               [Cite as State v. Craft, 2014-Ohio-952.]




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

 STATE OF OHIO

        Plaintiff-Appellee

 v.

 ROBERT D. CRAFT

        Defendant-Appellant



 Appellate Case No.    25849

 Trial Court Case No. 2013-CR-201


 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                             Rendered on the 14th day of March, 2014.

                                              ...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

CARL BRYAN, Atty. Reg. No. 0086838, 266 Xenia Avenue, Suite 225, Yellow Springs, Ohio 45387
     Attorney for Defendant-Appellant

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

WELBAUM, J.
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        {¶ 1}   We are asked to decide whether the trial court committed prejudicial error when

it accepted Appellant’s plea and sentenced him.

        {¶ 2}   Appellant, Robert D. Craft, and the State entered into a negotiated plea

agreement on June 4, 2013. They jointly recommended a sentence with an eight month prison

cap and the possibility of community control sanctions. Tr. p.4. Craft then entered a plea of guilty

to one count of vandalism, a felony of the fifth degree. On July 16, 2013, the trial court

sentenced Craft to a prison term of eight months.



                                FIRST ASSIGNMENT OF ERROR

        {¶ 3}   Craft’s first assignment of error states that:

        THE TRIAL COURT ERRED BY ACCEPTING APPELLANT’S PLEA

        BECAUSE IT WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND

        VOLUNTARILY.

        {¶ 4} Craft alleges that the trial court failed to ensure that he was competent after it was

aware Craft was taking medication. However, the trial court did ask Craft if his medication

affected his ability to understand. Craft told the judge that it did not. Also, there is nothing in the

conversation between Craft and the trial judge which would suggest that Craft did not entirely

understand the proceedings.

{¶ 5}    Secondly, Craft says that the vague and confusing questions posed by the court resulted

in vague answers. However, the questions of the court and Craft’s answers were straightforward.

For example, Craft believes the question, “How far did you go in school?” is vague and invited

Craft’s allegedly vague response, “Fourteen years.” Craft prefers the question “What grade did

you complete?”, to which he says he would have answered the level of school he completed.
                                                                                         3


Craft submits that his answer could be reasonably construed to mean he went to school until he

was fourteen and the trial court should have asked for clarification.

       {¶ 6}    Craft also believes the trial court erred when it asked him compound questions,

such as:

       THE COURT: “Were you able to read and understand the plea form that [your attorney]

       went over with you; do you have any questions about that document?”

       CRAFT: “No.”

       {¶ 7}    Craft contends that each part of the compound question should have been asked

separately, and he should have been given an opportunity to answer them separately. We find no

error or prejudice in the manner of the court’s inquiry. It was sufficient to ascertain the

information required.

       {¶ 8}    Also, at one point Craft answered that he had “not really” had sufficient time to

speak with his attorney. The court then focused on the subject of Craft’s counsel. The court

asked Craft a series of narrowly refined questions regarding the various aspects of

communications between Craft and his attorney. Craft’s answers revealed that his attorney had

adequately communicated and she fully informed and counseled him.

       {¶ 9}    Ultimately, Craft expressed that he was satisfied with his counsel’s

representation, his plea was voluntarily made, and he wanted to enter the plea. The court did not

err as alleged. We overrule this assignment of error.



                             SECOND ASSIGNMENT OF ERROR

       {¶ 10} Craft’s second assignment of error states that:

       THE TRIAL COURT ERRED BY DENYING APPELLANT HIS RIGHT TO
                                                                                            4


       ALLOCUTION.

       {¶ 11} Craft asserts that the trial judge interrupted him during his allocution in violation

of Crim.R. 32. However, the transcript reveals that the court invited Craft to speak by asking,

“Mr. Craft, do you have anything to say?” During two apparent pauses in Craft’s statements, the

trial court began to speak but stopped when Craft resumed his statement. On both occasions,

Craft continued his statements in support of mitigation. No violation of Craft’s right to allocution

is demonstrated on the record. We overrule this second assignment of error.



                               THIRD ASSIGNMENT OF ERROR

       {¶ 12} Craft’s third assignment of error states that:

       THE TRIAL COURT ATTEMPTED TO CONCLUDE THE HEARING

       WITHOUT INFORMING APPELLANT OF HIS RIGHT TO APPEAL.

       {¶ 13} When the trial court sentenced Craft to prison and remanded him into the custody

of the Sheriff, the record indicates the following:

       THE DEFENDANT: What does that mean?

       MS. GOSS:                       It means they’re going to take you into custody.

       THE DEFENDANT:                  So you’re going to throw me in jail for smashing a

                                       windshield?

       MS. GOSS:                       CORRECT.

       THE COURT:              No, I am sentencing you to prison, sir.

       THE DEFENDANT:                  That’s what I mean.

       THE COURT:                      Yep.

       THE DEFENDANT: For smashing a windshield? This is really unfair; how do I – can I
                                                                                             5


                                       appeal this or anything?

       THE COURT:                         Yes, you have a right to appeal within 30 days, if you

                                          cannot afford an attorney, one will be appointed for you,

                                           if you cannot afford a transcript, one will be provided

                               for             you.

       {¶ 14} Craft was advised of his right to appeal at sentencing. Also, since Craft did

appeal, any error on this issue would be harmless. State v. Shoop, 2d Dist. Greene No. 94 CA 68,

1995 WL 39285 (Feb. 1, 1995); State v. Meredith, 9th Dist. Summit No. 25198,

2011-Ohio-1517, ¶ 8. We overrule the third assignment of error.



                              FOURTH ASSIGNMENT OF ERROR

       {¶ 15} Craft’s fourth assignment of error states that:

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

       SENTENCED APPELLANT TO AN EIGHT MONTH PRISON TERM

       WITHOUT CONSIDERING THE STATUTORY MITIGATING FACTORS.

       {¶ 16} Craft interprets the record as demonstrating that the trial court did not consider his

mitigation letter. However, the record does not demonstrate that the court disregarded Craft’s

letter. Craft’s attorney tendered the letter to the trial judge. Tr. p. 14. We must presume the trial

court considered the letter after it was given to her.

       {¶ 17} Craft contends that the record affirmatively shows that the trial court failed to

consider the statutory mitigating factors and therefore abused its discretion. However, the trial

court stated that it considered both R.C. 2929.11 and 2929.12. Also, the sentence was below the

statutory cap and did not exceed the jointly recommended prison cap of eight months. Tr. p. 4.
                                                                                                6


       {¶ 18} The parties argue that the two-step approach set forth in State v. Kalish applies.

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. However, after the briefs were filed, this

court began to review felony sentencing using the standard of review set forth in R.C.

2953.08(G)(2). State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575, 25576,

2013-Ohio-5759. We stated:

                 In order to be consistent with the approach of other Ohio appellate
       districts that have already considered this issue in light of H.B. No. 86, we will no
       longer apply the two-part test in Kalish when reviewing felony sentences
       controlled by H.B. 86. From now on we will use the standard of review set forth
       in R.C. 2953.08(G)(2).
                R.C. 2953.08(G)(2) states that “[t]he appellate court may increase,

       reduce, or otherwise modify a sentence that is appealed * * * or may vacate the

       sentence and remand the matter to the sentencing court for resentencing.” The

       statute also explicitly states that “[t]he appellate court's standard for review is not

       whether the sentencing court abused its discretion.” Instead, the appellate court

       may take any action authorized under R.C. 2953.08(G)(2) if the appellate court

       “clearly and convincingly” finds either of the following:

               (a) That the record does not support the sentencing court's findings under

       division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

       2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any,

       is relevant;

               (b)    That   the   sentence    is   otherwise    contrary   to   law.    R.C.

       2953.08(G)(2)(a)-(b).

                It is important to note “that the clear and convincing standard used by

       R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge
                                                                                                7


       must have clear and convincing evidence to support its findings. Instead, it is the

       court of appeals that must clearly and convincingly find that the record does not

       support the court's findings.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, at

       ¶ 21. “In other words, the restriction is on the appellate court, not the trial judge.

       This is an extremely deferential standard of review.” Id.

                    Furthermore, “[a]lthough Kalish no longer provides the framework for

       reviewing felony sentences, it does provide * * * adequate guidance for

       determining whether a sentence is clearly and convincingly contrary to law.” State

       v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, 2013 WL 3156521, ¶

       10. According to Kalish, a sentence is not contrary to law when the trial court

       imposes a sentence within the statutory range, after expressly stating that it had

       considered the purposes and principles of sentencing set forth in R.C. 2929.11, as

       well as the factors in R.C. 2929.12. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

       896 N.E.2d 124, at ¶ 18.

       {¶ 19} We do not clearly and convincingly find that the sentence is contrary to law as

provided in Rodeffer. Even if we were to apply Kalish, we would find no abuse of discretion or

error of law in the trial court’s imposition of a prison sentence consistent with the jointly

recommended sentence cap. We therefore overrule Craft’s fourth assignment of error.

       {¶ 20} We have overruled all assignments of error. The judgment of the trial court is

affirmed.



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

HALL, J., concurs.
                                                                                          8



FAIN, J., concurring in the judgment:

          {¶ 20} I write separately merely to indicate that I am somewhat disinclined to adopt the

standard of review set forth in State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575, and

25576, 2013-Ohio-5759, for appeals from a sentence brought not under R.C. 2953.08, but under

“any other right to appeal.” R.C. 2953.08(A). In this regard, I find Judge Froelich’s dissenting

opinion in Rodeffer to be persuasive. In the case before us, as in Rodeffer, there are no findings

by the trial court for us to find clearly and convincingly to be not supported by the record. And

the sentence, being a sentence authorized by the criminal code, can hardly be clearly and

convincingly contrary to law. Thus, R.C. 2953.08 would seem not to be applicable to this

appeal.

          {¶ 20} But I need not reach a definitive answer on this question, because, like my

colleagues in the case before us, I would also find no abuse of discretion in the sentence imposed

in this case. In all other respects, I agree with Judge Welbaum’s opinion for the court in this

case.

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



Copies mailed to:

Mathias H. Heck
April F. Campbell
Carl Bryan
Hon. Mary Katherine Huffman
