[Cite as State v. Smith, 2011-Ohio-2037.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                     Nos. 95396 and 95397




                                        STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                       CHAKA S. SMITH

                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-535288 and CR-525115

        BEFORE: Kilbane, A.J., S. Gallagher, J., and E. Gallagher, J.
       RELEASED AND JOURNALIZED: April 28, 2011

ATTORNEY FOR APPELLANT

Kelly A. Gallagher
P.O. Box 306
Avon Lake, Ohio 44012

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
John Hanley
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} In these consolidated appeals, defendant-appellant, Chaka Smith, challenges the

concurrent five-year prison terms imposed in Case Nos. CR-525115 and CR-535288.       For the

reasons set forth below, we affirm.

       {¶ 2} With regard to Case No. CR-525115, the record indicates that on June 16, 2009,

defendant was indicted on two counts of robbery. On July 29, 2009, defendant pled guilty to

robbery as charged in Count 2, and Count 1 was nolled.   At this time, the trial court advised
defendant as follows:

       “THE COURT: This charge is a felony of the third degree, and your
       possible prison sentence is anywhere from one to five years * * * in prison.
       Do you understand?

       ***

       I am going to sentence you to two years of community control. During this
       time, you will be under the supervision of the probation department. * * *
       Other than that, I am not going to load up a bunch of conditions. Here’s the
       main condition. You violate once, you will be sentenced to five years in
       prison. So if you don’t report, if you test positive for anything from
       marijuana on up to cocaine or heroin or anything that you particularly enjoy, I
       have got to impose a prison term on that. If you want, I could give you one
       year today. Do you want to do that and get it over with?

       THE DEFENDANT:          No.

       THE COURT:       You have two months of credit.         It will be a 10-month
       treatment.

       ***

       THE COURT:       If you violate, you have got five years. * * *.”

       {¶ 3} Thereafter, on the same day, the trial court sentenced defendant to two years of

community control sanctions.

       {¶ 4} On January 25, 2010, the trial court scheduled a probation violation hearing at

the request of the Cuyahoga County Probation Department, to determine whether defendant

violated her community control sanctions.      Defendant did not appear at the scheduled

February 4, 2010 hearing.
       {¶ 5} On March 12, 2010, defendant was involved in an incident with her stepfather,

Jerry Henderson.     On March 17, 2010, defendant made her initial appearance in Case No.

CR-535288, which arose in connection with this new matter.

       {¶ 6} On March 19, 2010, the trial court heard the probation violation matter from

Case No. CR-525115.       The court subsequently determined that defendant violated the terms

of her community control sanctions because she tested positive for cocaine use on December

16, 2009, and failed to attend the hearing on February 4, 2010.         The trial court did not

determine the sanction to be imposed, however, and deferred that issue pending the “resolution

of Ohio v. Chaka Smith, Case Number CR 535288.”

       {¶ 7} On March 25, 2010, defendant was indicted in Case No. CR-535288 on two

counts of attempted murder, one count of felonious assault, and one count of domestic

violence with a furthermore clause alleging that defendant had previously been convicted of

aggravated assault, a fourth degree felony.    The State subsequently amended the domestic

violence charge to delete the furthermore clause, a misdemeanor.        Thereafter, on May 19,

2010, defendant pled guilty to felonious assault and misdemeanor domestic violence, and the

remaining charges were dismissed.

       {¶ 8} On June 15, 2010, the trial court held an additional hearing on the probation

violation issue.   At this time, defendant waived the issue of probable cause.    The probation

officer reported that defendant tested positive for cocaine use, failed to appear for a probation
violation hearing on February 4, 2010, and had entered guilty pleas to felonious assault and

misdemeanor domestic violence on May 19, 2010.

        {¶ 9} At this time, defendant’s counsel spoke and indicated that the offenses stemmed

from defendant’s inability to control her emotions.       Her counsel explained that she is now

dealing with her substance abuse and anger issues, and her experience in treatment has helped

her to get her life in order.   Defendant’s counsel explained that defendant had the opportunity

to go into transitional housing, but her mother insisted that she was needed at home to help

care for her younger siblings.     Defendant returned home, where events occurred leading to

new charges being field against her.          Defendant’s counsel additionally explained that

defendant did stab her stepfather in the shoulder during an argument.         His injuries were

serious but not life threatening, and he has indicated that he suffers no long-term damage.

Defendant then told the court that she had received inpatient treatment for only nine days, and

she wished that it had been longer since it helped her.

        {¶ 10} The court imposed sentence in both matters and stated:

        “[H]aving considered Revised Code 2929.11 and 12 in both cases, I believe a
        prison term is appropriate. In case no. 535288 I will order, on count 3, you
        are sentenced to the Ohio Reformatory for Women for five years, and count 4
        you are sentenced to time served. That was a misdemeanor.

        In 525115, community control will be terminated and you will be sentenced to
        the Ohio Reformatory for Women for five years. Both of these sentences
        include three years mandatory post release control called PRC.

        ***
       These sentences will run concurrent.         You are talking a total five year
       sentence.”

       {¶ 11} Defendant now appeals and asserts the following assignment of error as to both

sentences:

       “The appellant’s sentence was an abuse of discretion.”

       {¶ 12} Within this assignment of error, defendant asserts that the trial court abused its

discretion in imposing a five-year sentence in this matter.

       {¶ 13} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio

Supreme Court held that trial courts were no longer required to make findings when “imposing

maximum, consecutive, or more than the minimum sentences.”             The Foster court then

severed these provisions from the Ohio Revised Code and held that “[t]rial courts have full

discretion to impose a prison sentence within the statutory range and are no longer required to

make findings or their reasons for imposing maximum, consecutive, or more than the

minimum sentences.”     Id., at paragraph seven of the syllabus.

       {¶ 14} In Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, the

United States Supreme Court upheld a statute that required judicial fact finding when imposing

consecutive sentences, and concluded that the Sixth Amendment to the United States

Constitution is not violated when sentencing judges, rather than juries, make the findings of

facts necessary for the imposition of consecutive, rather than concurrent, sentences for
multiple offenses.   Id. at 716-720.

       {¶ 15} Recently, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d

768, the Ohio Supreme Court rejected the argument that the decision in Ice automatically and

retroactively reinstates the consecutive-sentencing statutes that were excised in Foster.   The

court stated:


       “[T]he decision of the United States Supreme Court in [Ice] does 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].
       Because the statutory provisions are not revived, trial court judges are not
       obligated to engage in judicial fact-finding prior to imposing consecutive
       sentences unless the General Assembly enacts new legislation requiring that
       findings be made.

       The trial court in this case did not err in imposing consecutive sentences

       without applying R.C. 2929.14(E)(4) and 2929.41(A)[.]” Hodge at ¶39, 40.

       {¶ 16} The Hodge court held that trial court judges are not obligated to engage in

judicial fact-finding prior to imposing consecutive sentences unless the General Assembly

enacts new legislation requiring that findings be made.    Id.; Accord State v. Reed, Cuyahoga

App. No. 91767, 2009-Ohio-2264; State v. Lockhart, Cuyahoga App. No. 95093,

2011-Ohio-936.

       {¶ 17} Therefore, subsequent to Foster, appellate courts must apply a two-step

approach when reviewing a defendant’s sentence.           State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124.         “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.”

Id.




       {¶ 18} The court explained that as part of its analysis of whether the sentence is

“clearly and convincingly contrary to law,” an appellate court must ensure that the trial court

considered the purposes and principles of R.C. 2929.11 and the factors listed in R.C. 2929.12.

       {¶ 19} R.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[,] * * * 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.”

       {¶ 20} The goal of felony sentencing pursuant to R.C. 2929.11(B) is to achieve

“consistency” not “uniformity.”        State v. Klepatzki, Cuyahoga App. No. 81676,

2003-Ohio-1529.    The trial court is not required to make express findings that the sentence is

consistent with other similarly situated offenders.    State v. Cadiou, Cuyahoga App. No.

91696, 2009-Ohio-1789.     Furthermore, an appellate court is not required to review the record

to determine whether the trial court “imposed a sentence that is lockstep with others, but
whether the sentence is so unusual as to be outside the mainstream of local judicial practice.”

State v. Dawson, Cuyahoga App. No. 86417, 2006-Ohio-1083.           The 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. Woods, Cuyahoga

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

        {¶ 21} Under R.C. 2929.12(A), “a court that imposes a sentence under this chapter

upon an offender for a felony has discretion to determine the most effective way to comply

with the purposes and principles of sentencing set forth in section 2929.11 of the Revised

Code.    In exercising that discretion, the court shall consider the factors set forth in divisions

(B) and (C) of this section relating to the seriousness of the conduct and the factors provided

in divisions (D) and (E) of this section relating to the likelihood of the offender’s recidivism

and, in addition, may consider any other factors that are relevant to achieving those purposes

and principles of sentencing.”

        {¶ 22} In Kalish, the Supreme Court also made clear that even after Foster, “where the

trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is

presumed that the trial court gave proper consideration to those statutes.”     Id. at fn. 4, citing

State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.

        {¶ 23} Applying all of the foregoing, we find that the trial court did not err in

sentencing appellant.   On July 29, 2009, at the time that defendant pled guilty to the charge
of robbery, and prior to the occurrence of the second matter involving the stabbing of

defendant’s stepfather, the court informed defendant that, potentially, she faced from one to

five years of imprisonment on that charge.    The court specifically apprised her that she would

receive a five-year sentence for the robbery charge if she violated the terms of community

control.

       {¶ 24} Later, after defendant pled guilty to the additional charges of felonious assault

and misdemeanor domestic violence, the court imposed a single, concurrent five-year term for

both the robbery conviction and the felonious assault and domestic violence convictions.

That is, the court imposed the five-year term announced at the July 29, 2009 hearing in Case

No. CR-525115, despite the fact that defendant had also, at the time of the sentencing,

admitted to felonious assault and domestic violence in Case No. CR-535288.          Therefore, the

court imposed no additional penalty despite the fact that defendant had committed the

additional serious offenses.

       {¶ 25} Moreover, the sentence was within the statutory range of penalties for robbery

in violation of R.C. 2911.02(A)(3), i.e., one, two, three, four, or five years in prison.     R.C.

2929.14(A)(3).     The sentence was also within the range of penalties for felonious assault, a

felony of the second degree, R.C. 2903.11(A)(2), i.e., two, three, four, five, six, seven, or eight

years in prison.   R.C. 2929.14(A)(2).

       {¶ 26} Further, the trial court stated that it had considered the purposes and goals of
sentencing set forth in R.C. 2929.11.    There was no evidence that the sentence is so unusual

as to be outside the mainstream of local judicial practice.

       {¶ 27} In addition, the record indicates that the trial court considered the factors

outlined in R.C. 2929.12, including the seriousness of the conduct, the likelihood of recidivism

in relation to defendant’s substance abuse and emotional issues, and also considered her

limited inpatient treatment as well as her housing issues.

       {¶ 28} In accordance with the foregoing, the court complied with the applicable

statutes in imposing the sentence, and it is not clearly and convincingly contrary to law.     We

find no abuse of discretion.    Accordingly, appellant’s assignments of error are overruled.

       Judgment 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

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
