[Cite as State v. Slamka, 2019-Ohio-3317.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                    :

       Appellee,                                  :      CASE NO. CA2018-10-200

                                                  :            OPINION
   - vs -                                                       8/19/2019
                                                  :

KEITH RANDALL SLAMKA,                             :

       Appellant.                                 :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2018-06-0983



Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 South Second Street, #305, Hamilton, Ohio 45011, for appellant



        HENDRICKSON, P.J.

        {¶ 1} Appellant, Keith Randall Slamka, appeals from the sentence he received in the

Butler County Court of Common Pleas for two counts of theft. For the reasons discussed

below, we affirm appellant's sentence.

        {¶ 2} In June 2018, appellant was indicted on two counts of theft in violation of R.C.

2913.02(A)(1), (B)(2), felonies of the fifth degree, one count of misuse of credit cards in
                                                                       Butler CA2018-10-200

violation of R.C. 2913.21(B)(2), a felony of the fifth degree, and one count of petty theft in

violation of R.C. 2913.02(A)(1), (B)(2), a misdemeanor of the first degree. According to the

bill of particulars, the charges arose from appellant's conduct on April 19, 2018 and April 20,

2018. Appellant was charged with stealing lawn equipment, household items, and a credit

card from M.C. Appellant then used the credit card to withdraw over $2,000 from ATM

machines and to charge over $1,500 of goods and services without M.C.'s permission.

       {¶ 3} On September 13, 2018, following plea negotiations, appellant pled guilty to two

counts of theft in exchange for the remaining counts being dismissed. At the plea hearing,

the state explained the differences between the two theft counts, stating: "Count I is stealing

the credit card; Count II is withdrawing money from the ATM machine with the stolen card."

The trial court accepted appellant's guilty plea, set the matter for sentencing on October 18,

2018, and ordered that a presentence investigative ("PSI") report be prepared. The court

also informed the parties that the issue of whether the two theft offenses were allied offenses

would be "talk[ed] about * * * when we come back for the sentencing."

       {¶ 4} However, the issue of allied offenses was never discussed at the sentencing

hearing. Instead, the trial court heard from defense counsel and appellant in mitigation and

allocution before imposing a sentence on appellant.         Defense counsel acknowledged

appellant had served a prior prison term and had "drug and alcohol issues," which included

the use of heroin and multiple OVI convictions, but counsel nonetheless contended appellant

was contrite and had taken responsibility for his actions. Counsel stated appellant had

obtained his G.E.D. and had the ability to work, and counsel requested that the court

consider imposing community control sanctions rather than a prison term.             Appellant

acknowledged that he had "bit the hand off that's feeding [him]" when he stole from M.C., as

M.C. had been providing him with a place to live and with money for doing certain jobs for

her. Appellant stated that he "regret[ted] what [he] done" and wanted "a chance to get out on

                                              -2-
                                                                       Butler CA2018-10-200

community control, [see] how things would work; get out and do the right thing."

      {¶ 5} After reviewing the PSI and victim impact statement and considering the

information presented at the sentencing hearing, the trial court determined that community

control was not an appropriate sanction and that a prison term was warranted. The trial court

stated its intent to impose nine-month prison terms on each theft offense, to be served

consecutively for an aggregate prison term of 18 months. The court made the necessary

consecutive sentencing findings, informed appellant that he may be subject to a three-year

optional period of postrelease control upon his release from prison, and ordered appellant to

pay court costs and $1,047.48 in restitution to M.C.

      {¶ 6} However, after the court first announced its sentence, the following discussion

occurred:

             THE COURT: Defendant will be held in Butler County Jail until
             he can be transported to prison. Good luck to you, Mr. Slamka.

             [APPELLANT]: Uh-huh.

             THE COURT: And he struts out of the courtroom.

             [APPELLANT]: Make you feel good to give us (sic) that much.

             THE COURT: Oh, hang on, I've got to rethink this a little bit. Mr.
             Slamka wants to mouth off and make a scene here.

             Mr. Slamka, your attorney is still present; what is it you wanted to
             share with the Court?

             [APPELLANT]: No, I just think it's crazy getting 18 months for
             this. (Indiscernible) people selling drugs get less time than
             (indiscernible).

             THE COURT: I see. Well, I would say this: I think your
             comments are reflective of someone who has absolutely no
             remorse or insight into the wrongfulness of your actions. And
             after additional consideration, the Court is inclined to modify your
             sentence. Before I do so, does counsel wish to be heard?

             [DEFENSE COUNSEL]: Judge, I think that – I know the Court's
             had ample time and careful consideration prior to the sentence

                                             -3-
                                                                       Butler CA2018-10-200

              that had just been handed out, I'd ask – I think that it's probably
              most appropriate to let the sentence that the Court just rendered
              stand, as opposed to being modified at this time.

              THE COURT: Thank you. Mr. Slamka, is there anything else
              you wish to bring to my attention?

              [APPELLANT]: No.

              THE COURT: Oh, all right. State have anything further?

              [PROSECUTOR]: No, Your Honor, thank you.

              THE COURT: After careful consideration, the Court will find a
              more appropriate sentence is 12 months on Count I, 12 months
              on Count II. They run consecutive, that's 24 months in prison.
              All the same warnings and information I previously gave you
              apply, as well as the consecutive findings.

       {¶ 7} At defense counsel's request, the trial court noted appellant's objection to the

imposition of maximum, consecutive sentences.          Thereafter, the trial court issued its

Judgment of Conviction Entry, which imposed consecutive 12-month prison terms for

appellant's theft offenses.

       {¶ 8} Appellant appealed his sentence, raising two assignments of error.

       {¶ 9} Assignment of Error No 1:

       {¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT

IMPOSED A SECOND, HARSHER SENTENCE THAN ORIGINALLY CONTEMPLATED.

       {¶ 11} In his first assignment of error, appellant challenges his sentence, arguing that

the "imposition of a harsher, maximum sentence than what was originally contemplated by

the trial judge was not clearly and convincingly supported by the record and defied the

purposes and principles of sentencing under R.C. 2929.11 and 2929.12."

       {¶ 12} We review the imposed sentence under the standard of review set forth in R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-


                                              -4-
                                                                                   Butler CA2018-10-200

3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's

decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an

appellate court to modify or vacate a sentence only if the appellate court finds by clear and

convincing evidence that "the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. A sentence is not

clearly and convincingly contrary to law where the trial court "considers the principles and

purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes

postrelease control, and sentences the defendant within the permissible statutory range."

State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious,

12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this court may "increase,

reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the

sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146

Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7.

        {¶ 13} A trial court has discretion to impose a prison term on an offender who pleads

guilty to a fifth-degree felony that is not an offense of violence if the offender "at the time of

the offense was serving, or the offender previously had served, a prison term." R.C.

2929.13(B)(1)(b)(x). "[I]n determining whether to impose a prison term as a sanction for a

felony of the * * * fifth degree, the sentencing court shall comply with the purposes and

principles of sentencing under section 2929.11 of the Revised Code and with section

2929.12 of the Revised Code." R.C. 2929.13(B)(2).

        {¶ 14} The purposes of felony sentencing are to protect the public from future crime by

the offender and to punish the offender. Former R.C. 2929.11(A).1 A felony sentence must



1. After appellant was sentenced on October 18, 2018, R.C. 2929.11 was amended. See 2018 Am.Sub.S.B. 66
(effective Oct. 29, 2018). The amendment added a third purpose of felony sentencing – "to promote the effective
rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes
without imposing an unnecessary burden on state or local government resources." R.C. 2929.11(A).
                                                     -5-
                                                                        Butler CA2018-10-200

be reasonably calculated to achieve the purposes set forth in R.C. 2929.11(A)

"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 committed by

similar offenders." Former R.C. 2929.11(B). In sentencing a defendant, a trial court is not

required to consider each sentencing factor, but rather to exercise its discretion in

determining whether the sentence satisfies the overriding purpose of Ohio's sentencing

structure. State v. Littleton, 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, ¶ 12.

The factors set forth in R.C. 2929.12 are nonexclusive, and R.C. 2929.12 explicitly allows a

trial court to consider any relevant factors in imposing a sentence. State v. Birt, 12th Dist.

Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 64.

       {¶ 15} After a thorough review of the record, we find no error in the trial court's

decision to sentence appellant to 12 months in prison for each of his fifth-degree felony theft

offenses. The record plainly reveals that appellant's sentence is not clearly and convincingly

contrary to law as appellant served a prior prison term, as contemplated by R.C.

2929.13(B)(1)(b)(x), and the court properly considered the principles and purposes of R.C.

2929.11, as well as the factors listed in R.C. 2929.12, informed appellant he may be subject

to up to three years of postrelease control upon his release from prison, and sentenced

appellant within the permissible statutory range for his fifth-degree felonies in accordance

with R.C. 2929.14(A)(5).

       {¶ 16} In both the court's sentencing entry and at the sentencing hearing, the trial court

specifically stated it had "considered the purposes and principles of sentencing [and]

weighed the recidivism and seriousness factors" before finding that appellant was not

amenable to available community control sanctions and imposing a prison sentence. The

court noted it had reviewed the PSI report, which detailed appellant's lengthy criminal history

involving multiple convictions for OVI, petty theft, and disorderly conduct, as well as a
                                              -6-
                                                                          Butler CA2018-10-200

conviction for felony nonsupport of dependents. The court also discussed the fact that

appellant's relationship with the victim facilitated the offense, noting that appellant had

victimized the woman who gave him a place to live and provided him with money. The court

stated, "the biggest problem here, [is] not that you've stumbled and fallen in the past, but

[that] this woman [was] trying to help you and you take her rototiller, you take her power

washer, you take whatever else. * * * I find that problematic."

       {¶ 17} The court was also clearly troubled by appellant's lack of genuine remorse and

insight into his behavior. Although appellant had acknowledged his wrongdoing by pleading

guilty and stating that he "bit the hand off that's feeding [him]," appellant's comments that the

contemplated 18-month prison sentence was "crazy" and was only given to "make [the judge]

feel good" demonstrated appellant's failure to appreciate his actions.             As appellant's

statements were made before the conclusion of the sentencing hearing, the trial court was

certainly entitled to consider these statements in ensuring the sentence it imposed complied

with principles and purposes of felony sentencing. As the court noted, appellant's statements

were "reflective of someone who has absolutely no remorse or insight into the wrongfulness

of [his] actions." "Genuine remorse is one factor to be considered by the court when it makes

its sentencing decision." State v. Rehab, 150 Ohio St.3d 152, 2017-Ohio-1401, ¶ 28, citing

R.C. 2929.12(D)(5). The trial court's decision to therefore consider appellant's lack of

genuine remorse and impose consecutive, 12-month prison terms under the facts presented

in this case was appropriate.

       {¶ 18} Appellant's argument that his criminal history, his relationship with the victim,

and his lack of remorse do not support the 12-month sentences imposed on each theft

offense are without merit. As this court has previously recognized, it is "[t]he trial court [that],

in imposing a sentence, determines the weight afforded to any particular statutory factors,

mitigating grounds, or other relevant circumstances." State v. Steger, 12th Dist. Butler No.
                                                -7-
                                                                      Butler CA2018-10-200

CA2016-03-059, 2016-Ohio-7908, ¶ 18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP-

810, 2014-Ohio-3696, ¶ 16. The fact that the trial court chose to weigh various sentencing

factors differently than how appellant would have weighed them does not mean the trial court

erred in imposing appellant's sentence. The trial court clearly considered and balanced the

factors in R.C. 2929.12, and the record supports the trial court's decision to impose 12-month

prison terms on each theft count.

       {¶ 19} The record further supports the trial court's imposition of consecutive

sentences. Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Smith,

12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court

must find that (1) the consecutive sentence is necessary to protect the public from future

crime or to punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public, and

(3) one of the following applies:

              (a) The offender committed one or more of the multiple offenses
              while the offender was awaiting trial or sentencing, was under a
              sanction imposed pursuant to section 2929.16, 2929.17, or
              2929.18 of the Revised Code, or was under post-release control
              for a prior offense.

              (b) At least two of the multiple offenses were committed as part
              of one or more courses of conduct, and the harm caused by two
              or more of the multiple offenses so committed was so great or
              unusual that no single prison term for any of the offenses
              committed as part of any of the courses of conduct adequately
              reflects the seriousness of the offender's conduct.

              (c) The offender's history of criminal conduct demonstrates that
              consecutive sentences are necessary to protect the public from
              future crime by the offender.

R.C. 2929.14(C)(4); Smith at ¶ 7.

       {¶ 20} "In order to impose consecutive terms of imprisonment, a trial court is required


                                             -8-
                                                                       Butler CA2018-10-200

to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry." State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these

findings, it must be clear from the record that the court engaged in the required sentencing

analysis and made the requisite findings. Smith at ¶ 8. "A consecutive sentence is contrary

to law where the trial court fails to make the consecutive sentencing findings as required by

R.C. 2929.14(C)(4)." State v. Marshall, 12th Dist. Warren No. CA2013-05-042, 2013-Ohio-

5092, ¶ 8.

       {¶ 21} The record shows that the trial court made the requisite findings at the

sentencing hearing and later memorialized the findings in its sentencing entry. Specifically,

at the sentencing hearing, the court stated:

              [G]iven the circumstances of this case * * * the presumption as to
              concurrent sentences has been rebutted. The Court will find that
              consecutive sentences are necessary to adequately protect the
              public and to punish the defendant and are not disproportionate
              and will find that the defendant's criminal history shows that
              consecutive terms are not needed to adequately protect the
              public.

       {¶ 22} Although the language the trial court used in making the consecutive sentence

findings was not a word-for-word recitation of the language in the statute, such is not

required. State v. Alhashimi, 12th Dist. Nos. CA2016-07-065 and CA2017-07-066, 2017-

Ohio-7658, ¶ 67. "[A]s long as the reviewing court can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld." Bonnell, 2014-Ohio-3177 at ¶ 29.

       {¶ 23} Here, the trial court engaged in the correct analysis and the record contains

evidence supporting the court's findings under R.C. 2929.14(C)(4). As such, we find no error

in the court's imposition of consecutive sentences. Appellant's first assignment of error is,

therefore, overruled.
                                               -9-
                                                                          Butler CA2018-10-200

       {¶ 24} Assignment of Error No. 2:

       {¶ 25} THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE OF

APPELLANT WHEN IT IMPOSED MULTIPLE SENTENCES FOR ALLIED OFFENSES.

       {¶ 26} In his second assignment of error, appellant argues the trial court committed

plain error when it failed to merge his two theft convictions as allied offenses of similar

import. Appellant did not raise the issue of merger or argue that the offenses were allied at

the sentencing hearing.

       {¶ 27} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of

multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio

App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). However, the "failure to raise the issue of allied

offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is

not reversible error unless it affected the outcome of the proceeding and reversal is

necessary to correct a manifest miscarriage of justice." State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, ¶ 3.

       {¶ 28} In determining whether offenses are allied and should be merged for

sentencing, courts are instructed to consider three separate factors – the conduct, the

animus, and the import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of

the syllabus. Offenses do not merge and a defendant may be convicted and sentenced for

multiple offenses if any of the following are true: "(1) the conduct constitutes offenses of

dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3)

the conduct shows that the offenses were committed with separate animus." Id. at paragraph

three of the syllabus and ¶ 25. Two or more offenses of dissimilar import exist "when the

defendant's conduct constitutes offenses involving separate victims or if the harm that results

from each offense is separate and identifiable." Id. at paragraph two of the syllabus.

       {¶ 29} "At its heart, the allied-offense analysis is dependent upon the facts of a case
                                               - 10 -
                                                                       Butler CA2018-10-200

because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. "The evidence at

trial or during a plea or sentencing hearing will reveal whether the offenses have similar

import." Id. The burden is on the defendant to establish "his entitlement to the protection

provided by R.C. 2941.25 against multiple punishments for a single criminal act." State v.

Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 14.

       {¶ 30} Appellant was convicted of two counts of theft in violation of R.C.

2913.02(A)(1), which provides that "[n]o person, with the purpose to deprive the owner of

property or services, shall knowingly obtain or exert control over either the property or

services * * * [w]ithout the consent of the owner or person authorized to give consent."

Where the property stolen is a credit card or the value of the property is more than $1,000

but less than $7,500, the offense is a felony of the fifth degree. R.C. 2913.02(B)(2).

       {¶ 31} The record in the present case demonstrates that appellant's two theft offenses

are not allied offenses of similar import as the offenses were committed separately and

involved different conduct. As the state indicated during the plea hearing, the first count of

theft related to appellant stealing M.C.'s credit card, whereas the second count of theft

related to appellant withdrawing money from ATM machines with the stolen credit card. The

first theft offense was completed after appellant took M.C.'s credit card without consent on

April 19, 2018. The second theft offense did not occur until later, when appellant used the

credit card to obtain cash from ATM machines on April 19 and April 20, 2018. As we have

previously recognized, "'[b]ecause one offense was completed before the other offense

occurred, the two offenses were committed separately for purposes of R.C. 2941.25(B)

notwithstanding their proximity in time and that one was committed in order to commit the

other.'" State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 16, quoting

State v. DeWitt, 2d Dist. Montgomery No. 24437, 2012-Ohio-635, ¶ 33. Appellant's theft

offenses are therefore not allied offenses of similar import, and the trial court did not commit
                                             - 11 -
                                                                     Butler CA2018-10-200

plain error in not merging the offenses. Appellant's second assignment of error is overruled.

      {¶ 32} Judgment affirmed.


      S. POWELL and RINGLAND, JJ., concur.




                                            - 12 -
