[Cite as State v. Balch, 2019-Ohio-4930.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2019-T-0037
        - vs -                                  :

RUSSELL DUANE BALCH,                            :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2018 CR
01166.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Russell D. Balch, appeals the aggregate eight-year

prison sentence ordered by the Trumbull County Court of Common Pleas following his

plea of guilty to Operating a Vehicle under the Influence of Alcohol, a Drug of Abuse, or

a Combination of them and Unauthorized Use of a Vehicle. For the following reasons,

we affirm the decision of the court below.

        {¶2}     On February 1, 2019, the Trumbull County Grand Jury returned an
Indictment against Balch charging him as follows:

                Count 1:      Operating a Vehicle under the Influence of Alcohol, a
                Drug of Abuse, or a Combination of them, a felony of the third
                degree in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(e) (“offender
                * * * previously has been convicted of or pleaded guilty to a
                violation of division (A) of this section that was a felony”), with a
                forfeiture specification pursuant to R.C. 2941.1417(A) and former
                R.C. 2981.02(A)(2) and (3)(a).

                Count 2:      Operating a Vehicle under the Influence of Alcohol, a
                Drug of Abuse, or a Combination of them, a felony of the third
                degree in violation of R.C. 4511.19(A)(1)(f) and (G)(1)(e) (“offender
                * * * previously has been convicted of or pleaded guilty to a
                violation of division (A) of this section that was a felony”), with a
                forfeiture specification pursuant to R.C. 2941.1417(A) and former
                R.C. 2981.02(A)(2) and (3)(a).

                Count 3:        Tampering with Evidence, a felony of the third degree
                in violation of R.C. 2921.12(A)(1) and (B).

                Count 4:       Possession of Marijuana, a minor misdemeanor in
                violation of R.C. 2925.11(A) and (C)(3)(b)1.

                Count 5:       Unauthorized Use of a Vehicle, a misdemeanor of the
                first degree in violation of R.C. 2913.03(A) and (D)(2).

                Count 6:       Consumption in a Motor Vehicle, a misdemeanor of
                the first degree in violation of R.C. 4301.64(A) and (D)(2)2.

         {¶3}   On May 7, 2019, Balch entered guilty pleas to Counts 1, 2, and 5 of the

Indictment. The State of Ohio subsequently entered a Nolle Prosequi on Counts 3, 4,

and 6.

         {¶4}   On June 4, 2019, the sentencing hearing was held. The two counts of

Operating a Vehicle under the Influence being allied offenses, the State elected to

proceed on Count 1. In support of an eight-year-sentence, the prosecutor argued:



1. Contrary to the Indictment, this division describes the possession of marijuana in an amount that
“equals or exceeds one hundred grams but is less than two hundred grams” as a misdemeanor of the
fourth degree.
2. This statute does not contain a division (A) or (D).


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                At the time of this offense, the defendant was driving a stolen car,
                he had a blood alcohol content of .223, and he had
                methamphetamine and marijuana in his system. This defendant
                has three prior felony OVIs, 13 OVIs overall, as well as a prior
                conviction for aggravated vehicular assault. The defendant has 72
                prior criminal cases.

        {¶5}    The trial court ruled:

                It’s one of the most outrageous driving records I’ve ever seen.
                Multiple, multiple, multiple OVIs. Luckily, someone wasn’t killed
                here. I’m concerned that 8 years isn’t enough, but that’s all I can
                give you at this time, because I would give you more if I could. You
                are a danger to society to be out there right now. We’ve got to take
                you off for as long as we can.

                So taking into consideration the principles and purposes of
                sentencing, and obviously your likelihood of recidivism, the Court
                will sentence you to 36 months, 3 years, on the underlying offense,
                and 5 years on the repeat OVI offender, and order them to be
                served consecutively, for a total of 8 years.

                And the consecutive sentence is based on your likelihood of
                committing future crimes.3 This is the worst type of this offense. It
                is – this is necessary to protect the public and punish you and not
                disproportionate. And again, the harm is so great or unusual that a
                single term does not adequately reflect the seriousness of this
                conduct. And your criminal history shows that consecutive terms
                are needed to protect the public here.

                So you are further ordered a mandatory fine of $1,350. And your
                driver’s license is suspended for life.

                As to Count 5, 180 days in the Trumbull County Jail. That merges
                [i.e., will be served concurrently] with that.

        {¶6}    Balch’s sentence was memorialized in a written Entry on Sentence on

June 13, 2019.

        {¶7}    On June 27, 2019, Balch filed a Notice of Appeal. On appeal, he raises

the following assignment of error:


3. Pursuant to R.C. 2929.13(G)(2), “[t]he offender shall serve the [repeat OVI offender] mandatory prison
term consecutively to and prior to the prison term imposed for the underlying offense * * *.”


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       {¶8}   “[1.] The trial court erred by sentencing the appellant to the maximum

terms of incarceration available.”

       {¶9}   Balch argues “the trial court abused its discretion in imposing the

maximum term of incarceration available upon Appellant” where “the record in this

matter reveals that both Appellant and society at large would benefit from Appellant

being placed in an appropriate treatment program, instead of being simply warehoused

away for as long as possible.” Appellant’s brief at 2. Contrary to Balch’s argument, a

court of appeals does not review a felony sentence for abuse of discretion.

       {¶10} “The appellate court’s standard for review is not whether the sentencing

court abused its discretion.”    R.C. 2953.08(G)(2).    Rather, an appellate court may

vacate a sentence “if it clearly and convincingly finds either * * * [t]hat the record does

not support the sentencing court’s findings * * * [or] [t]hat the sentence is otherwise

contrary to law.” R.C. 2953.08(G)(2)(a) and (b); State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

       {¶11} This court has previously disavowed the authority cited by Balch, State v.

Colburn, 9th Dist. Medina No. 14CA0012-M, 2016-Ohio-165, for the proposition that

“the appellate court reviews the imposition of a maximum term of imprisonment under

an ‘abuse-of-discretion standard.’” Appellant’s brief at 2. See State v. Smith, 11th Dist.

Trumbull No. 2018-T-0061, 2019-Ohio-1952, ¶ 11.

       {¶12} In the present case, the trial court was not required to make any findings

before imposing the maximum sentence. State v Mathis, 109 Ohio St.3d 54, 2006-

Ohio-855, 846 N.E.2d 1, ¶ 37 (“trial courts * * * are no longer required to make findings

or give their reasons for imposing maximum * * * or more than the minimum




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sentences”). Rather, “they must consider the sentencing purposes in R.C. 2929.11 and

the guidelines in R.C. 2929.12.” State v. Figueroa, 11th Dist. Trumbull No. 2018-T-

0071, 2019-Ohio-3151, ¶ 28.

      {¶13} “A sentence imposed for a felony shall be reasonably calculated to

achieve the three overriding purposes of felony sentencing * * * commensurate with and

not demeaning to the seriousness of the offender’s conduct and its impact upon the

victim, and consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

             The overriding purposes of felony sentencing are to protect the
             public from future crime by the offender and others, to punish the
             offender, and to promote the effective rehabilitation of 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.

R.C. 2929.11(A).

      {¶14} A trial court’s ability to achieve the overriding purposes of a felony

sentence is defined as discretionary, as is its authority to impose a sentence within the

statutorily prescribed range for a given offense. “[A] court that imposes a sentence * * *

upon an offender for a felony has discretion to determine the most effective way to

comply with the purposes and principles of sentencing set forth in section 2929.11 of

the Revised Code.” R.C. 2929.12(A). Likewise, “trial courts have full discretion to

impose a prison sentence within the statutory range.” Mathis at ¶ 37.

      {¶15} A trial court’s discretion with respect to these aspects of felony sentencing

does not alter the clear and convincing standard under which this court reviews felony



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sentences. The Ohio Supreme Court has held that, when reviewing felony sentences

“imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12,” the

appellate court applies an “equally deferential” standard of review as it applies when

reviewing other sentences under R.C. 2953.08(G). “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.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

at ¶ 23.

       {¶16} Balch raises no argument that his sentence was contrary to law and we do

not find by clear and convincing evidence that the record does not support the

imposition of the maximum sentence. The fact that Balch and/or society at large might

benefit from Balch receiving treatment for substance abuse does not undermine and is

not even inconsistent with the eight-year sentence which effectively protects the public

by incapacitating the offender.

       {¶17} The sole assignment of error is without merit.

       {¶18} For the foregoing reasons, Balch’s eight-year prison sentence is affirmed.

Costs to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.




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