[Cite as State v. Taylor, 2012-Ohio-5733.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 98129




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   PHILLIP TAYLOR
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-549289

        BEFORE:            Sweeney, J., Stewart, P.J., and Celebrezze, J.
       RELEASED AND JOURNALIZED:                         December 6, 2012

ATTORNEY           FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113-1901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adrienne E. Linnick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

       {¶1} Defendant-appellant Phillip Taylor (“defendant”) appeals the court’s sentencing

him to 11 months in prison for his conviction of receiving stolen property.    After reviewing

the facts of the case and pertinent law, we affirm.

       {¶2} On May 19, 2011, defendant pled guilty to receiving stolen property in violation

of R.C. 2913.51(A), a fifth degree felony.    The court released defendant on a personal bond

under the condition that he “cooperate with the presentence report” and return to court for

sentencing on June 20, 2011.      Defendant failed to appear at his June 20, 2011 sentencing

hearing.   On July 26, 2011, the court issued a journal entry stating the following: “On a prior
day, defendant Phillip Taylor failed to appear, this court revoked said defendant’s personal

bond and defendant remains in default of the obligation of said bond.”

       {¶3} Defendant was taken into custody on an unrelated matter in October 2011, and a

new sentencing hearing was set for March 14, 2012, regarding the case at hand.              At this

hearing the court sentenced defendant to 11 months in prison.

       {¶4} Defendant appeals and raises one assignment of error for our review.

                                               I.

       The trial court abused its discretion by imposing a prison term for a felony of
       the fifth degree, contrary to the purposes and principles of the felony sentencing
       guidelines and H.B. 86.
                               1




       {¶5} In State v. Lebron, 8th Dist. No. 97773, 2012-Ohio-4156, ¶ 5, this court set

forth the standard of review for felony sentencing:

       An appellate court must conduct a meaningful review of the trial court’s
       sentencing decision. * * * Specifically, R.C. 2953.08(G)(2) provides that our
       review of [felony] sentences is not an abuse of discretion. An appellate court
       must “review the record, including the findings underlying the sentence or
       modification given by the sentencing court.” Id. If an appellate court clearly
       and convincingly finds either that (1) “the record does not support the
       sentencing court’s findings under [R.C. 2929.13(B)]” or (2) “the sentence is
       otherwise contrary to law,” then “the appellate court may increase, reduce, or
       otherwise modify a sentence * * * or may vacate the sentence and remand the
       matter to the sentencing court for resentencing.”


        Defendant committed the offense at issue on April 14, 2011, which is prior
        1

to when H.B. 86 took effect on September 30, 2011. Therefore, H.B. 86 does not
apply to the instant case, and our review will be conducted using prior versions of
the                              appropriate                              statutes.
Id.

       {¶6} Pursuant to R.C. 2929.14(A)(5), the prison term for a fifth-degree felony is six

to 12 months.   Under the version of R.C. 2929.13 that was in effect at the time defendant

committed the offense, it was within the court’s discretion whether to sentence defendant to

prison or community control sanctions.

       (B) (1) Except as provided in division (B)(2), (E), (F), or (G) of this section, in
       sentencing an offender for a felony of the fourth or fifth degree, the sentencing
       court shall determine whether any of the following apply:

        (a) In committing the offense, the offender caused physical harm to a person.

       (b) In committing the offense, the offender attempted to cause or made an actual
       threat of physical harm to a person with a deadly weapon.

        (c) In committing the offense, the offender attempted to cause or made an
       actual threat of physical harm to a person, and the offender previously was
       convicted of an offense that caused physical harm to a person.

         (d) The offender held a public office or position of trust and the offense
       related to that office or position; the offender’s position obliged the offender to
       prevent the offense or to bring those committing it to justice; or the offender’s
       professional reputation or position facilitated the offense or was likely to
       influence the future conduct of others.

       (e) The offender committed the offense for hire or as part of an organized
       criminal activity.

       (f) The offense is a sex offense that is a fourth or fifth degree felony violation
       of section 2907.03, 2907.04, 2907.05, 2907.22, 2907.31, 2907.321 [2907.32.1],
       2907.322 [2907.32.2], 2907.323 [2907.32.3], or 2907.34 of the Revised Code.
      (g) The offender at the time of the offense was serving, or the offender
      previously had served, a prison term.

      (h) The offender committed the offense while under a community control
      sanction, while on probation, or while released from custody on a bond or
      personal recognizance.

      (i) The offender committed the offense while in possession of a firearm.

      (2) (a) If the court makes a finding described in division (B)(1)(a), (b), (c), (d),
      (e), (f), (g), (h), or (i) of this section and if the court, after considering the
      factors set forth in section 2929.12 of the Revised Code, finds that a prison term
      is consistent with the purposes and principles of sentencing set forth in section
      2929.11 of the Revised Code and finds that the offender is not amenable to an
      available community control sanction, the court shall impose a prison term upon
      the offender.

      (b) Except as provided in division (E), (F), or (G) of this section, if the court

      does not make a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g),

      (h), or (i) of this section and if the court, after considering the factors set forth

      in section 2929.12 of the Revised Code, finds that a community control sanction

      or combination of community control sanctions is consistent with the purposes

      and principles of sentencing set forth in section 2929.11 of the Revised Code,

      the court shall impose a community control sanction or combination of

      community control sanctions upon the offender.

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

controlling Ohio Supreme Court case regarding defendant’s sentence.          Foster at ¶ 69, held
the following regarding prison rather than community control sanctions for lower level

felonies:

       If the appropriate findings [under R.C. 2929.13(B)(1)] are

                            made, the court has no discretion

                            and must impose a prison term;

                            however, the statute does not

                            prevent a court from imposing a

                            prison term without these findings.

                            There is no presumption in favor of

                            community control, in other words.

                            If no findings are made under R.C.

                            2929.13(B)(1)(a) through (i), the

                            court     must     find    that    a

                            community-control sanction meets

                            the principles of sentencing under

                            R.C. 2929.11 before it must impose

                            community control.     Thus, a judge

                            who does not make one of the

                            (B)(1) findings and does not find
                                 that   community        control    is      a

                                 sufficient   sanction      could        still

                                 impose a prison term.

          {¶8}     In the instant case, the court found that “prison is consistent with the purpose of

R.C. 2929.11” after having “considered the pertinent sentencing statutes in the State of Ohio,”

defendant’s presentence investigation report, and his failure to appear at the original

sentencing hearing.       The court then sentenced defendant to 11 months in prison, which is

within the statutory range.        Additionally, defendant’s failure to appear at his sentencing

hearing weighs in favor of finding that he would not be amenable to community control

sanctions.       Accordingly, defendant’s sentence is not contrary to law and it is supported by the

record.     See State v. Duncan, 8th Dist. No. 87518, 2006-Ohio-5024, ¶ 12 (prison term for

fourth degree felony was permitted without R.C. 2929.13(B)(1) findings, because “the court

specifically found that defendant was not amenable to community control sanctions”).

          {¶9} Defendant’s sole assignment of error is overruled.

          {¶10} Judgment affirmed.

          It is ordered that appellee recover of appellant its 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. Case remanded to the trial court for execution of sentence.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
