[Cite as State v. Shanks, 2013-Ohio-2708.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
JAMES W. SHANKS                              :       Case No. 12-COA-043
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No 12 CRI 083



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 26, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

PAUL T. LANGE                                        ERIN N. POPLAR
110 Cottage Street                                   1636 Eagle Way
3rd Floor                                            Ashland, OH 44085
Ashland, OH 44805
Ashland County, Case No. 12-COA-043                                                     2

Farmer, J.

      {¶1}   On July 26, 2012, the Ashland County Grand Jury indicted appellant,

James Shanks, on one count of domestic violence in violation of R.C. 2919.25, one

count of intimidation of a victim in violation of R.C. 2921.04, and one count of abduction

in violation of R.C. 2905.02. Said charges arose from an incident between appellant

and his girlfriend, Barbara Baker.

      {¶2}   Pursuant to a negotiated plea agreement, appellant pled guilty to the

intimidation count on August 10, 2012. The remaining two counts were dismissed. By

judgment entry filed October 19, 2012, the trial court sentenced appellant to thirty-six

months in prison.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO

THE MAXIMUM PRISON TERM."

                                            I

      {¶5}   Appellant claims the trial court erred in sentencing him to the maximum

prison term. We disagree.

      {¶6}   Appellant cites R.C. 2953(G)(2) for this court's standard of review:



             (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.
Ashland County, Case No. 12-COA-043                                                           3


              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:

              (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.



       {¶7}   In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶ 4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence: "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 shall

be reviewed under an abuse-of-discretion standard."           In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).
Ashland County, Case No. 12-COA-043                                                           4


       {¶8}   Appellant pled guilty to one count of intimidation of a victim in violation of

R.C. 2921.04, a felony of the third degree. Pursuant to R.C. 2929.14(A)(3), felonies of

the third degree are punishable as follows:



              (3)(a) For a felony of the third degree that is a violation of section

       2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or

       that is a violation of section 2911.02 or 2911.12 of the Revised Code if the

       offender previously has been convicted of or pleaded guilty in two or more

       separate proceedings to two or more violations of section 2911.01,

       2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall

       be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-

       four, or sixty months.

              (b) For a felony of the third degree that is not an offense for which

       division (A)(3)(a) of this section applies, the prison term shall be nine,

       twelve, eighteen, twenty-four, thirty, or thirty-six months.



       {¶9}   R.C. 2953.08(G)(2)(a) does not apply in this case; therefore, appellant

must demonstrate his sentence was contrary to law under subsection (G)(2)(b). In its

judgment entry filed October 19, 2012, the trial court specifically stated it considered the

provisions of R.C. Chapter 2929, including R.C. 2929.11.               The trial court properly

applied postrelease control and sentenced appellant within the permissible range of

sentences under R.C. 2929.14(A)(3). Accordingly, the thirty-six month sentence is not

clearly and convincingly contrary to law.
Ashland County, Case No. 12-COA-043                                                 5


       {¶10} Appellant argues he should not have been sentenced to the maximum

sentence of thirty-six months because the facts do not warrant such a sentence.

Although appellant acknowledges he has an extensive criminal history, he argues it is

"nearly all related to his struggles with substance abuse." Appellant's Brief at 5. He

argues at the time of the incident, he was under a lot of stress as his home was in

foreclosure and his mother recently had passed away.

       {¶11} R.C. 2929.11 governs overriding purposes of felony sentences and states

as follows:



              (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.

              (B) 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
Ashland County, Case No. 12-COA-043                                                      6


       consistent with sentences imposed for similar crimes committed by similar

       offenders.



       {¶12} During the sentencing hearing, the trial court informed appellant of this

standard.    October 15, 2012 T. at 13-14.      The trial court was concerned with the

likelihood of appellant committing future crimes and the continued threat to the public,

noting he had a history of criminal conduct, including domestic violence convictions

dating back to 1991. Id. at 14. The trial court listed appellant's prior criminal record as

"assault, assault, assault, domestic violence, domestic violence, assault, assault,

assault" and noted he had "served already a fair amount of prison time." Id. In fact,

appellant committed the offense sub judice while under supervision. Id.

       {¶13} While appellant argues he would be better served with substance abuse

treatment as opposed to incarceration, protecting the public and punishment are the

focus of R.C. 2929.11, not rehabilitation. This was not appellant's "first time at the

rodeo." He has had ample opportunities to seek treatment and rehabilitate himself over

the years.

       {¶14} Upon review, we find the trial court did not err in sentencing appellant to

the maximum sentence.

       {¶15} The sole assignment of error is denied.
Ashland County, Case No. 12-COA-043                                           7


      {¶16} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                       _______________________________



                                       _______________________________



                                       _______________________________

                                                     JUDGES

SGF/sg 620
[Cite as State v. Shanks, 2013-Ohio-2708.]


                   IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JAMES W. SHANKS                                :
                                               :
        Defendant-Appellant                    :       CASE NO. 12-COA-043




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

judgment of the Court of Common Pleas of Ashland County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________



                                               _______________________________



                                               _______________________________

                                                           JUDGES
