[Cite as State v. Price, 2017-Ohio-1245.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Craig R. Baldwin, J.
                          Plaintiff-Appellee    :       Hon. Earle E. Wise, Jr., J.
                                                :
-vs-                                            :
                                                :       Case No. 16-COA-039
MATTHEW N. PRICE                                :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Ashland County
                                                    Court of Common Pleas, Case No.15-CRI-
                                                    196



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             April 3, 2017



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTOPHER BALLARD                                 KENNETH LEWIS
ASHLAND COUNTY PROSECUTOR                           1220 West 6th Street, Ste. 502
CHRISTOPHER TUNNELL                                 Cleveland, OH 44113
ASSISTANT PROSECUTOR
110 Cottage Street, 3rd Floor
Ashland, OH 44805
[Cite as State v. Price, 2017-Ohio-1245.]


Gwin, P.J.

        {¶1}     Appellant Matthew N. Price [“Price”] appeals his convictions and sentences

after a negotiated guilty plea in the Ashland County Court of Common Pleas to four counts

of child endangering.

                                             Facts and Procedural History

        {¶2}     On July 22, 2016, Price entered pleas of guilty to four counts of Endangering

Children, in violation of R.C. 2919.22(B)(1) — (B)(4), three of the counts were felonies of

the second degree, and one count was a felony of the third degree.

        {¶3}     As part of the plea agreement, the state agreed to leave sentencing to the

discretion of the trial court.              The parties agreed that the counts would merge for

sentencing purposes.

        {¶4}     Sentencing was held on September 9, 2016, with the state electing to

proceed on count four, Endangering Children in violation of R.C. 2919.22(B)(2), a felony

of the second degree. The trial court sentenced Price to five years of imprisonment and

a $5,000.00 fine, minus 315 days of local jail-credit and any further time pending his

delivery to the Ohio Department of Rehabilitation and Corrections for placement.

                                                 Assignment of Error

        {¶5}     Price raises one assignment of error,

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

SENTENCING THE APPELLANT TOO HARSHLY”.

                                                  Law and Analysis

        {¶7}     In his sole assignment of error, Price argues that the sentence imposed by

the trial court is contrary to law under R.C. 2953.08(A)(4) because the court did not
Ashland County, Case No. 16-COA-039                                                            3


properly weigh the sentencing factors.

       {¶8}   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.

       {¶9}   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

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

sentence is otherwise contrary to law.

       {¶10} 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.

       R.C. 2929.13(B) and R.C. 2929.13(D).

       {¶11} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.
Ashland County, Case No. 16-COA-039                                                     4


Price plead guilty to a felony of the second degree. Thus, R.C. 2929.13(B) is not

applicable to this case.

       {¶12} R.C. 2929.13(D) (1) provides that when sentencing for a first or second-

degree felony “it is presumed that a prison sentence is necessary in order to comply with

the purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides

that “[n]otwithstanding the presumption * * * the sentencing court may impose a

community control sanction,” (emphasis added), but only if the sentencing court finds that

a community control sanction would (1) adequately punish the offender and protect the

public from future crime, and (2) not demean the seriousness of the offense because the

statutory less serious sentencing factors outweigh the more serious factors.

       {¶13} Thus, in order to impose a community control sanction in the instant case,

the trial court would have been required to find that such a sanction would adequately

punish Price, that Price was less likely to re-offend, and that such a sanction would not

demean the seriousness of the offense because Price’s conduct was less serious than

conduct normally constituting the offense. State v. Morin, 5th Dist. Fairfield No. 2008–

CA–10, 2008-Ohio-6707, 2008 WL 5265857, ¶ 27.

       {¶14} In the case at bar, the trial court stated,

              Considering all of the information that the Court has received on

       behalf of the victim as well as the offender and the PSI Report information

       which indicates a low ORAS Score in terms of risk of reoffending, I don't

       know how you gage that in this type of a case, but in consideration of all of

       those factors and the seriousness of the offense in this matter, and its

       impact on the victim and the position that you have as a parent of that child
Ashland County, Case No. 16-COA-039                                                       5


       to provide a protected environment and to shelter that child from that type

       of danger, and I am finding that a prison sentence in the low half of the

       sentencing range for the Count 4 offense would demean the seriousness of

       the offense. I don't necessarily agree with the State that 6 to 8 is

       appropriate, but think that the higher half is, and just for the Record it was

       mentioned at the Plea Agreement stipulated by the parties that the Court is

       not imposing a Sentence for Counts 1, 2 or 3 in this case, but those offenses

       merging with Count 4 for purposes of Sentencing today and having been

       previously stipulated that the State elected to proceed with Sentencing on

       Count 4.

Sentencing Transcript, Sept. 9, 2016 at 20-21. Clearly, the trial court found that a shorter

sentence would demean the seriousness of the offense and the conduct was more

seriousness due to Price’s parental position.

       R.C. 2929.14.

       {¶15} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Price was not given an

additional prison sentence.

       {¶16} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. The

trial court merged the four counts of child endangering prior to sentencing in the case at

bar.

       R.C. 2929.20.

       {¶17} R.C. 2929.20 (I) is inapplicable, as Price was not applying to the court for

judicial release.
Ashland County, Case No. 16-COA-039                                                      6


      R.C. 2929.11 and R.C. 2929.12.

      {¶18} The Marcum court further noted,

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

      2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

      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 1231 (emphasis added).

      {¶19} 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).

      {¶20} 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. The statute provides a

non-exhaustive list of factors a trial court must consider when determining the
Ashland County, Case No. 16-COA-039                                                       7


seriousness of the offense and the likelihood that the offender will commit future offenses.

       {¶21} 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.

       {¶22} “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.

       {¶23} 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.

       {¶24} 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
Ashland County, Case No. 16-COA-039                                                      8

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).

       {¶25} In the case at bar, the trial court stated,

       THE COURT:             Mr. Price, when imposing sentence the Court must

       comply with the purposes and principles of Ohio Sentencing Statues and

       the overriding purposes are to punishes [sic.] the offender and protect the

       public from future crime by the offender and others using the minimum

       sanctions that the Court determines accomplishes those purposes without

       imposing an unnecessary burden on state or local government resources.

       The Court must also consider the need for incapacitation, deterrence,

       rehabilitation, restitution.

              Any sentence imposed by the Court should also be commensurate

       with and not demeaning to the seriousness of the offender's conduct and its

       impact on any victim.

              And it should also be consistent with sentences for similar crimes by
Ashland County, Case No. 16-COA-039                                                        9


         similar offenders. The Court cannot sentence based on an Offender's race

         ethnicity, gender or religion.

Sentencing Transcript, Sept. 9, 2016 at 20. Accordingly, the trial court had 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. The

record contains the statements of counsel, Price’s allocution and Price’s witnesses in his

support, the interview of the child victim, the child’s biological mother and the pre-

sentence investigation report.

         {¶26} Price was sentenced for a felony of the second degree. The sentencing

range for a second-degree felony is two, three, four, five, six, seven, or eight years. R.C.

2929.14(A)(2). Price was given a sentence of five years, which is within the statutory

range.

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

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 Price regarding post release control. Upon a thorough review, we find the record

clearly and convincing supports the sentence imposed by the trial court.

         {¶28} We find the trial court properly considered the purposes and principles of
Ashland County, Case No. 16-COA-039                                                   10


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 Price may

disagree with the weight given to these factors by the trial judge, Price’s sentence was

within the applicable statutory range for a felony of the second degree and therefore, we

have no basis for concluding that it is contrary to law.

       {¶29} Price’s sole assignment of error is overruled.

       {¶30} The judgment of the Ashland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
