[Cite as State v. Foster, 2013-Ohio-4515.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                        :    Appellate Case Nos. 25588
                                                      :    Appellate Case Nos. 25589
          Plaintiff-Appellee                          :    Appellate Case Nos. 25590
                                                      :
 v.                                                   :    Trial Court Case Nos. 12-CR-2087/1
                                                      :    Trial Court Case Nos. 12-CR-1199
 ALLEN J. FOSTER                                      :    Trial Court Case Nos. 12-CR-1524/1
                                                      :    (Criminal Appeal from
          Defendant-Appellant                :        (Common Pleas Court)
                                                      :
                                                 ...........
                                             OPINION
                            Rendered on the 11th day of October, 2013.
                                                 ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorneys for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. #0084707, Flanagan, Lieberman, Hoffman & Swaim,
15 West Fourth Street, Suite 100, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                                          .............

FAIN, P.J.

        {¶ 1}     In these three consolidated appeals, defendant-appellant Allen J. Foster

appeals from his conviction and sentence, following a guilty plea, on two counts of Burglary,

in violation of R.C. 2911.12(A)(3), felonies of the third degree, one count of Breaking and
                                                                                                 2


Entering, in violation of R.C. 2913.11(A), a felony of the fifth degree, and one count of

Receiving Stolen Property, in violation of R.C. 2913.51(A), a felony of the fifth degree.

         {¶ 2}   Foster’s assigned counsel has filed a brief under the authority of Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he has not

found any potential assignments of error having arguable merit. By entry filed herein on June

26, 2013, we have afforded Foster the opportunity to file his own, pro se brief. He has not

done so.

         {¶ 3}   After independently reviewing the record, as required by Anders, we have not

found any potential assignments of error having arguable merit. Accordingly, the judgment of

the trial court is Affirmed.



                                       I. The Offenses

         {¶ 4}   On two occasions between March 11 and March 14, 2012, Foster broke into

the home of Kenneth Donohoo and stole various items, including a flat-screen television, a

pistol, and several family heirlooms. Donohoo’s listing of the items stolen, with values, came

to a total value of $8,148.86. Donohoo said that he believed there were other items missing,

but he could not recall what they were. This formed the basis for the two Burglary charges

and convictions in trial court Case No. 2012 CR 2087, on appeal to this court in Case No.

25588.

         {¶ 5}   On or about March 10, 2012, Foster sold to First Street Recycling as scrap

commercial grade extension cords that had been stolen from the City of Dayton.              Dayton

employee Bill Landis quoted the cost to replace these cords as $2,700. This formed the basis for

the Receiving Stolen Property charge and conviction in trial court Case No. 2012 CR 1199, on
                                                                                                    3


appeal to this court in Case No. 25589.

       {¶ 6}    On or about May 17, 2012, Foster hid inside a Walgreens store and, after the

store closed and the employees left, exited the store with boxes of cologne, cartons of cigarettes,

and packs of energy drink. The store estimated the value of the stolen goods to be $300. The

investigating police officer computed the value of the stolen cologne to be $1,503.72, and the

value of the cartons of cigarettes and packs of energy drink to be $1,913.67. This formed the

basis for the Breaking and Entering charge and conviction in trial court Case No. 2012 CR 1524,

on appeal to this court in Case No. 25590.



                                 II. The Course of Proceedings

       {¶ 7}    Foster entered into a plea agreement whereby he pled guilty to all four charges

and agreed to restitution in all four cases, and the State agreed that his aggregate sentence for all

four offenses would be capped at two years.           Without the latter agreement, Foster could

potentially have been sentenced to eight years in prison: one year for Breaking and Entering,

one year for Receiving Stolen Property, and three years for each of the Burglary offenses.

       {¶ 8}    At the plea hearing, the trial court told Foster:

               The final decision as to whether you get community control sanctions or

       go to prison is mine. If the Court decides that I can’t accept or live with the plea

       agreement that the State worked out with your attorney, what I will allow you to

       do is withdraw your plea of not guilty [sic] and we can set these matters for trial.

       {¶ 9}    Although the trial court apparently mis-spoke, or the transcriptionist may have

erred, it is clear enough from the context that the trial court was telling Foster that he would not

be bound by his plea if the trial court desired to impose a prison sentence longer than the
                                                                                                  4


two-year cap to which the State had agreed.

       {¶ 10} A pre-sentence investigation report was ordered. Foster was sentenced to one

year for each of the Burglary offenses, to be served concurrently, and to six months on each of the

other two offenses, to be served consecutively with each other and with the Burglary sentences.

The total prison sentence was therefore two years, the maximum sentence permitted by the cap

agreement.

       {¶ 11} Foster was ordered to pay restitution to Donohoo in the amount of $8,148.86, to

the City of Dayton in the amount of $2,700, and to Walgreens in the amount of $300.

       {¶ 12} At the sentencing hearing the trial court declared:

               The Court’s going to disapprove intensive program prison Schott

       incarceration [sic, presumably shock incarceration] transitional control.

       {¶ 13} If the trial court was referring at the sentencing hearing to transitional control

under R.C. 2967.26, we have held that it is premature to disapprove of transitional control when

sentencing a defendant. State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, 944 N.E.2d

258, ¶ 44 (2d Dist.). But in the case before us, the trial court did not, in its sentencing entry,

disapprove of transitional control. It did disapprove Foster for shock incarceration and for

intensive program prison.

       {¶ 14} From his conviction and sentence, Foster appeals.



        III. There Are No Potential Assignments of Error Having Arguable Merit

       {¶ 15} In his brief, assigned counsel discusses two potential assignments of error, but

finds that neither has any merit. The first of these is that Foster’s plea was not knowing and

intelligent. And the first issue raised concerns the trial court’s statement, at the plea hearing:
                                                                                                   5


“So your attorneys have worked out an agreement in which you’re getting minimal exposure to

prison, if at all.” Counsel suggests that the two-year cap on the prison sentence is not minimal,

because the minimum possible prison sentence would have been nine months, the minimum

sentence for each of the Burglary offenses, assuming that all four prison sentences were ordered

to be served concurrently.

       {¶ 16} We agree with Foster’s counsel that this issue is without arguable merit. While

the trial court’s statement quoted above may have been technically incorrect, the trial court most

likely meant only that the two-year cap on the sentence to which the State had agreed meant that

the prison sentence imposed, if any, would be on the shorter side of the range from nine months

to eight years that could possibly be imposed for the four offenses. Foster was represented by

experienced trial counsel. If the trial court’s statement actually misled him into believing that he

had got the best possible plea bargain as to the prison sentence, short of an agreement that

community control sanctions would be imposed, and if that mistaken belief was material to his

decision to accept the plea bargain, he could have moved to withdraw his plea. Nothing in this

record suggests that Foster mistakenly believed that a two-year prison sentence was the minimum

prison sentence that could be imposed.

       {¶ 17} Appellate counsel next refers to the following statement by the trial court at the

plea hearing:

                Now those sentences could run, if you didn’t have a plea agreement, they

       could run together which is called concurrent or they could run one right after the

       other consecutive. You’ve worked out a plea agreement, so we really don’t have

       to go over that.

       {¶ 18} Counsel suggests that this statement raises the issue that the trial court did not advise
                                                                                                  6


Foster of the maximum sentence that could be imposed, apart from the agreed cap. But right after the

above-quoted statement, in discussing the consequences of Foster’s violating any community control

sanctions that might be imposed, the trial court told him:

                You violate community control sanctions, you could be sent to prison for

       the maximum time of your felony which would be in this case – which could be

       eight years. And the maximum would be eight years based upon the fact that if I

       ran them one right after the other, the maximum amount of time in the receiving

       stolen property charge would be one year. The maximum in the breaking and

       entering would be one year. So that’s two years. One year, one year. Each of

       the burglaries, the maximum would be 36 months or three years. So you got

       three years, three years, one year, one year, that’s the maximum, that’s eight years.

        Okay.

       {¶ 19} After the above-quoted statement by the trial court, Foster could not have been in any

doubt as to the maximum possible sentence for each of the offenses individually, or as to the maximum

possible aggregate sentence, eight years, for all four offenses.

       {¶ 20} Finally, appellate counsel raises as a possible issue that Foster may have been

misled from the trial court’s remarks at the plea hearing that it was absolutely bound to impose a

sentence within the agreed cap, “and consequently that in no instance could he receive a greater

prison sentence than the twenty four (24) month agreed cap.” But as noted in Part II, above, the

trial court made it clear to Foster that if the trial court decided not to be bound by the two-year

cap, then Foster would not be bound by the plea agreement – he could withdraw his plea and

proceed to trial. Thus, Foster was not misled into thinking that he could not, as a result of his

plea, receive a prison sentence greater than two years. He was not misled in this regard, because
                                                                                                    7


the trial court had agreed that it would not impose a sentence greater than two years as a result of

Foster’s plea. For a sentence greater than two years to have been imposed, Foster would either

have had to have been tried and convicted, or he would have had to have decided, after being

permitted to withdraw his plea, to plead guilty. Either way, Foster was not misled as to the

consequences of the plea he entered at the plea hearing. He could not, in fact, have been

sentenced to a prison term greater than two years as a consequence of that plea.

       {¶ 21} Next, assigned counsel raises the potential assignment of error that the two-year

prison sentence imposed constituted an abuse of the trial court’s discretion. Counsel refers to

some facts that the trial court mentioned at the sentencing hearing as indicating that Foster lacked

remorse. These included the fact that Foster made no apparent effort to return any of the items,

including heirlooms, that he stole from his individual victim, Donohoo, despite the fact that

Donohoo had noticed Foster wearing one of them, a chain, on Foster’s Facebook. Counsel

suggests that the trial court’s reference to these facts may violate the prohibition against judicial

fact-finding set forth in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d. 470.

       {¶ 22} We agree with counsel that this potential assignment of error has no arguable

merit, because it is based upon a misreading of Foster. In Foster, the Supreme Court of Ohio

cited the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), upon which Foster was based: “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Foster, ¶ 3, quoting Apprendi, at 530 U.S. 490.

The trial court in the case before us was not relying upon any facts to increase the penalties for

the crimes of which Foster was convicted beyond the statutory maximum sentence prescribed.

The trial court was merely referring to the facts of this case in explaining its reasoning for
                                                                                                 8


imposing the sentence that it did. While Foster does not require a trial court to explain its

reasoning, we regard the giving of an explanation as a practice to be encouraged, not discouraged.

       {¶ 23} (R.C. 2929.14(C)(4) does require certain findings for the imposition of

consecutive sentences. The trial court made those findings in this case.)

       {¶ 24} Under Anders v. California, we have an independent duty to review the record

and determine whether there are any potential assignments of error having arguable merit. We

have found none. Consequently, the judgment of the trial court is Affirmed.

                                                  .............

HALL and WELBAUM, JJ., concur.


Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Brock A. Schoenlein
Allen J. Foster
Hon. Frances E. McGee
