[Cite as State v. Amos-Camacho, 2017-Ohio-8049.]


                                      COURT OF APPEALS
                                    HOLMES COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                           JUDGES:
STATE OF OHIO                                      :       Hon. W. Scott Gwin, P.J.
                                                   :       Hon. Craig R. Baldwin, J.
                        Plaintiff-Appellee         :       Hon. Earle E. Wise, J.
                                                   :
-vs-                                               :
                                                   :       Case No. 17CA03
BOBBI L. AMOS-CAMACHO                              :
                                                   :
                    Defendant-Appellant            :       OPINION




CHARACTER OF PROCEEDING:                               Criminal appeal from the Holmes County
                                                       Court of Common Pleas, Case
                                                       No.16CR079

JUDGMENT:                                              Affirmed




DATE OF JUDGMENT ENTRY:                                October 2, 2017




APPEARANCES:

For Plaintiff-Appellee                                 For Defendant-Appellant

SEAN WARNER                                            DAVID HUNTER
Prosecuting Attorney                                   244 West Main Street
164 East Jackson Street                                Loudonville, OH 44842
Millersburg, OH 44654
Holmes County, Case No. 17CA03                                                          2

Gwin, P.J.

        {¶1} Appellant Bobbi L. Amos-Camacho appeals her maximum sentence after a

guilty plea in the Holmes County Court of Common Pleas.

                                 Facts and Procedural History

        {¶2} On November 21, 2016, a Holmes County Grand Jury returned an Indictment

against Appellant alleging Murder in violation of R.C. 2903.02(B), R.C. 2903.02(D) and

R.C. 2929.02(B). The specific allegations were that Appellant, on or about November 12,

2016, did cause the death of James L. Rowe, Jr., as a proximate result of her committing

or attempting to commit an offense of violence that is a felony of the first or second

degree, to wit: Felonious Assault, R.C. 2903.11.

        {¶3} On March 1, 2016, Appellant entered a negotiated guilty plea to the reduced

charge of Voluntary Manslaughter in violation of R.C. 2903.03 (A) and (C), a felony of the

first degree that carried a potential penalty of eleven years in prison and a $20,000.00

fine.

        {¶4} The prosecutor at Appellant’s sentencing hearing read the underlying facts

into the record.

        {¶5} On November 12, 2016, Appellant and James Rowe, Jr. were living together.

The pair had previously been married and divorced and they had got back together

approximately ten months prior to November 2016. The relationship has always been

highly volatile.

        {¶6} On November 12, 2016, both the Appellant and James Rowe, Jr. were

heavily drinking and arguing for most of the day. At approximately 10:30 p.m. that evening

the pair were alone together in the kitchen/mud room area of the rental house and at that
Holmes County, Case No. 17CA03                                                            3


time Appellant stabbed James Rowe, Jr. three times with a steak knife. He was stabbed

two times in the upper left chest and stabbed on the upper left arm. The deepest chest

wound resulted in his death. It severed the subclavian vein, which is a large vein that

runs underneath your clavicle about the size of a small finger. He also had a punctured

lung. The victim bled out both internally and externally. He died before he could be

transported. There is no evidence to suggest that James Rowe, Jr. was armed with any

type of a weapon. The prosecutor further stated,

             The evidence would show if it went to trial that, as I said they were

      both drinking all day, um, over the legal limit, arguing, threats were made

      by the Defendant to James Rowe, Jr. There had been physical altercations,

      confrontations on at least two (2) occasions leading up to the fatal stabbing.

      Uh, the [Appellant] was found to have marks, bruising on her arms and

      neck. Um, there were witnesses to much of what led up to the fatal stabbing

      but there was no witness to the actual stabbing itself in the last thirty (30) to

      sixty (60) seconds prior to that time. The [Appellant] when interviewed at

      the jail by detectives eventually admitting to stabbing James Rowe, Jr.

      claimed that he came at her uh, and there had been a prior physical assault

      that day. However this admission did not take place until after several hours

      of questioning and was in direct contradiction to her original statements to

      911, the Sheriff's department and others at the scene that James Rowe, Jr.

      had cut himself while sharpening a knife uh, and basically those are the

      facts of the incident.”

Sent. T. 7-8. The state argued,
Holmes County, Case No. 17CA03                                                          4


             We believe at trial, had we gone to trial and Mr. Johnson talked about

       the evidence somewhat, that we would have been able to prove that Jimmy

       Rowe was trying to leave the Defendant at the time he was stabbed;

       physically leave the house and leave with his son William to go and stay at

       his parent's house. And she did not want that and she became aggressive

       and angry and both of them fueled by the alcohol there was threats that,

       that the son William would testify about that the Defendant made to Jimmy

       uh, that there's physical confrontation when she was trying to prevent him

       from leaving and he was pushing her away. That's how those bruises

       occurred and that she was the aggressor. And there was no reason why

       other than anger, passion and alcohol why he had to be stabbed that day

       when he was trying to leave.

Sent. T. at 13.

       {¶7} The trial court reviewed photographs showing Appellant’s injuries, reviewed

Appellant’s prior prison history and heard from five individuals who spoke on the victim’s

behalf. The Court sentenced Appellant to eleven years in prison.

                                      Assignment of Error

       {¶8} Appellant raises one assignment of error,

       {¶9} “I. WHETHER THE TRIAL COURT ERRED IN SENTENCING APPELLANT

TO THE MAXIMUM SENTENCE FOR HER FELONY CONVICTION.”

                                       Law and Analysis

       {¶10} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;
Holmes County, Case No. 17CA03                                                                 5

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31.                      R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28

       {¶11} Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law.

       {¶12} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it is to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

       R.C. 2929.13(B).

       {¶13} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

Appellant pled to a felony of the first degree that carries a presumption of prison time.

Thus, R.C. 2929.13(B) is not applicable to this case.

       R.C. 2929.13(D).
Holmes County, Case No. 17CA03                                                               6


       {¶14} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or second

degree, for a felony drug offense that is a violation of any provision of Chapter 2925.,

3719., or 4729. of the Revised Code for which a presumption in favor of a prison term is

specified as being applicable, and for a violation of division (A)(4) or (B) of section 2907.05

of the Revised Code for which a presumption in favor of a prison term is specified as

being applicable.

       {¶15} R.C. 2929.13(D)(1) provides that when sentencing for a first or second-

degree felony “it is presumed that a prison sentence is necessary in order to comply with

the purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides

that “[n]otwithstanding the presumption * * * the sentencing court may impose a

community control sanction,” (emphasis added), but only if the sentencing court finds that

a community control sanction would (1) adequately punish the offender and protect the

public from future crime, and (2) not demean the seriousness of the offense because the

statutory less serious sentencing factors outweigh the more serious factors.

       {¶16} Thus, in order to impose a community control sanction in the instant case,

the trial court would have been required to find that such a sanction would adequately

punish Appellant, that Appellant was less likely to re-offend, and that such a sanction

would not demean the seriousness of the offense because Appellant’s conduct was less

serious than conduct normally constituting the offense. State v. Morin, 5th Dist. Fairfield

No. 2008–CA–10, 2008-Ohio-6707, 2008 WL 5265857, ¶ 27.

       {¶17} In the case at bar, the trial court stated,

             Under recidivism, I find the Defendant does have a lengthy criminal

       history, both misdemeanor and felony and I believe the Defendant has a
Holmes County, Case No. 17CA03                                                            7


       prior conviction that resulted in a probation violation and incarceration at a

       State prison institution. Under recidivism less likely the court finds none.

       Um, because this is a felony of the first degree, pursuant to Ohio Revised

       Code Section 2929.13(D) there is presumption in favor of prison. The

       presumption has not been overcome. Under the risk reduction uh, the court

       does not recommend a risk reduction sentence Uh, and the court does not

       find that it is appropriate. Um, the court does not recommend the Offender

       seek a risk reduction sentence and I will inform you that if I'm still here and

       I get a letter from the parole board I will do everything to keep you in prison.

       Everything.

Sent. T. at 21-22.      Accordingly, the trial court weighed and considered R.C.

2929.13(D) in Appellant’s case and found the Appellant failed to overcome the

presumption of imprisonment.

       R.C. 2929.14 (B)(2)(e).

       {¶18} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Appellant was not given

an additional prison sentence.

       R.C. 2929.14 (C)(4) Consecutive Sentences.

       {¶19} This factor is not applicable to Appellant’s case.

       R.C. 2929.20.

       {¶20} R.C. 2929.20 (I) is inapplicable, as Appellant was not applying to the court

for judicial release.

       R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.
Holmes County, Case No. 17CA03                                                           8


      {¶21} A trial court’s imposition of a maximum prison term for a felony conviction is

not contrary to law as long as the sentence is within the statutory range for the offense,

and the court considers both the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.

Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16.

      {¶22} The Marcum court further noted,

            We note that some sentences do not require the findings that R.C.

      2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

      appellate courts to review those sentences that are imposed solely after

      consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

      that is equally deferential to the sentencing court. That is, an appellate court

      may vacate or modify any sentence that is not clearly and convincingly

      contrary to law only if the appellate court finds by clear and convincing

      evidence that the record does not support the sentence.

146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).

      {¶23} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).
Holmes County, Case No. 17CA03                                                             9


       {¶24} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a

non-exhaustive 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.

       {¶25} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.

       {¶26} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

       {¶27} Thus, post-Foster, “there is no mandate for judicial fact-finding in the general

guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42.

State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist.
Holmes County, Case No. 17CA03                                                             10

No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are still

required to consider the general guidance factors in their sentencing decisions.

       {¶28} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its

findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

       {¶29} In the case at bar, the trial court heard from the victim’s father and mother

and three additional witnesses on the victim’s behalf. The Court received and reviewed

the photographs Appellant submitted of her injuries taken several days after the incident.

The trial court further reviewed Appellant’s previous convictions and prison sentences.

       {¶30} In the case at bar, the record shows that the trial court considered all relevant

factors, including the harm caused to the victim and that the Appellant’s relationship to

the victim facilitated the offense.

       {¶31} Accordingly, the trial court considered the purposes and principles of

sentencing [R.C. 2929.11] as well as the factors that the court must consider when
Holmes County, Case No. 17CA03                                                       11


determining an appropriate sentence. [R.C. 2929.12].

      {¶32} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range.     Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and recidivism

factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and

advised Appellant regarding post-release control. Upon a thorough review, we find the

record clearly and convincing supports the sentence imposed by the trial court. While

Appellant may disagree with the weight given to these factors by the trial judge,

Appellant’s sentence was within the applicable statutory range for a felony of the first

degree and therefore, we have no basis for concluding that it is contrary to law.

      {¶33} Appellant’s sole assignment of error is overruled.

      {¶34} The judgment of the Holmes County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
