[Cite as State v. Moore, 2011-Ohio-2220.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. CT2010-0048
MARCUS D. MOORE

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR2010-0065


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       May 6, 2011



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

RON WELCH                                     SAM B. WEINER
ASSISTANT PROSECUTOR                          SAMUEL B. WEINER CO., LPA
27 North Fifth Street, P. O. Box 189          743 South Front Street
Zanesville, Ohio 43702-0189                   Columbus, Ohio 43206
Muskingum County, Case No. CT2010-0048                                                   2

Wise, J.

       {¶1}   Defendant-appellant Marcus D. Moore appeals his conviction and

sentence entered by the Muskingum County Court of Common Pleas on one count of

trafficking drugs with a forfeiture specification following a plea.

       {¶2}   Plaintiff-appellee is the State of Ohio.

                        STATEMENT OF THE CASE AND FACTS

       {¶3}   On April 1, 2010, Appellant Marcus D. Moore was indicted on one count

of drug trafficking, in violation of R.C. §2925.03(A)(1), a second degree felony, with a

forfeiture specification, after being arrested in a sting operation for selling nine ounces

of cocaine to a confidential informant.

       {¶4}   On July 19, 2010, Appellant entered a guilty plea as part of a negotiated

plea agreement wherein the State agreed to recommend a sentence of five (5) years of

incarceration. (Plea T. at 7-9).

       {¶5}   At sentencing, the State made its recommendation of a five year

sentence. (Sent. T. at 4). Appellant requested the imposition of a two year sentence,

the minimum sentence for a second degree felony. Id. at 5. The trial court followed the

State’s recommendation and imposed a five-year sentence. Id. at 6-7.

       {¶6}   Appellant subsequently filed a motion to reconsider the sentence, which

the trial court overruled.

       {¶7}   Defendant-Appellant now appeals, assigning the following error for review:

                                   ASSIGNMENT OF ERROR

       {¶8}   “I. THE TRIAL COURT ERRED WHEN IT ACCEPTED THE STATE’S

RECOMMENDATION               FOR    A   FIVE-YEAR        PRISON       SENTENCE   WITHOUT
Muskingum County, Case No. CT2010-0048                                                      3


EXERCISING ITS OWN JUDICIAL DISCRETION REQUIRED WHEN IMPOSING A

SENTENCE.       THIS    VIOLATED       THE     DEFENDANT’S        RIGHT     TO     HAVE     A

PROPORTIONATE SENTENCE IMPOSED BY A FAIR AND NEUTRAL JUDGE AND

ALSO VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS TO DUE

PROCESS OF LAW, THE EQUAL PROTECTION OF THE LAW, AND THE

SEPARATION OF POWERS DOCTRINE.”

                                              I.

       {¶9}   In his sole assignment of error, Appellant asserts that the trial court

abused its discretion in sentencing him to the minimum sentence and for not stating its

reasons for such on the record. We disagree.

       {¶10} The Ohio Supreme Court held, in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, that judicial fact finding is not required before a court imposes non-minimum,

maximum or consecutive prison terms. See, e.g., State v. Williams, Muskingum App.

No. CT2009-0006, 2009-Ohio-5296, ¶19, citing State v. Hanning, Licking App.No.

2007CA00004, 2007-Ohio-5547, ¶ 9. Subsequent to Foster, in a plurality opinion, the

Ohio Supreme Court established a two-step procedure for reviewing a felony sentence.

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The first step is to

“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.” Kalish at ¶ 4. If this first step is satisfied, the second step requires the

trial court's decision be reviewed under an abuse-of-discretion standard. Id.

       {¶11} In the case sub judice, the trial court stated on the record that it had

“received the presentence investigation, reviewed it thoroughly, as well as the
Muskingum County, Case No. CT2010-0048                                                  4


sentencing memorandum as presented and filed by [Appellant] in this matter.” (Sent. T.

at 6). Furthermore, the Sentencing Entry states that the court “considered the record,

all statements, any victim impact statements, the presentence report prepared, the plea

recommendation in this matter, as well as the principles and purposes of sentencing

under Ohio Revised Code § 2929.11 and its balance of seriousness and recidivism

factors under Revised Code §2929.12. (Sentencing Entry, Sept. 3, 2010).

         {¶12} Appellant presently does not direct us to any significant mitigating

information in the record, instead arguing that because the trial court imposed the same

sentence as that recommended by the State, the court failed to use its discretion.

Appellant also claims that the sentence is not proportionate to the crime and that he

was therefore deprived of his rights to due process and equal protection, but Appellant

fails to support such claims with any supporting argument.

         {¶13} In this case, Appellant was charged, pled and found guilty of a second

degree felony, the punishment for which is two, three, four, five, six, seven, or eight

years.    The trial court sentenced Appellant to five years, well within the statutory

guidelines for such offense.

         {¶14} Based on our review of the record, and pursuant to Foster and Kalish, we

cannot find any evidence that the trial court abused its discretion in rendering more than

the minimum sentence under the facts and circumstances of this case.
Muskingum County, Case No. CT2010-0048                                           5


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

      {¶16} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                 JUDGES
JWW/d 0426
Muskingum County, Case No. CT2010-0048                                          6


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
MARCUS D. MOORE                          :
                                         :
       Defendant-Appellant               :         Case No. CT2010-0048




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

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

       Costs assessed to Appellant.




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                                         ___________________________________


                                         ___________________________________

                                                            JUDGES
