[Cite as State v. Withers, 2011-Ohio-3054.]


         Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA




                            JOURNAL ENTRY AND OPINION
                                    No. 95437



                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                ANDRE T. WITHERS
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-533565

        BEFORE:            E. Gallagher, J., Sweeney, P.J., and Rocco, J.

    RELEASED AND JOURNALIZED:                             June 23, 2011
 ATTORNEYS FOR APPELLANT
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Matthew M. Nee
The Law Office of Matthew M. Nee
14701 Detroit Avenue
Suite 700
Lakewood, Ohio 44107

Nicholas A. Panagopoulos II
Nicholas A. Panagopoulos II, L.L.C.
The Gehring Building
1956 W. 25th St., Suite 302
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Denise J. Salerno
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

       {¶ 1} Andre T. Withers (“appellant”), appeals the sentence from the Cuyahoga

County Court of Common Pleas pursuant to a guilty plea that he entered for attempted

intimidation and aggravated menacing.     Appellant argues that the trial court erred by not

imposing a community control sanction in lieu of a prison sentence, that the trial court erred
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by imposing the longest prison term permitted for a fourth degree felony without making

requisite findings, and that he was denied effective assistance of counsel. For the following

reasons we affirm.

          {¶ 2} Appellant was indicted on February 16, 2010.         Appellant’s five count

indictment included charges of intimidation of crime victim or witness (Count 1), aggravated

menacing (Counts 2 and 3), and telecommunications harassment (Counts 4 and 5).

Appellant initially pled not guilty to the indictment.   On June 2, 2010, pursuant to a plea

agreement between the state and appellant, the state moved to amend Count 1 to attempted

intimidation, a felony of the fourth degree.    The appellant entered pleas to the amended

charge under Count 1 and to Count 2, aggravated menacing, a first degree misdemeanor.

Counts 3, 4, and 5 were nolled.      Appellant was referred for a presentence investigation

report.    On June 25, 2010, the trial court sentenced appellant to a prison term of eighteen

months on count 1 and six months in the county jail on Count 2, to run concurrent to one

another and he was advised of the possibility of three years of postrelease control.

Appellant subsequently appealed raising the three assignments of error contained in the

appendix of this opinion.

          {¶ 3} Appellant’s first assignment of error asserts that the trial court erred by

imposing a prison sentence for his attempted intimidation conviction, a felony of the fourth

degree, rather than a community control sanction.
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       {¶ 4} This court has recognized that we review felony sentences using the Kalish

framework.     State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; State

v. Brunning, Cuyahoga App. No. 95376, 2011-Ohio-1936.             In Kalish, the Ohio Supreme

Court applied a two-prong approach to appellate review of felony sentences.             Appellate

courts must first “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.”    Id. at ¶4.   If this first prong is satisfied, then we review the

trial court’s decision under an abuse-of-discretion standard.   Id. at ¶4 and 19.

       {¶ 5} In the first step of our analysis, we must determine whether or not the sentence

is contrary to law as required by R.C. 2953.08(G). “[T]rial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to make

findings and give reasons for imposing maximum, consecutive or more than the minimum

sentence.”   Id. at ¶11, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, ¶100. The Kalish court declared that although Foster eliminated mandatory judicial

fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. As a result, the trial

court must still consider these statutes when imposing a sentence.     Id.

       {¶ 6} R.C. 2929.11(A) provides that:

       “A court that sentences an offender for a felony shall be guided by the overriding
       purposes of felony sentencing[,] * * * to protect the public from future crime by the
       offender and others and to punish the offender. To achieve those purposes, the
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        sentencing court shall consider the need for incapacitating the offender, deterring the
        offender and others from future crime, rehabilitating the offender, and making
        restitution to the victim of the offense, the public, or both.”

        {¶ 7} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the offender

will commit future offenses.

        {¶ 8} Appellant argues the trial court erred in sentencing him to prison rather than

community control for the fourth degree felony to which he pled guilty.           Appellant contends

that fourth degree felonies presumptively call for a community control sanction rather than

imprisonment where the trial court fails to make findings under R.C. 2929.13(B).

        {¶ 9} In regards to an offender convicted of a fourth or fifth degree felony, R.C.

2929.13(B)(2)(b) states that, “if the court does not make a finding described in division

(B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering

the factors set forth in section 2929.12 of the Revised Code, finds that a community control

sanction or combination of community control sanctions is consistent with the purposes and

principles of sentencing set forth in section 2929.11 of the Revised Code, the court shall

impose a community control sanction or combination of community control sanctions upon

the offender.”

        {¶ 10} In Foster, the Ohio Supreme Court observed that, “[c]ommunity control is the

default sentence for felonies of the fourth and fifth degree, except for those identified as
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mandatory prison offenses.” Foster at ¶ 68.         However Foster held that there is no

presumption in favor of community control.      Id. at ¶69.   The Court in Foster stated, “[i]f

no findings are made under R.C. 2929.13(B)(1)(a) through (i), the court must find that a

community control sanction meets the principles of sentencing under R.C. 2929.11 before it

must impose community control.         Thus, a judge who does not make one of the (B)(1)

findings and does not find that community control is a sufficient sanction could still impose a

prison term.”   Id. at ¶69.    Contrary to appellant’s argument, R.C. 2929.13(B)(2)(b) does

not prevent a court from imposing a prison term even in the absence of a R.C.

2929.13(B)(1)(a)-(i) finding, in instances where the trial court does not find that community

control is a sufficient sanction.        See State v. Clay, Cuyahoga App. No. 89763,

2008-Ohio-1415; State v. Morris, Cuyahoga App. No. 89425, 2008-Ohio-3026; State v.

Duncan, Cuyahoga App. No. 87518, 2006-Ohio-5024.

       {¶ 11} In the instant case, we do not find appellant’s sentence to be contrary to law.

The fact that the judge failed to make the R.C. 2929.13(B) findings does not preclude the

imposition of a prison term.     Id.   The court, noting appellants past criminal history and

struggles with drugs and alcohol, specifically found that appellant was not amenable to

community control sanctions.     In reaching this conclusion, the trial court acknowledged that

it had considered the purposes of felony sentencing along with the appropriate recidivism and

seriousness factors of R.C. 2929.12.     The trial court sentenced appellant to a prison term
                                              7

within the permissible statutory range for his convictions.        On these facts, we cannot

conclude that appellant’s sentence is contrary to law.

       {¶ 12} Having satisfied the first step, we next consider whether the trial court abused

its discretion. Kalish at ¶4 and 19.   An abuse of discretion is more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.

Id. at ¶19, quoting Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.

       {¶ 13} The trial court did not abuse its discretion in imposing an eighteen month

prison sentence in the present case.    The trial court allowed appellant and his counsel to

advocate a lighter sentence.    The appellant’s counsel acknowledged his long history of drug

offenses and three prior prison terms.       The court noted the seriousness of appellant’s

conduct and the chilling effect witness intimidation has upon the entire legal system.       We

find nothing in the record to suggest that the trial court’s decision was unreasonable,

arbitrary, or unconscionable.   Accordingly, appellant’s first assignment of error is overruled.

       {¶ 14} In his second assignment of error appellant argues that the trial court erred by

imposing the maximum prison term permitted for a fourth degree felony without making

findings pursuant to R.C. 2929.14(C).     Pursuant to the Ohio Supreme Court’s decision in

Foster, trial courts are no longer required to engage in judicial fact finding pursuant to R.C.

2929.14(C).    Trial courts have full discretion to impose a prison sentence within the
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statutory range and are no longer required to make findings and give reasons for imposing

maximum, consecutive or more than the minimum sentence. Foster at ¶100.                Appellant

argues that the statutory provisions requiring judicial fact finding severed by Foster are

revived pursuant to the United States Supreme Court’s decision in Oregon v. Ice (2009), 555

U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517.         However, as acknowledged by the appellant,

Ice dealt solely with the constitutionality of judicial fact finding in relation to the imposition

of consecutive sentences, not judicial fact finding in relation to statutory ranges for prison

terms.    Furthermore, appellant’s assertion that statutory provisions severed by Foster are

necessarily revived by Ice is undercut by the Ohio Supreme Court’s recent decision in State

v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, wherein the Court rejected

this argument in the context of Ohio’s former consecutive-sentencing statutory provisions.

Appellant’s second assignment of error lacks merit and is overruled.

         {¶ 15} In his third and final assignment of error appellant argues that he was denied

effective assistance of counsel.   In order to demonstrate a claim of ineffective assistance of

counsel, the appellant is required to demonstrate that (1) the performance of defense counsel

was seriously flawed and deficient, and (2) the result of the appellant’s trial or legal

proceeding would have been different had defense counsel provided proper representation.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

         {¶ 16} Appellant argues that his trial counsel was ineffective for failing to move the
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trial judge to recuse himself after jailhouse letters written by appellant to his former girlfriend

came to the judge’s attention.     The letters, purportedly critical of, among others, the trial

judge, have not been made part of the record on appeal.             However, the trial judge at

sentencing specifically addressed the letters:

       {¶ 17} The Court: “* * * I’m not holding anything against you that you wrote in here

about me.    I understand where that comes from. Remember what you wrote about me?”

       {¶ 18} Defendant: “Yes, I remember.”

       {¶ 19} The Court: “I totally understand that.”

       {¶ 20} The Defendant: “I was just, I mean no offense, your honor, it was just letters, I

was just writing to get a response back.”

       {¶ 21} The Court: “That’s — I totally understand.       That’s — I’d expect that from —

I mean it’s no problem at all.”

       {¶ 22} “* * *

       {¶ 23} The Court: “So I totally understand that. I don’t hold that against you.         **

*”

       {¶ 24} R.C. 2701.03 provides that a judge may be disqualified when the judge “is

interested in a proceeding pending before the court, allegedly is related to or has a bias or

prejudice for or against a party to a proceeding pending before the court or a party’s counsel,

or allegedly otherwise is disqualified to preside in a proceeding pending before the court.”
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       {¶ 25} The term “bias or prejudice” “implies a hostile feeling or spirit of ill-will or

undue friendship or favoritism toward one of the litigants or his attorney, with the formation

of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open

state of mind which will be governed by the law and the facts.”          State ex rel. Pratt v.

Weygandt (1956), 164 Ohio St. 463, 58 O.O. 315, 132 N.E.2d 191.

       {¶ 26} The statutory right to seek disqualification of a judge is an extraordinary

remedy. In re Disqualification of Hunter (1988), 36 Ohio St.3d 607, 522 N.E.2d 461.           A

judge is presumed to follow the law in all respects. In re Disqualification of Olivito (1994),

74 Ohio St.3d 1261, 657 N.E.2d 1361, citing In re Disqualification of Parks (Aug. 26, 1993),

No. 93-AP-060, unreported.     Further, a judge is presumed to be unbiased and unprejudiced

over the matters in which she or he presides.    Id. “‘Bias or prejudice on the part of a judge

will not be presumed. In fact, the law presumes that a judge is unbiased and unprejudiced in

the matters over which he presides, and bias or prejudice must be strong enough to overcome

the presumption of his integrity.’”   Id., quoting State v. Baker (1984), 25 Ohio Misc.2d 11,

12, 25 OBR 232, 495 N.E.2d 976,       quoting 48A Corpus Juris Secundum (1981) 731, Judges,

Section 108.    The appearance of bias or prejudice must be compelling to overcome these

presumptions.    Id.

       {¶ 27} The record here does not reflect that the trial judge intended to give appellant a

more severe sentence based on language critical of the judge in appellant’s letters.   The trial
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judge specifically addressed the letters and assured the appellant that he understood the

context of the criticism and would not hold it against him for sentencing purposes.       The

record does not support a compelling case of bias in this instance and we conclude that

appellant’s trial counsel was not deficient in failing to request the judge’s recusal.

Appellant’s third assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.          The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.         Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KENNETH A. ROCCO, J., CONCUR
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                                        Appendix

Assignment of Error No. 1:
      “The trial court erred by not imposing a community control sanction.”

Assignment of Error No. 2:
      “The trial court erred by imposing the longest prison term permitted for a fourth
      degree felony without making requisite findings.”

Assignment of Error No. 3:
      “Mr. Withers was denied effective assistance of counsel.”
