[Cite as State v. Rardin, 2013-Ohio-4297.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                   :        OPINION

                 Plaintiff-Appellee,             :
                                                          CASE NO. 2012-P-0100
        - vs -                                   :

SCOTT RARDIN,                                    :

                 Defendant-Appellant.            :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
0118.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant
Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street,
Ravenna, OH 44266 (For Plaintiff-Appellee).

Michael E. Grueschow, 409 South Prospect Street, P.O. Box 447, Ravenna, OH
44266 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Scott Rardin, appeals from the August 9, 2012 judgment of the

Portage County Court of Common Pleas, sentencing him for unlawful sexual conduct

with a minor and labeling him a Tier II sex offender. For the reasons in this opinion, we

affirm the judgment of the trial court.

        {¶2}     Appellant was indicted on five counts of rape, felonies of the first degree,

in violation of R.C. 2907.02(A)(1)(b) and (B); 11 counts of gross sexual imposition,
felonies of the third degree, in violation of R.C. 2907.05(A)(4); three counts of

disseminating matter harmful to juveniles, felonies of the fourth degree, in violation of

R.C. 2907.31(A)(1); and three counts of unlawful sexual conduct with a minor, felonies

of the third degree, in violation of R.C. 2907.04(A) and (B)(1) and (3).         Appellant

pleaded not guilty to all charges.

       {¶3}   Appellant later withdrew his not guilty plea and entered a plea of guilty to

one count of unlawful sexual conduct with a minor, a third degree felony, in violation of

R.C. 2907.04(A) and (B)(1) and (3). The trial court accepted appellant’s plea and the

remaining charges were dismissed.

       {¶4}   After a hearing, appellant was sentenced to the maximum term of five

years in prison. The court notified appellant that he would be supervised for five years

under post-release control after his release. And the court classified appellant a Tier II

sex offender. Appellant appeals and asserts the following assignment of error:

       {¶5}   “The trial court erred by sentencing the defendant-appellant to a maximum

term of imprisonment.”

       {¶6}   “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences. 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 in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.

       {¶7}   Appellant does not assert his sentence was contrary to law; instead, he

argues the trial court failed to give appropriate consideration and adequate weight to the




                                            2
following facts: (1) he had no prior criminal record; (2) he expressed genuine remorse;

and (3) that the victim is young and, with counseling, will be able to live a full life. A

review of the record demonstrates the trial court gave proper consideration to all

information it received when it imposed the maximum sentence.

      {¶8}   At the hearing, the court heard from the victim, the victim’s mother, and

the victim’s brother.   They detailed, inter alia, the significant difficulties appellant’s

conduct has caused them.      In particular, the victim discussed the tremendous mental

and emotional anguish appellant’s abuse caused her; she stated she trusted appellant

as a father figure and he betrayed her trust. She explained appellant, through his abuse

and controlling behavior, robbed her of her childhood and innocence.          She further

underscored appellant’s actions have left her scared, confused, and hurt. Due to the

physical, mental, and emotional abuse she suffered at appellant’s hands, the victim

requested the court to impose the maximum five-year sentence.

      {¶9}   The victim’s mother stated she had been dating appellant eight years,

“[m]ost of that time he spent sexually abusing [her] daughter.” She underscored her

concern for her daughter’s current and future mental health; and expressed worry that

the victim would have problems with future relationships due to the abuse.            She

emphasized that appellant controlled her daughter with lies and fear and exploited his

position of authority to physically, mentally, and emotionally torment and abuse her.

And, she advised the court her family is currently homeless, living with family members,

as a consequence of appellant’s conduct. She also requested appellant receive the

maximum sentence.




                                            3
          {¶10} The victim’s brother echoed the previous statements and further

emphasized that his sister’s life had been affected in ways he could never understand

by a man she looked up to and trusted. He stated appellant’s conduct has caused his

sister to live in fear, especially for the future when appellant is eventually released into

the public. He then asked the court to impose the maximum sentence, even though, in

his view, “that would never be enough.”

          {¶11} Following the victim impact statements, defense counsel advised the court

appellant had no previous criminal record and has expressed profound remorse for his

wrongdoing. Counsel further noted that appellant has accepted full responsibility for his

actions and, given these points, requested the court to impose either community control

or the minimum available sentence.

          {¶12} Finally, appellant spoke in allocution. He apologized to the victim and her

family.     He acknowledged he let them down and requested the court to impose

community control so he could “be productive again.” He additionally promised the

court he would never do anything wrong again.

          {¶13} After considering the sentencing statutes, the presentence investigation

report, the statements of counsel and appellant, as well as the victim impact statements,

the court concluded community control sanctions would be inappropriate. The court

then imposed the maximum, authorized sentence.

          {¶14} In its judgment entry, the court journalized the maximum sentence. The

court reiterated the statements it made at the sentencing and underscoring its

considerations in fashioning the sentence; namely, the need to protect the public from

future crimes and punish appellant using the minimum sanctions that would accomplish




                                              4
these purposes without unnecessary burden on state resources.            The court further

acknowledged it weighed the punitive need to incapacitate appellant, the need to deter

appellant and others from future crimes, as well as appellant’s capacity for rehabilitation

in rendering its sentence.

       {¶15} The overriding purposes of felony sentencing in Ohio “are to protect the

public from future crime by the offender * * * and to punish the offender.” R.C.

2929.11(A). “A sentence imposed for a felony shall be reasonably calculated to achieve

the two overriding purposes of felony sentencing set forth in division (A) of this section,

commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders” R.C. 2929.11(B).

       {¶16} It is well-recognized that a sentencing court “has discretion to determine

the most effective way to comply with the purposes and principles of sentencing.” R.C.

2929.12(A). The Ohio Supreme Court has emphasized a sentencing court has “full

discretion to impose a prison sentence within the statutory range.” State v. Mathis, 109

Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus; State v. Ries, 11th Dist.

Portage No. 2008-P-0064, 2009-Ohio-1316, ¶13 (“[s]uch discretion is plenary”).

Therefore, “the trial court is not obligated, in the exercise of its discretion, to give any

particular weight or consideration to any sentencing factor.” State v. Holin, 174 Ohio

App.3d 1, 2007-Ohio-6255, ¶34 (11th Dist.).

       {¶17} With these principles in mind, the record indicates the court gave due

consideration to all statutory factors germane to the case. The court considered the

purposes and principles of felony sentencing under R.C. 2929.11 as well as the relevant




                                             5
seriousness and recidivism factors set forth under R.C. 2929.12. The court properly

advised appellant regarding post-release control and his classification as a Tier II sex

offender. We therefore hold the trial court did not abuse its considerable discretion in

sentencing appellant to the maximum sentence.

       {¶18} Appellant’s assignment of error lacks merit.

       {¶19} The judgment of the Portage County Court of Common Pleas is hereby

affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.

                               ______________________


COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.


       {¶20} I concur with the majority to affirm the judgment of the trial court.

However, I disagree with the majority’s application of State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, in light of H.B. 86.

       {¶21} Prior to 2006, Ohio sentencing law created presumptions that offenders be

given minimum, concurrent terms of incarceration.           See former R.C. 2929.14(B),

2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome if

the court made specific factual findings regarding the nature of the offense and the need

to protect the public. This judicial fact-finding was later called into question by Apprendi

v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004),

where the United States Supreme Court held that judicial fact-finding could infringe




                                             6
upon a defendant’s Sixth Amendment right to a jury trial because it invaded the fact-

finding function of the jury.

       {¶22} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely,

Ohio’s sentencing statutes that required a judge to make factual findings in order to

increase    a   sentence        beyond   presumptive   minimum      or   concurrent    terms

unconstitutionally infringed on the jury’s function in violation of the Sixth Amendment.

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. As a result, the Court severed those

sections and held that courts have full discretion to sentence within the applicable

statutory range and to order sentences to be served consecutively. Id. at ¶99-100.

       {¶23} In applying Foster, the Ohio Supreme Court later held in 2008 that

appellate courts must apply a two-step procedure for review of a felony sentence. State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In the first step, the Kalish Court held

that appellate courts shall 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, the standard found in R.C.

2953.08(G). Id. at ¶26. If this first step is satisfied, the Court held that the trial court’s

decision shall be reviewed under an abuse-of-discretion standard. Id.

       {¶24} This writer notes that Kalish, an appeal from this court, State v. Kalish,

11th Dist. Lake No. 2006-L-093, 2007-Ohio-3850 (O’Toole, J., concurring in part,

dissenting in part) is a plurality opinion. Therefore, it is merely persuasive. See State v.

Azbill, 11th Dist. Lake No. 2007-L-092, 2008-Ohio-6875, ¶9, fn.2, citing State v. Bassett,

8th Dist. No. 90887, 2008-Ohio-5597, ¶24, fn.2.           Although the plurality in Kalish

indicated that this court did not review the sentence to ensure that the trial court clearly




                                              7
and convincingly complied with the pertinent laws, it nevertheless affirmed this court’s

judgment, albeit on different grounds.

      {¶25} Thereafter, in 2009, the reasoning in Foster was partially called into

question by Oregon v. Ice, 555 U.S. 160 (2009), where the United States Supreme

Court held that a state could require judicial findings of fact to impose consecutive

rather than concurrent sentences without infringing on a defendant’s Sixth Amendment

rights. In 2010, the Ohio Supreme Court subsequently determined that Foster remained

valid after Ice and the judiciary was not required to make findings of fact prior to

imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio St.3d 1,

2010-Ohio-6320. However, a trial court was still required to consider the sentencing

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. See Foster,

supra, at ¶36-42.

      {¶26} On September 30, 2011, Ohio’s sentencing statutes were revised

pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different,

requirement of judicial fact-finding under H.B. 86, containing many amendments to

criminal sentencing provisions. For example, H.B. 86 revived the language provided in

former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4), requiring a trial court to

make specific findings when imposing consecutive sentences.        In addition, H.B. 86

reduced the maximum prison term for many third-degree felonies from five years to 36

months. As a result, we no longer apply the two-step analysis contained in the 2008

Kalish case to defendants sentenced after H.B. 86’s enactment. Rather, we apply R.C.

2953.08(G) and the clear and convincing standard to determine whether the sentence is

contrary to law. See e.g. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-




                                           8
1891, ¶10; State v. Drobny, 8th Dist. Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2;

State v. Kinstle, 3rd Dist. Allen No. 1-11-45, 2012-Ohio-5952, ¶47; State v. Cochran,

10th Dist. Franklin No. 11AP-408, 2012-Ohio-5899, ¶52.

       {¶27} In reviewing a felony sentence, R.C. 2953.08(G) provides:

       {¶28} “(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.

       {¶29} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

       {¶30} “(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;

       {¶31} “(b) That the sentence is otherwise contrary to law.”

       {¶32} The Eighth District recently stated in Venes, supra, at ¶20-21:

       {¶33} “It is important to understand that the ‘clear and convincing’ standard

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it

clear that ‘(t)he appellate court’s standard for review is not whether the sentencing court

abused its discretion.’ As a practical consideration, this means that appellate courts are

prohibited from substituting their judgment for that of the trial judge.




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       {¶34} “It is also important to understand 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

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. In other words, the restriction is on the appellate court, not the trial

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

       {¶35} Although trial courts have full discretion to impose any term of

imprisonment within the statutory range, they must consider the sentencing purposes in

R.C. 2929.11 and the guidelines contained in R.C. 2929.12.

       {¶36} H.B. 86 amended R.C. 2929.11, which now states:

       {¶37} “(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources. To achieve those purposes, the 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.”

       {¶38} “However, there is still no ‘mandate’ for the sentencing court to engage in

any factual findings under R.C. 2929.11 or R.C. 2929.12.” State v. Jones, 12th Dist.

Butler No. CA2012-03-049, 2013-Ohio-150, ¶49, citing State v. Rose, 12th Dist. Butler

No. CA2011-11-214, 2012-Ohio-5607, ¶78; State v. Putnam, 11th Dist. Lake No. 2012-




                                             10
L-026, 2012-Ohio-4891, ¶9. “Rather, the trial court still has discretion to determine

whether the sentence satisfies the overriding purpose of Ohio’s sentencing structure.”

Jones at ¶49; See R.C. 2929.12 (which 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.)

       {¶39} In this case, appellant was sentenced to a maximum sentence for a third

degree felony on August 9, 2012, after H.B. 86 was enacted. Thus, H.B. 86 applies

here. Therefore, this court should review the trial court’s sentence under H.B. 86 to

determine if it is clearly and convincingly contrary to law. See Venes, supra, at ¶10;

Kinstle, supra, at ¶47; Cochran, supra, at ¶52. Thus, in light of H.B. 86, I believe my

colleagues improperly apply Kalish, an outdated plurality opinion.

       {¶40} Appellant maintains the trial court failed to give appropriate consideration

and weight to the fact that he had no prior criminal record, expressed genuine remorse,

and that the victim, with counseling, is able to live a full life. He contends the trial court

erred in imposing an excessive prison term. Appellant further contends and states in

his brief that he “does not assert that his sentence was contrary to law.” However,

appellant proceeds to allege that the trial judge did not consider the relevant statutory

factors. As such, appellant makes an argument that his sentence is contrary to law by

calling into question the court’s consideration of the relevant sentencing statutes.

       {¶41} With regard to his sentence, appellant pleaded guilty to one count of

unlawful sexual conduct with a minor, a third degree felony.            Under H.B. 86, the

legislature created a two-tiered sentencing structure for third degree felonies. H.B. 86

amended R.C. 2929.14(A)(3) to change the range of possible prison terms for certain




                                             11
third degree felonies. R.C. 2929.14(A)(3)(b) decreases the range of penalties for most

felonies of the third degree to 9, 12, 18, 24, 30, or 36 months.          However, R.C.

2929.14(A)(3)(a) maintains the maximum 60-month penalty for the following offenses:

aggravated vehicular homicide, vehicular homicide, vehicular manslaughter, aggravated

vehicular assault, vehicular assault, sexual battery, unlawful sexual conduct with a

minor, or gross sexual imposition, or robbery or burglary if the offender previously has

been convicted of or pleaded guilty in two or more separate proceedings to two or more

aggravated robbery, robbery, aggravated burglary, or burglary offenses.

      {¶42} Here, appellant pleaded guilty to one count of unlawful sexual conduct

with a minor, a third degree felony. The trial court sentenced appellant to five years (60

months) in prison. Thus, appellant’s sentence was within the statutory range for the

offense under R.C. 2929.14(A)(3)(a).

      {¶43} At the sentencing hearing, the victim, the victim’s mother, and the victim’s

brother spoke to the court. They detailed how difficult it has been for them as a family

to move forward as a result of appellant’s conduct.

      {¶44} The victim’s mother and appellant were boyfriend and girlfriend.          The

victim, the victim’s mother, and the victim’s brother lived with appellant for six years.

The victim stated that she grew up loving and trusting appellant and considered him a

“father figure.” However, the victim never had the opportunity to be a child because

appellant stole her innocence. The victim stated that appellant did not want her to be

around others in fear she would tell “his secret.” She has struggled with feeling “scared,

confused, stressed, hurt and regret.” The victim hates what appellant did to her and

asked the judge to sentence him to the maximum.




                                           12
       {¶45} The victim’s mother said that the crime appellant committed devastated

her family.   They currently are homeless and living with family.        The victim is in

counseling and fears for her life, as appellant had threatened all of them. The victim’s

mother is sincerely concerned for her daughter’s mental health and further relationships

as a result of appellant’s actions. She said that appellant controlled her daughter with

lies and fear and that he used his authority to physically, mentally, and emotionally

abuse her. She believes her daughter’s trust in people will never be the same. The

victim feels ashamed and dirty and that this was her fault in some way. The victim was

isolated from her family and friends. The victim’s mother indicated that appellant, a

grown man who made the decision to harm a child, should pay the price “to the fullest

extent of the law.”

       {¶46} The victim’s brother stated that his sister’s life has been affected in ways

that he “could never understand” by a man that she looked up to and trusted. He said

that the victim fears for her safety every day, especially after appellant will be released

from prison. The victim’s brother asked the trial judge to give appellant the maximum

sentence and that in his opinion, “that would never be enough.”

       {¶47} After the victim and her family spoke, defense counsel stated that

appellant accepts full responsibility for his wrongdoing. Appellant’s attorney asked the

trial judge to impose community control or, in the alternative, the minimum sentence.

       {¶48} Lastly, appellant apologized to the victim and her family. He said he let a

lot of people down and was “sorry” for his actions. Appellant asked the trial judge to

consider community control so that he could “be productive again.” He promised he

would never do anything wrong ever again.




                                            13
       {¶49} In conclusion, the trial judge stated the following at the sentencing

hearing:

       {¶50} “[U]pon considering the Ohio sentencing statute, the probation report,

statement of counsel, statement of the Defendant and the victim impact statements,

finds community based sanctions are not appropriate in this case.

       {¶51} “It will be the sentence of this Court that you be confined by the Ohio

Department of Corrections for a period of five years[.]”

       {¶52} Furthermore, the trial court stated the following in its sentencing entry:

       {¶53} “The Court considered the purpose of felony sentencing which is to protect

the public from future crimes by the Defendant and to punish the Defendant using the

minimum sanctions that the Court determines to accomplish those purposes without

imposing an unnecessary burden on state or local government resources.

       {¶54} “The Court also considered the need for incapacitating the Defendant,

deterring the defendant and others from future crime, rehabilitating the Defendant,

making restitution to the victim of the offense, the public or both.

       {¶55} “The Court also considered the evidence presented by counsel, oral

statements, any victim impact statements, the Pre-Sentence Report and the defendant’s

statement.”

       {¶56} Thus, the record reflects the trial court gave due deliberation to the

relevant statutory considerations. The court considered the purposes and principles of

felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism

factors under R.C. 2929.12.       Further, the record reveals the court properly advised

appellant regarding post-release control. Therefore, the trial court complied with all




                                             14
applicable rules and statutes and, as a result, appellant’s sentence is not clearly and

convincingly contrary to law.

       {¶57} For the foregoing reasons, I concur in judgment only, as I disagree with

the majority’s application of Kalish in light of H.B. 86.




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