[Cite as State v. Nash, 2012-Ohio-2308.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97388




                                      STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.



                                    MICHAEL A. NASH
                                                           DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-545780

        BEFORE:          Jones, J., Blackmon, A.J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                    May 24, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: David M. King
Assistant County Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Brett Kyker
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Michael Nash, appeals his sentence from rape and

kidnapping convictions. We affirm.

       {¶2} In 2011, Nash was charged with one count of kidnapping with sexual

motivation and sexually violent predator specifications; four counts of rape with a

sexually violent predator specification; and two counts of gross sexual imposition with

sexually violent predator specifications.

       {¶3} After plea negotiations with the state, Nash agreed to plead guilty to one

count of kidnapping and three counts of rape; the state agreed to nolle all specifications

and remaining charges.     As part of the plea agreement, Nash agreed to serve at least

eight years in prison and further agreed that none of the offenses were allied, and,

therefore, none of the convictions would merge for sentencing.

       {¶4} At the sentencing hearing, the trial court sentenced Nash to a total of 15 years

in prison as follows: four years on Count 3 (rape), five years on Count 4 (rape), and six

years on Count 5 (rape); those charges to run consecutive to each other but concurrent to

seven years on Count 1 (kidnapping).        The court also classified Nash as a Tier III sexual

offender.

       {¶5} It is from this sentence that Nash appeals, raising one assignment of error for

our review:

       I. The trial court abused its discretion under R.C. 2929.11 and 2929.12
       when it sentenced Mr. Nash to a term of [12] years in prison.
      {¶6} We begin our analysis with the premise that the trial court has wide discretion

to sentence an offender within the allowable statutory range permitted for a particular

degree of offense.   State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶

100. R.C. 2929.11(B) provides that a felony sentence must be reasonably calculated to

achieve the two purposes set forth in R.C. 2929.11(A): commensurate with and not

demeaning to the seriousness of the crime and its impact on the victim, and consistent

with sentences imposed on similarly-situated offenders. The court must also consider

the seriousness and recidivism factors under R.C. 2929.12.

      {¶7} But R.C. 2929.11 and 2929.12 do not mandate judicial fact-finding. Rather,

“[t]he court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. Thus, “in

exercising its discretion, a court is merely required to ‘consider’ the purposes of

sentencing in R.C. 2929.11 and the statutory * * * factors set forth in R.C. 2929.12.”

State v. Sutton, 8th Dist. No. 97132, 2012-Ohio-1054, ¶ 11, citing State v. Lloyd, 11th

Dist. No. 2006-L-185, 2007-Ohio-3013, ¶ 44.

      {¶8} Subsequent to Foster, the Ohio Supreme Court established a two-step

analysis for appellate courts when reviewing a felony sentence:

      [f]irst, [the reviewing court] 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.

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4.

      {¶9} For those sentences imposed consecutively, the Court declared the
requirements imposed by R.C. 2929.14(C)(4) unconstitutional and held that “judicial

fact-finding is not required before imposition of consecutive prison terms.”    Foster at ¶

99.   Thereafter, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,

the Court reiterated that R.C. 2929.14(C)(4) remained unconstitutional and imposed no

fact-finding obligation on Ohio’s trial courts. Id. at ¶ 39.

       {¶10} The General Assembly recently amended R.C. 2929.14(C)(4) and enacted

new language requiring fact-finding for consecutive sentences.       Am.Sub.H.B. No. 86.

But this legislation became effective September 30, 2011; therefore, it was not applicable

to Nash, who was sentenced on September 13, 2011.

       {¶11} Nash does not claim his sentence was contrary to law and we find that it was

not. Nash’s sentence was within the statutory guidelines and the trial court indicated

that it considered all factors required by law and that prison was consistent with the

purposes of R.C. 2929.11, therefore, the first prong of Kalish has been met.

       {¶12} We next consider whether the trial court abused its discretion in sentencing

Nash to 15 years in prison. Nash claims that the trial court abused its discretion by

failing to consider that he was a first-time offender, suffered from mental illness and

depression, and was not likely to reoffend.

       {¶13} At the sentencing hearing, the trial court indicated that it considered defense

counsel’s sentencing memorandum, the presentence investigation report, a mitigation of

penalty report, and the victim impact statement.   The trial court acknowledged that Nash

had a “very low risk of reoffending.”         The trial court further noted that Nash’s
relationship with the victim, who was a close friend and co-worker, facilitated the

offenses for which he was convicted and that fact rendered his crime more serious

pursuant to R.C. 2929.12.

       {¶14} The trial court outlined the facts of the case and stated it was considering the

factors set forth in R.C. 2929.11 and 2929.12. The trial court noted that Nash held his

co-worker hostage for hours on Christmas Eve, digitally raped her, threatened to kill her,

repeatedly bit, choked, slapped, and punched her, threw the victim across the room, and

threatened to kill himself.   The trial court further acknowledged that based on Nash’s

statements to the victim during the incident, he may have killed her had she not been able

to escape.

       {¶15} Based on these facts, we find that the trial court did not abuse its discretion

in sentencing Nash to 15 years in prison.

       {¶16} The sole assignment of error is overruled.

       {¶17} 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. 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.
LARRY A. JONES, SR., JUDGE

PATRICIA A. BLACKMON, A.J., and
JAMES J. SWEENEY, J., CONCUR
