[Cite as State v. Salters, 2012-Ohio-343.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO

        Plaintiff-Appellee

-vs-

TIMOTHY SALTERS

        Defendant-Appellant

JUDGES:
Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.

Case No. CT2011-0027


OPINION


CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. CR2010-0283

JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          January 30, 2012


APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

D. MICHAEL HADDOX                               ROBERT D. ESSEX
PROSECUTING ATTORNEY                            604 East Rich Street
RON WELCH                                       Columbus, Ohio 43215
ASSISTANT PROSECUTOR
27 North Fifth Street
Zanesville, Ohio 43701
Wise, J.

       {¶1}   Defendant-appellant Timothy Salters appeals his sentence on one count

of Rape (victim less than 13) and one count of Gross Sexual Imposition following a plea

of guilty in the Muskingum County Court of Common Pleas.

       {¶2}   Plaintiff-appellee is the State of Ohio.

                         STATEMENT OF THE CASE AND FACTS

       {¶3}   On September 24, 2010, the Zanesville Police Department received a

Call for Service wherein Angela Durbin reported being told by her six year old daughter

that her grandfather had touched her sexually. A subsequent medical examination of

the child revealed a bladder or urinary infection in addition to redness and irritation

around her vaginal area. The child revealed to medical personnel and law enforcement

that, while she pretended to be asleep, her grandfather "licked his finger and put it in"

then carried her upstairs where he "did bad things". She said that he "peed on her belly

and wiped off the pee with her purple shorts" which he threw on the floor. At the

conclusion of an investigation by the Zanesville Police Department, this case was

presented to the October, 2010, Muskingum County Grand Jury.

       {¶4}   Appellant Timothy Salters was indicted by the Muskingum County Grand

Jury on two (2) counts Rape, in violation of R.C. §2907.02(A)(1)(b), both first degree

felonies and two (2) counts of Gross Sexual Imposition, in violation of R.C. §2907.05,

third degree felonies.

       {¶5}   Appellant was arraigned on December 22, 20I0, and pled not guilty to all

charges. Bond was continued as set at $250,000 cash, property, or surety. This case

was set for a Change of Plea hearing on March 2I, 20II. The defendant appeared in
court represented by Counsel who advised the court that his client had "changed his

mind" and wanted to have a few more days to contact a couple other people to make

sure he's doing the best thing possible under the circumstances.

       {¶6}      On March 28, 2011, a Change of Plea hearing was again scheduled. The

defendant appeared with counsel and withdrew his former pleas of not guilty and

entered guilty pleas to Count 2 - Rape (victim less than 13), a felony of the first degree

and Count 3 - Gross Sexual Imposition, a felony of the third degree.

       {¶7}      Pursuant to the plea negotiations, the State recommended an aggregate

prison term of ten (10) years to life, and further agreed to Nolle Counts 1 and 4 at the

time of sentencing.

       {¶8}      The trial court accepted Appellant’s plea and ordered a pre-sentence

investigation.

       {¶9}      On May 23, 2011, the trial court sentenced Appellant to ten (10) years to

life on the Rape charge and five (5) years on the charge of Gross Sexual Imposition, to

run consecutively for an aggregate prison sentence of fifteen (15) years to life.

       {¶10} Defendant-Appellant now appeals, assigning the following error for review:

                                 ASSIGNMENT OF ERROR

       {¶11} “I. PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL

COURT'S SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW,

WAS AN ABUSE OF DISCRETION, AND VIOLATED THE PROPORTIONALITY

REQUIREMENT OF OHIO SENTENCING LAWS.”
                                              I.

       {¶12} In his sole assignment of error, Appellant argues that the trial court erred

in imposing the sentence herein. We disagree.

       {¶13} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124. The first step is to “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.” Kalish at ¶ 4. If this

first step “is satisfied,” the second step requires the trial court's decision be “reviewed

under an abuse-of-discretion standard.” Id.

       {¶14} The relevant sentencing law is now controlled by the Ohio Supreme

Court's decision in State v. Foster, i.e. “ * * * 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.” 109 Ohio St.3d 1, 30, 2006-Ohio-856 at ¶ 100, 845 N.E.2d 470, 498.

       {¶15} In the first step of our analysis, we review whether the sentence is

contrary to law. In the case sub judice, Appellant was sentenced on one count of rape

(victim less than 13), first degree felony, and one count of gross sexual imposition, a

third degree felony.

       {¶16} Upon conviction for a felony of the first degree, the potential sentence that

the trial court can impose is a mandatory prison term of ten (10) years to life. The

potential sentence for a second degree felony is one, two, three, four, or five years in

prison.
       {¶17} Here, as set forth above, Appellant was sentenced to a term of ten years

to life on the F-1 rape charge and five years on the F-3 gross sexual imposition, to run

consecutively for a term of fifteen years to life.

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

complies with applicable rules and sentencing statutes. The sentences were within the

statutory sentencing range.

       {¶19} 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

Appellant regarding post release control.

       {¶20} We therefore find that the sentences are not clearly and convincingly

contrary to law.

       {¶21} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.

Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.

       {¶22} We find the trial court properly considered the purposes and principles of

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 Appellant may

disagree with the weight given to these factors by the trial judge, Appellant's sentence

was within the applicable statutory range for a felonies of the first and third degree and

therefore, we have no basis for concluding that it is contrary to law.
      {¶23} Similarly, the trial court's consecutive sentence cannot be said to be an

abuse of discretion given the circumstances here. See Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219 (an abuse of discretion “implies that the court's attitude is

unreasonable, arbitrary or unconscionable.”).

      {¶24} The Supreme Court of Ohio held in State v. Hodge, 128 Ohio St.3d 1,

2010-Ohio-6320, “[f]or all the foregoing reasons, we hold that the decision of the United

States Supreme Court in Oregon v. Ice [ (2009), 555 U.S. 160, 129 S.Ct. 711, 172

L.Ed.2d 517], 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

State v. 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.”

See, State v. Fry, Delaware App. No. 10CAA090068, 2011-Ohio-2022 at ¶ 16–17.

      {¶25} We further note that the negotiated agreement that Appellant signed on

May 23, 2011, acknowledged that the trial court was not bound by the prosecutor's

recommendation.

      {¶26} The trial court was not a party to the agreement between Appellant and

the State.

      {¶27} “A trial court does not err by imposing a sentence greater than ‘that

forming the inducement for the defendant to plead guilty when the trial court forewarns

the defendant of the applicable penalties, including the possibility of imposing a greater

sentence than that recommended by the prosecutor.’ ” State ex rel Duran v. Kelsey, 106

Ohio St.3d 58, 2006-Ohio-3674; State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-
4772, 796 N.E.2d 1003, ¶ 13, quoting State v. Pettiford (Apr. 22, 2002), Fayette App.

No. CA2001-08-014.

       {¶28} Appellant also asserts that his sentence violates the proportionality

requirement of Ohio’s sentencing laws and that such sentence was an abuse of

discretion.

       {¶29} Appellate courts can find an “abuse of discretion” where the record

establishes that a trial judge refused or failed to consider statutory sentencing factors.

Cincinnati v. Clardy (1978), 57 Ohio App.2d 153, 385 N.E.2d 1342. An “abuse of

discretion” has also been found where a sentence is greatly excessive under traditional

concepts of justice or is manifestly disproportionate to the crime or the defendant.

Woosley v. United States (1973), 478 F.2d 139, 147.

       {¶30} However, upon review, we find that Appellant has failed to provide any

support for this proposition and we find nothing in the record to suggest that this

sentence was disproportionate.

       {¶31} In the case at bar, the court had the benefit of a pre-sentence investigation

report. We also note that we do not know the specific contents of the pre-sentence

investigation report or victim impact statement as Appellant did not make them a part of

the record. In State v. Untied (March 5, 1998), Muskingum App. No. CT97–0018, we

addressed the issue of failure to include the pre-sentence investigation report and

stated:

       {¶32} “Appellate review contemplates that the entire record be presented.

App.R. 9. When portions of the transcript necessary to resolve issues are not part of the

record, we must presume regularity in the trial court proceedings and affirm. Knapp v.
Edwards Laboratories (1980), 61 Ohio St.2d 197, 400 N .E.2d 384. The pre-sentence

investigation report could have been submitted “under seal” for our review.

       {¶33} “Without the cited information and given the trial court (sic) findings on the

record, we cannot say Appellant's sentence was against the manifest weight of the

evidence, or ‘contrary to law’.” Id. at 7. See also, State v. Mills (September 25, 2003),

5th Dist. No. 03–COA–001 at paragraph, 13–15. Appellant has the responsibility of

providing the reviewing court with a record of the facts, testimony, and evidentiary

matters that are necessary to support Appellant's assignments of error. Wozniak v.

Wozniak (1993), 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506; Volodkevich v.

Volodkevich (1989), 48 Ohio App.3d 313, 314, 549 N.E.2d 1237, 1238-1239.

       {¶34} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor.

       {¶35} Appellant’s sole assignment of error is overruled.

       {¶36} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
                                             ___________________________________


                                             ___________________________________


                                             ___________________________________
                                                            JUDGES
          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
TIMOTHY SALTERS                          :
                                         :
       Defendant-Appellant               :         Case No. CT2011-0027




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

       Costs assessed to Appellant.




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                                                            JUDGES
