[Cite as State v. Thompson, 2011-Ohio-1315.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :      JUDGES:
                                               :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :      Hon. Sheila G. Farmer, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :      Case Nos. 10CA017
GREGORY THOMPSON                               :                10CA018
                                               :
        Defendant-Appellant                    :      OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common Pleas,
                                                   Case Nos. 10CR017 and 10CR051



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            March 18, 2010




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

F. CHRISTOPHER OEHL                                MATTHEW PETIT
164 East Jackson Street                            116 Cleveland Avenue, North
Millersburg, OH 44654                              Suite 808
                                                   Canton, OH 44702
Holmes County, Case Nos. 10CA017 and 10CA018                                           2

Farmer, J.

      {¶1}   On June 10, 2010, appellant, Gregory Thompson, pled guilty to one count

of theft in the fifth degree in violation of R.C. 2913.02, two counts of breaking and

entering in the fifth degree in violation of R.C. 2911.13, and one count of attempted

breaking and entering in violation of R.C. 2911.13, a misdemeanor in the first degree

(Case No. 10CR017).

      {¶2}   On June 18, 2010, appellant pled guilty to six additional counts of breaking

and entering in the fifth degree in violation of R.C. 2911.13 (Case No. 10CR051).

      {¶3}   A sentencing hearing was held on July 20, 2010. By judgment entry filed

same date, the trial court sentenced appellant to an aggregate term of three years in

prison.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶5}   "THE TRIAL COURT COMMITTED ERROR IN SENTENCING THE

APPELLANT IN VIOLATION OF STATE V. FOSTER, THUS THE SENTENCE IS

UNCONSTITUTIONAL."

                                            I

      {¶6}   Appellant claims the trial court erred in sentencing him to maximum

sentences in violation of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.          We

disagree.

      {¶7}   In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence:
Holmes County, Case Nos. 10CA017 and 10CA018                                             3

      {¶8}   "In applying Foster to the existing statutes, appellate courts must apply a

two-step approach. First, they 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."

      {¶9}   In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

      {¶10} We note although in Oregon v. Ice (2009), 555 U.S. 160, the United States

Supreme Court upheld the constitutional validity of an Oregon statute similar to Ohio's

pre-Foster sentencing statutes, the Supreme Court of Ohio in State v. Hodge, --- Ohio

St.3d ----, 2010-Ohio-6320, held the Oregon case did not revive the Foster statutes, and

trial courts are not obligated to engage in judicial fact-finding prior to imposing

consecutive sentences.

      {¶11} By judgment entry filed July 20, 2010, in Case No. 10CR017, the trial

court sentenced appellant to twelve months on two separate breaking and entering

convictions in the fifth degree, to be served concurrently, and twelve months on the theft

conviction in the fifth degree, to be served consecutively to the breaking and entering

sentences, and in Case No. 10CR051, twelve months on six separate breaking and

entering convictions in the fifth degree, to be served concurrently with each other, but

consecutively to the two years imposed in Case No. 10CR017. Felonies of the fifth

degree are punishable by "six, seven, eight, nine, ten, eleven, or twelve months." R.C.

2929.14(A)(5). Clearly the sentences on each count were within the permissible range.
Holmes County, Case Nos. 10CA017 and 10CA018                                             4


Furthermore, in its judgment entry, the trial court expressly stated that it considered the

purposes and principles of sentencing under R.C. 2929 .11, as well as the seriousness

and recidivism factors under R.C. 2929.12. Accordingly, the sentences are not clearly

and convincingly contrary to law.

      {¶12} Appellant pled guilty to eight counts of breaking and entering, one count of

theft, and one count of attempted breaking and entering, all involving different

businesses and several different dates.

      {¶13} Upon review, we find the aggregate sentence was neither contrary to law

nor an abuse of discretion.

      {¶14} The sole assignment of error is denied.

      {¶15} The judgment of the Court of Common Pleas of Holmes County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.



                                             _s/ Sheila G. Farmer__________________




                                             _s/ W. Scott Gwin____________________




                                             _s/ Patricia A. Delaney________________

                                                              JUDGES

SGF/sg 301
Holmes County, Case Nos. 10CA017 and 10CA018                                    5


             IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
GREGORY THOMPSON                        :
                                        :         CASE NOS. 10CA017
       Defendant-Appellant              :                   10CA018




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

judgment of the Court of Common Pleas of Holmes County, Ohio is affirmed. Costs to

appellant.




                                        s/ Sheila G. Farmer__________________




                                        _s/ W. Scott Gwin____________________




                                        _s/ Patricia A. Delaney________________

                                                        JUDGES
Holmes County, Case Nos. 10CA017 and 10CA018   6
