[Cite as State v. Markey, 2011-Ohio-5900.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

THE STATE OF OHIO,                               JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Appellee,                                Hon. Sheila G. Farmer, J.
                                                 Hon. Julie A. Edwards, J.
v.
                                                 Case No. CT11-0016
LARRY MARKEY,

        Appellant.                               OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Muskingum County Court
                                              of Common Pleas, Case No. CR2010-0260


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       November 10, 2011


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


ROBERT L. SMITH                               ROBERT D. ESSEX
Assistant Prosecuting Attorney                604 East Rich Street
Muskingum County, Ohio                        Columbus, Ohio 43215
27 North Fifth Street, Suite 201
Zanesville, Ohio 43701
Muskingum County, Case No. CT11-0016                                                    2

Hoffman, P.J.


         {¶ 1} Defendant-appellant Larry Markey appeals his sentence entered by in the

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

                           STATEMENT OF THE FACTS AND CASE

         {¶ 2} On October 31, 2010, Appellant entered a detached garage to an

unoccupied residence and removed several items of property. On February 23, 2011,

Appellant entered a plea of guilty to one count of breaking and entering and one count

of theft. In exchange, the State agreed to jointly recommend a six month prison term to

the trial court.

         {¶ 3} On March 21, 2011, the trial court conducted a sentencing hearing, and

imposed an eleven month prison term based upon a presentence investigation.

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

         {¶ 5} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO GREATER THAN THE AGREED UPON SIX MONTH SENTENCE.”

                                                I

         {¶ 6} In the sole assignment of error, Appellant argues the trial court erred in

imposing the eleven month prison term as the State recommended six months and the

sentence violated the proportionality requirement of R.C. 2929.11(B).        The statute

reads,

         {¶ 7} “(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
Muskingum County, Case No. CT11-0016                                                     3


conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.”

       {¶ 8} Appellant does not present any significant mitigating information in the

record apart from the State’s agreement to jointly recommend a six month prison term.

       {¶ 9} R.C. 2929.14(A)(5) states, “for a felony of the fifth degree, the prison term

shall be six, seven, eight, nine, ten, eleven or twelve months.” A court has broad

discretion in determining the most effective way to comply with the purposes and

principles of sentencing. R.C. 2929.12(A).

       {¶ 10} As stated in R.C. 2929.11, the two overriding purposes of felony

sentencing are to first, protect the public from future crime by the offender, and, second,

punish the offender. The 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. Id.

       {¶ 11} In State v. Kienzle, 2007-Ohio-4346, the Ninth District held,

       {¶ 12} “In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Court found that

Ohio's sentencing structure was unconstitutional to the extent that it required judicial

fact-finding. Id. at paragraphs one through seven of the syllabus. In constructing a

remedy, the Court excised the portions of the statute it found to offend the Sixth

Amendment and thereby granted full discretion to trial court judges to sentence

defendants within the bounds prescribed by statute. See Id.; State v. Dudukovich, 9th

Dist. No. 05CA008729, 2006-Ohio-1309, at ¶ 19.

       {¶ 13} “Additionally, Foster altered this Court's standard of review which was

previously a clear and convincing error standard. State v. Windham, 9th Dist. No.
Muskingum County, Case No. CT11-0016                                                       4


05CA0033, 2006-Ohio-1544, at ¶ 11. Accordingly, this Court reviews Appellant's

sentence utilizing an abuse of discretion standard. Id. at ¶ 12. An abuse of discretion is

more than an error in judgment or law; it implies an attitude on the part of the trial court

that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219. Furthermore, when applying the abuse of discretion standard, an

appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio

State Med. Bd. (1993), 66 Ohio St.3d 619, 621.

       {¶ 14} “The Foster Court noted that ‘there is no mandate for judicial fact-finding in

the general guidance statutes. The court is merely to ‘consider’ the statutory factors.’

Foster, supra, at ¶ 42. Moreover, post Foster, it is axiomatic that ‘[t]rial 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.’ Id. at paragraph 7 of the syllabus. Therefore, post-

Foster, trial courts are still required to consider the general guidance factors in their

sentencing decisions. The trial court stated that it had considered Appellant's prior

record when making its decision.

       {¶ 15} “***

       {¶ 16} “Appellant was convicted of a third degree felony. Accordingly, the trial

court was permitted to utilize its discretion to sentence him within the range of one to

five years incarceration for the third degree felony conviction. R.C. 2929.14(A)(3).

Appellant was sentenced to five years incarceration. Accordingly, Appellant's conviction

fell within the statutory ranges set forth in R.C. 2929.14.”
Muskingum County, Case No. CT11-0016                                                   5


      {¶ 17} In the case herein, we find the trial court did not abuse its discretion in

sentencing Appellant to eleven months in prison as the term was within the statutory

range for Appellant’s conviction, and the trial court properly considered the presentence

investigation report and sentencing purposes.

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

entered by the Muskingum County Court of Common Pleas is affirmed.



                                                                       By: Hoffman, P.J.

Farmer and Edwards, JJ., concur.

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


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


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS
Muskingum County, Case No. CT11-0016                                         6


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


THE STATE OF OHIO,                     :
                                       :
      Appellee,                        :
                                       :
v.                                     :        JUDGMENT ENTRY
                                       :
LARRY MARKEY,                          :
                                       :
      Appellant.                       :        Case No. CT11-0016


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

entered by the Muskingum 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/ Julie A. Edwards___________________
                                       HON. JULIE A. EDWARDS
