {¶ 4} At the conclusion of trial, the jury found Bartoe guilty of all

charges and firearm specifications. The trial court found Bartoe guilty of all

weapon forfeiture specifications.    Counts 1 and 2 merged for purposes of

sentencing and the State elected to proceed with Count 1. On May 28, 2010,

the trial court sentenced Bartoe to four years in prison on each of Counts 1, 3,

and 4, to be served concurrently to each other, and three years in prison on

the firearm specifications, to be served consecutively to Counts 1, 3, and 4, for

an aggregate of seven years in prison.

      {¶ 5} Bartoe now appeals, raising the following single assignment of

error for review.

      ASSIGNMENT OF ERROR ONE

      “[Bartoe] was denied due process of law when the court
      imposed a sentence that was disproportionate to that
      imposed upon a more culpable codefendant, in violation of
      R.C. 2929.11(B)[.]”

      {¶ 6} The Ohio Supreme Court has set forth the applicable standard of

appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶4:

      “In applying [State v. Foster, 109 Ohio St.3d 1,
      2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes,
        appellate courts must apply a two-step approach. 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.”1

        {¶ 7} Bartoe argues that his sentence was contrary to law because it is

disproportionate to the sentence imposed on codefendant Jones. Apparently,

the State offered Jones a plea deal in exchange for his testimony in Bartoe’s

case.    On June 2, 2010, Jones pled guilty to amended charges, which

included one count of aggravated robbery, a one-year firearm specification,

and a weapon forfeiture specification. The trial court sentenced Jones to an

aggregate of four years in prison. Bartoe contends that since his sentence is

inconsistent with Jones’s sentence, the trial court imposed his sentence

without regard to R.C. 2929.11(B) and violated his constitutional rights.

        {¶ 8} We note that while Foster eliminated mandatory judicial

fact-finding, it left R.C. 2929.11 and 2929.12 intact, setting forth the

statutory factors that the trial court must consider when imposing its

sentence. Kalish at ¶13.

        {¶ 9} Relevant to this appeal, R.C. 2929.11(B) provides that:       “[a]

sentence imposed for a felony shall be reasonably calculated to achieve the


        1 We
           recognize Kalish is merely persuasive and not necessarily controlling
because it has no majority. The Supreme Court split over whether we review
sentences under an abuse-of-discretion standard in some instances.
two overriding purposes of felony sentencing set forth in division (A) of this

section, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with

sentences imposed for similar crimes committed by similar offenders.”2

      {¶ 10} This court has previously recognized that there is no requirement

for judicial findings in either R.C. 2929.11 or R.C. 2929.12, and that the trial

court is required only to carefully consider the statutory factors before

imposing its sentence.       State v. Samuels, Cuyahoga App. No. 88610,

2007-Ohio-3904, ¶15.      Furthermore, the Kalish court recognized that R.C.

2929.11 and 2929.12 are not fact-finding statutes; rather, they “serve as an

overarching guide for trial judges to consider in fashioning an appropriate

sentence.” Id. at ¶17. “In considering these statutes in light of Foster, the

trial court has full discretion to determine whether the sentence satisfies the

overriding purposes of Ohio’s sentencing structure.” Id.




      2R.C. 2929.11(A) provides that: “[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. 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.”
      {¶ 11} In the instant case, there is nothing in the record to demonstrate

that Bartoe’s sentence is contrary to law. First, his sentence is within the

permissible statutory range. Second, the record reflects that the trial court

considered the factors in R.C. 2929.11. Accordingly, Bartoe’s sentence is not

contrary to law.

      {¶ 12} Having satisfied step one, we next consider whether the trial

court abused its discretion. An ‘“abuse of discretion’ connotes more than an

error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.’” Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151,

157, 404 N.E.2d 144. Here, the trial court indicated that Bartoe did in fact

operate in concert with Jones. Bartoe placed Donahue in a choke hold, while

Jones bludgeoned Boepple with a gun. Based on these facts, we do not find

that Bartoe’s sentence was unreasonable, arbitrary, or unconscionable.

      {¶ 13} Finally, as for Bartoe’s claim that his sentence is disproportionate

to Jones’s sentence, we find that he failed to raise this argument below. This

court has previously held that in order 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. Edwards, Cuyahoga App. No. 89181,
2007-Ohio-6068, ¶11. See, also, State v. Redding, Cuyahoga App. No. 90864,

2008-Ohio-5739.

      {¶ 14} In the instant case, Bartoe stated at the sentencing hearing that

“since the court found me guilty of participation with [Jones], I just ask that

you treat us fairly as the team that you say we acted as and you give us both

the same penalty we deserve.”          This limited dialogue, however, was

insufficient to preserve the issue for appeal.     Jones was sentenced after

Bartoe was sentenced, therefore, Jones’s sentence was outside the record and

the trial court could not use it as a starting point for its analysis. “Without a

starting point for the trial court to begin analysis, the issue has not been

preserved for appeal and we decline to address it.”           State v. Thomas,

Cuyahoga App. No. 94335, 2011-Ohio-183, at ¶24, citing State v. Woods,

Cuyahoga App. No. 82789, 2004-Ohio-2700.

      {¶ 15} Having found that Bartoe’s sentence was neither contrary to law

nor an abuse of discretion, his sole assignment of error is overruled.

      Judgment is affirmed.

      It is ordered that appellee recover from 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.
     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR
