[Cite as State v. Bernhart, 2012-Ohio-1752.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 11CA017
RONALD E. BERNHART JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Holmes County Court of
                                               Common Pleas, Case No. 11CR054


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        April 17, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


STEVE KNOWLING                                 JEFFREY G. KELLOGG
Prosecuting Attorney                           5 South Washington Street
Holmes County, Ohio                            Millersburg, Ohio 44654
164 E. Jackson Street
Millersburg, Ohio 44654
Holmes County, Case No. 11CA017                                                         2

Hoffman, P.J.


      {¶1}   Defendant-appellant Ronald E. Bernhart, Jr. appeals his sentence entered

by the Holmes County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   On April 6, 2011, the Holmes County Sheriff’s Office was contacted by the

Holmes County Department of Job and Family Services in reference to an alleged

sexual incident between Appellant and a thirteen year-old female.         Appellant was

eighteen years-old at the time of the incident. Appellant later admitted to two acts of

sexual intercourse with the minor female.

      {¶3}   On April 25, 2011, Appellant was arraigned on one count of unlawful

sexual conduct with a minor, a violation of R.C. 2907.04(A), a fourth degree felony. On

May 26, 2011, pursuant to a negotiated plea agreement, Appellant entered a plea of

guilty to the count. In exchange for Appellant’s plea, the State agreed to file no further

charges against Appellant relating to the victim. The State also agreed not to object to

community control sanctions if recommended by the Adult Probation Department.

      {¶4}   On August 4, 2011, the trial court sentenced Appellant to eighteen months

in prison, the maximum sentence for a fourth degree felony violation of R.C. 2907.04(A).

      {¶5}   Appellant now appeals, assigning as error:

      {¶6}   “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

SENTENCED RONALD BERNHART TO THE MAXIMUM TERM OF IMPRISONMENT

FOR CONVICTION OF A FOURTH DEGREE FELONY.”

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

the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,
Holmes County, Case No. 11CA017                                                            3


2006–Ohio–856, 845 N.E.2d 470 as it relates to the sentencing statutes and appellate

review of felony sentencing. See, State v. Snyder, Licking App. No.2008–CA–25, 2080–

Ohio–6709, 2008 WL 5265826.

       {¶8}   In Kalish, the Court discussed the affect of the Foster decision on felony

sentencing. The Court stated, in Foster, the Ohio Supreme 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, 896 N.E.2d 124, 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, Licking App. No.2006–CA–41, 2006–Ohio–5823, 2006 WL 3185175.

       {¶9}   Kalish held in reviewing felony sentences and applying Foster to the

remaining sentencing statutes, the appellate courts must use a two-step approach.

“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 shall be reviewed under an abuse of discretion

standard.” Kalish at ¶ 4, State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d

470.

       {¶10} The Supreme Court held, in Kalish, the trial court's sentencing decision

was not contrary to law. “The trial court expressly stated that it considered the purposes

and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12. Moreover,

it properly applied post release control, and the sentence was within the permissible
Holmes County, Case No. 11CA017                                                          4

range. Accordingly, the sentence is not clearly and convincingly contrary to law.” Kalish

at ¶ 18. The Court further held the trial court “gave careful and substantial deliberation

to the relevant statutory considerations” and there was “nothing in the record to suggest

that the court's decision was unreasonable, arbitrary, or unconscionable.” Kalish at ¶ 20.

       {¶11} We first find the trial court’s sentence was not contrary to law. We also

find the trial court considered the applicable felony sentencing statutes, determined

Appellant was not amenable to community control sanctions, and determined the

overriding purposes of felony sentencing warranted the maximum prison term of

eighteen months for a fourth degree felony. At the sentencing hearing, the trial court

found recidivism was likely due to Appellant’s prior criminal record and prior

adjudications of delinquency. The trial court found the offense was more serious due to

the victim’s age, and the offense being facilitated by the offender’s relationship with the

victim. The court further found Appellant showed no genuine remorse. Upon review,

we do not find the trial court abused its discretion in the imposition of Appellant’s

sentence.
Holmes County, Case No. 11CA017                                             5


      {¶12} Appellant’s sentence in the Holmes County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur                       s/ William B. Hoffman _________________
                                      HON. WILLIAM B. HOFFMAN


                                      s/ Sheila G. Farmer___________________
                                      HON. SHEILA G. FARMER


                                      s/ John W. Wise _____________________
                                      HON. JOHN W. WISE
Holmes County, Case No. 11CA017                                                       6


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


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
RONALD E. BERNHART JR.                    :
                                          :
       Defendant-Appellant                :        Case No. 11CA017


       For the reasons stated in our accompanying Opinion, Appellant’s sentence

entered by the Holmes County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise______________________
                                          HON. JOHN W. WISE
