[Cite as State v. Foster, 2012-Ohio-4199.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.      11CA0114-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RYAN S. FOSTER                                       COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   11-CR-0297

                                  DECISION AND JOURNAL ENTRY

Dated: September 17, 2012



        CARR, Judge.

        {¶1}     Appellant, Ryan Foster, appeals the judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     This case arises out an incident on June 1, 2011, where Ryan Foster entered an

apartment and brutally attacked Michael Davis. On June 8, 2011, the Medina County Grand Jury

indicted Foster on numerous charges stemming from the incident. Christine Dettweiller was also

indicted in relation to the incident. After initially pleading not guilty to all of the charges at

arraignment, Foster subsequently entered a plea of guilty to attempted murder, aggravated

burglary, and tampering with evidence. The trial court sentenced Foster to a ten-year prison term

for attempted murder, a three-year prison term for aggravated burglary, and a three-year prison

term for tampering with evidence. The prison terms for attempted murder and tampering with
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evidence were ordered to run concurrently with each other but consecutively to the prison term

for aggravated robbery, for a total prison sentence of 13 years.

       {¶3}    Foster has timely appealed and raises two assignments of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
       MAXIMUM SENTENCES, IN VIOLATION OF THE SENTENCING
       STATUTES, AS REQUIRED UNDER STATE V. FOSTER OR UNDER
       HOUSE BILL 86.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT TO
       A THIRTEEN YEAR PRISON TERM UNDER SECTION 2929.11 OF THE
       OHIO REVISED CODE, FOR THE CONVICTION OF ATTEMPTED
       MURDER, AGGRAVATED BURGLARY AND TAMPERING WITH
       EVIDENCE, WHEN THE CO-DEFENDANT RECEIVED A LESSER
       SENTENCE FOR SIMILAR CONDUCT AND SIMILAR CRIMES, AS WELL
       AS MORE SERIOUS CRIMES.

       {¶4}    In his first assignment of error, Foster raises several challenges to the trial court’s

decision to impose maximum, consecutive sentences. In his second assignment of error, Foster

argues that his total sentence was disproportionate to the sentence imposed on Christine

Dettweiller, who accompanied Foster to the apartment on the day of the incident. This Court

disagrees.

       {¶5}    The Ohio Supreme Court held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-

856, paragraph seven of the syllabus, 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 give their

reasons for imposing maximum, consecutive, or more than the minimum sentences.” Trial

courts must still consider the statutes applicable to felony cases, including R.C. 2929.11,

regarding the purposes of sentencing, and R.C. 2929.12, delineating factors relating to the
                                                 3


seriousness of the offense and the offender’s likelihood of recidivism. State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, ¶ 38.

        {¶6}   After Foster, the Ohio Supreme Court, in a plurality opinion, developed a two-

step analysis for reviewing sentences. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. The

Kalish court held:

        First, [appellate courts] 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. at ¶ 4.

        {¶7}   The trial court indicated in its judgment entry that it considered the factors set

forth in R.C. 2929.11 and R.C. 2929.12 prior to imposing sentence. At the beginning of the

hearing, the trial court allowed ample time for defense counsel, Foster, the victim, and the State

to make statements on the record.     While Foster argues in his brief that the trial court did not

make findings in support of its decision to impose maximum, consecutive sentences, the

Supreme Court of Ohio has held that it is not required to do so. Foster, 109 Ohio St.3d at

paragraph seven of the syllabus. Foster pleaded guilty to attempted murder and aggravated

burglary, both felonies of the first degree, as well as tampering with evidence, a felony of the

third degree. The sentences imposed by the trial court on each respective count fell within the

statutory ranges set forth in R.C. 2929.14(A)(1), which governs felonies of the first degree, and
                                                  4


R.C. 2929.14(A)(3)(b), which governs with felonies of the third degree. Thus, Foster cannot

prevail on his claim that his sentences were clearly and convincingly contrary to law.1

       {¶8}    We further note that the Supreme Court has 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 even give their reasons for imposing maximum, consecutive, or more than

minimum sentences.” State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, ¶ 11, quoting Foster

at paragraph seven of the syllabus. “At the sentencing hearing, the court, before imposing

sentence, shall consider the record, any information presented at the hearing by any person

pursuant to division (A) of this section, and, if one was prepared, the presentence investigation

report * * *.” State v. Bennett, 9th Dist. No. 26241, 2012-Ohio-3664, ¶ 23, quoting R.C.

2929.19(B)(1). At the close of Foster’s plea hearing, the trial court indicated that it set the matter

for presentence investigation. At the beginning of the sentencing hearing, the trial judge stated

on the record that he had read the presentence investigation report. However, while it is apparent

from the transcript of the sentencing hearing that a presentence investigation report was prepared




1
  We note that the language in the trial court’s sentencing entry varied from what was stated at
the sentencing hearing in regard to which sentence would run consecutively to the prison
sentence for attempted murder. Foster was given a three-year prison term for both aggravated
burglary and tampering with evidence. The sentencing entry indicated that it was the aggravated
burglary prison term, instead of the tampering with evidence prison term, that was ordered to run
consecutively to the attempted murder sentence, while the tampering sentence was ordered to run
concurrently. It is well-settled that “a trial court speaks only through its journal entries.” State v.
Leason, 9th Dist. No. 25566, 2011-Ohio-6591, ¶ 8. Here, the terms of Foster’s sentence were set
forth in the judgment entry issued by the trial court on November 17, 2011. See State v. Carlisle,
131 Ohio St.3d 127, 2011-Ohio-6553, ¶ 11. Moreover, in this particular case, the prison
sentence imposed by the trial court with respect to each offense mirrored what was stated on the
record at the sentencing hearing. The total length of the prison sentence in the sentencing entry
also mirrored what was stated on the record at the sentencing hearing. Thus, to the extent that
the trial court erred by transposing the offenses at the sentencing hearing, the error was harmless.
                                                 5


in this case, it does not appear in the record before this Court. If a presentence investigation

report is prepared, “there is a presumption that the trial court utilized it in imposing sentence.”

Bennett at ¶ 24, citing State v. Cox, 9th Dist. No. 19773, 2000 WL 372317 (Apr. 12, 2000).

Moreover, this Court has repeatedly held that “it is the duty of the appellant to ensure that the

record on appeal is complete.” State v. Unik, 9th Dist. No. 11CA009996, 2012-Ohio-307, ¶ 7,

quoting State v. Daniels, 9th Dist. No. 08CA009488, 2009-Ohio-1712, ¶ 22. Without the

presentence investigation report, this Court is unable to properly review the trial court’s

sentencing decision, so we must presume the validity of the trial court proceedings. Bennett at ¶

24, citing Cuyahoga Falls v. James, 9th Dist. No. 21119, 2003-Ohio-531, ¶ 9.

       {¶9}    It follows that Foster’s first and second assignments of error are overruled.

                                                III.

       {¶10} Foster’s two assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                6


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



WHITMORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

PAUL M. GRANT, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and WILLIAM L. HANEK, Assistant Prosecuting
Attorney, for Appellee.
