[Cite as State v. Rea, 2013-Ohio-3972.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                        :       OPINION

                 Plaintiff-Appellee,                  :
                                                              CASE NO. 2012-A-0044
        - vs -                                        :

DONNA M. REA,                                         :

                 Defendant-Appellant.                 :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 511.

Judgment: Affirmed.


Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Gregory A. Price, 137 South Main, Suite 300, Akron, OH 44308 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Donna M. Rea, appeals from her conviction on one count of

 illegal assembly or possession of chemicals for the manufacture of drugs (“illegal

 assembly”), in violation of R.C. 2925.041(A), a felony of the third degree. The charges

 stem from the purchase of 284 pseudoephedrine tablets between April 13, 2011 and

 October       23,    2011,      and      alleges   they   were   purchased   to   manufacture

 methamphetamine.
      {¶2}   On December 15, 2011, the Ashtabula County Grand Jury indicted

appellant on two counts of illegal assembly; one count of prohibition against purchasing

pseudoephedrine in violation of R.C. 2925.55, a misdemeanor of the first degree; and

one count of possessing drug abuse instruments in violation of R.C. 2925.12, a

misdemeanor of the second degree.        On May 25, 2012, appellant changed her plea

from not guilty to guilty in exchange for the state dropping all counts except the first

count of illegal assembly. Appellant was sentenced her to a 36-month prison term.

      {¶3}   Appellant timely appealed and raises the following assignments of error

for our review:

      {¶4}   “[1.] The trial courts committed reversible error when they found that a

third degree felony carries a presumption of prison.

      {¶5}   “[2.] Appellant received ineffective assistance of counsel when her trial

counsel failed to correct the trial court’s conclusion that a third degree felony carries a

presumption of prison.”

      {¶6}   The arguments under appellant’s third assignment of error have been fully

discussed in our opinion in case number 2012-A-0043. Therefore, we will not repeat it

here. It is without merit as decided.

      {¶7}   Under her first assignment of error, appellant argues that the trial court’s

presumption that a third degree felony carries a presumption of prison is reversible

error. We disagree.

      {¶8}   In reviewing a felony sentence, appellate courts must apply a two-step

approach:




                                            2
      {¶9}   “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.” State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4.

      {¶10} “The first prong of the analysis instructs that ‘the appellate court must

ensure that the trial court has adhered to all applicable rules and statutes in imposing

the sentence. As a purely legal question, this is subject to review only to determine

whether it is clearly and convincingly contrary to law, the standard found in R.C.

2953.08(G).’” State v. Stewart, 11th Dist. Lake No. 2008-L-112, 2009-Ohio-921, ¶11,

quoting Kalish at ¶14.

      {¶11} “If a reviewing court is satisfied that the sentence is not clearly and

convincingly contrary to law under the first prong, the court must then engage in the

second prong of the analysis, which requires an appellate court to determine whether

the trial court abused its discretion in selecting a sentence within the permissible

statutory range.” Id. at ¶14, citing Kalish at ¶17.

      {¶12} R.C. 2925.041(C)(1) states as follows:

      {¶13} “(C) Whoever violates this section is guilty of illegal assembly or

possession of chemicals for the manufacture of drugs. Except as otherwise provided in

this division, illegal assembly or possession of chemicals for the manufacture of drugs

is a felony of the third degree, and, except as otherwise provided in division (C)(1) or

(2) of this section, division (C) of section 2929.13 of the Revised Code applies in

determining whether to impose a prison term on the offender. * * * If the violation of




                                             3
division (A) of this section is a felony of the third degree under this division and if the

chemical or chemicals assembled or possessed in violation of division (A) of this

section may be used to manufacture methamphetamine, there either is a presumption

for a prison term for the offense or the court shall impose a mandatory prison term on

the offender, determined as follows:

      {¶14} “(1) Except as otherwise provided in this division, there is a presumption

for a prison term for the offense. * * * (Emphasis added.)

      {¶15} None of the otherwise provided portions of the statute triggering a

mandatory sentence are applicable.

      {¶16} Accordingly, illegal assembly or possession of chemicals for the

manufacture of methamphetamine is a felony of the third degree carrying a

presumption of prison. The prison term for a third degree felony conviction is a range

between one and five years. R.C. 2929.14(A)(3). Based on the foregoing, under the

first prong of the Kalish test, appellant’s sentence cannot be found to be clearly and

convincingly contrary to law because there is a presumption of a prison term in the

range of one to five years for appellant’s offenses, and she was sentenced to three

years.

      {¶17} Additionally, the trial court stated that it considered the record, oral

statements, any victim impact statements and pre-sentence investigation reports, as

well as the principles and purposes of sentencing under R.C. 2929.11. The trial court,

likewise, considered the statements made by trial counsel, appellant herself, and the

statement of the Assistant Prosecutor.      Given that the court gave substantial and

careful thought to the relevant statutory considerations, we cannot say that the




                                            4
imposition of appellant’s sentence constitutes an abuse of discretion under the second

prong of Kalish. Appellant’s first assignment of error is without merit.

      {¶18} Under her second assignment of error, appellant maintains that trial

counsel’s performance was constitutionally deficient for failure to object to the trial

court’s conclusion that a third degree felony carries a presumption of prison. Again, we

disagree.

      {¶19} Ohio has adopted the analysis set forth in Strickland v. Washington, 466

U.S. 668 (1984), for determining whether counsel’s performance was so defective as to

require reversal of a conviction. See State v. Bradley, 42 Ohio St.3d 136, paragraph

two of the syllabus (1989). In a claim of ineffective assistance of counsel, the two-

pronged Strickland test places the burden on the defendant to prove that counsel’s

performance was deficient, and that the deficient performance prejudiced the defense.

Strickland at 687.

      {¶20} “To show that a defendant has been prejudiced by counsel’s deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel’s errors, the result of the trial would have been different.”

Bradley at paragraph three of the syllabus.

      {¶21} Appellant alleges that trial counsel was ineffective for failing to object to

the trial court’s conclusion that there is a presumption for a prison sentence. Based on

our disposition of appellant’s first assignment of error, counsel was not ineffective for

failing to object as there is a presumption for a prison term. Accordingly, appellant has

failed to show that trial counsel’s performance was deficient.         Appellant’s second

assignment of error is without merit.




                                              5
      {¶22} For the reasons stated in this opinion, it is the judgment of this court that

the judgment of the Ashtabula County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with
Concurring/Dissenting Opinion.


                               ____________________



COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with
Concurring/Dissenting Opinion.

      {¶23} As stated in my concurring/dissenting opinion in Case. No. 2012-A-0043, I

take exception with the fact that this case, Case No. 2012-A-0044, did not merge below

with Case No. 2012-A-0043. I further take exception with the fact that this court did not

later consolidate these cases for purposes of briefing and disposition. The charges in

both cases include illegal assembly or possession of chemicals for the manufacture of

drugs, all felonies of the third degree, all in violation of R.C. 2925.041(A), and all

alleged to have been purchased to manufacture methamphetamine. Thus, based on

the foregoing and on the facts at issue, I believe both cases should have merged

and/or been consolidated.

      {¶24} I concur with the majority with respect to appellant’s second assignment of

error regarding ineffective assistance of counsel. Under a plain error analysis, the

representation of appellant’s counsel did not fall below the standard expected of a

licensed attorney in Ohio. See State v. Bradley, 42 Ohio St.3d 136, paragraph two of

the syllabus (1989); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).



                                           6
      {¶25} However, I respectfully dissent regarding appellant’s sentence under her

first assignment of error, as the majority improperly applies State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, and the abuse of discretion standard, rather than clear and

convincing, in light of H.B. 86. In any event, under either standard, the trial court

committed error as the record shows that appellant, a non-violent offender, was

amenable to treatment and the judge used the wrong standard in sentencing in placing

on the record that appellant’s sentence carried with it a presumption of prison.

      {¶26} Prior to 2006, Ohio sentencing law created presumptions that offenders be

given minimum, concurrent terms of incarceration.         See former R.C. 2929.14(B),

2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome if

the court made specific factual findings regarding the nature of the offense and the

need to protect the public. This judicial fact-finding was later called into question by

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.

296 (2004), where the United States Supreme Court held that judicial fact-finding could

infringe upon a defendant’s Sixth Amendment right to a jury trial because it invaded the

fact-finding function of the jury.

      {¶27} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely,

Ohio’s sentencing statutes that required a judge to make factual findings in order to

increase    a   sentence     beyond   presumptive    minimum     or   concurrent   terms

unconstitutionally infringed on the jury’s function in violation of the Sixth Amendment.

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. As a result, the Court severed those

sections and held that courts have full discretion to sentence within the applicable

statutory range and to order sentences to be served consecutively. Id at ¶99-100.




                                           7
      {¶28} In applying Foster, the Ohio Supreme Court later held in 2008 that

appellate courts must apply a two-step procedure for review of a felony sentence.

Kalish, supra.   In the first step, the Kalish Court held that appellate courts shall

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, the standard found in R.C. 2953.08(G). Id. at ¶26. If this first step is

satisfied, the Court held that the trial court’s decision shall be reviewed under an

abuse-of-discretion standard. Id.

      {¶29} This writer notes that Kalish, an appeal from this court, State v. Kalish,

11th Dist. Lake No. 2006-L-093, 2007-Ohio-3850 (O’Toole, J., concurring in part,

dissenting in part) is a plurality opinion. Therefore, it is merely persuasive. See State

v. Azbill, 11th Dist. Lake No. 2007-L-092, 2008-Ohio-6875, citing State v. Bassett, 8th

Dist. Cuyahoga No. 90887, 2008-Ohio-5597, ¶24, fn.2. Although the plurality in Kalish

indicated that this court did not review the sentence to ensure that the trial court clearly

and convincingly complied with the pertinent laws, it nevertheless affirmed this court’s

judgment, albeit on different grounds.

      {¶30} Thereafter, in 2009, the reasoning in Foster was partially called into

question by Oregon v. Ice, 555 U.S. 160 (2009), where the United States Supreme

Court held that a state could require judicial findings of fact to impose consecutive

rather than concurrent sentences without infringing on a defendant’s Sixth Amendment

rights.   In 2010, the Ohio Supreme Court subsequently determined that Foster

remained valid after Ice and the judiciary was not required to make findings of fact prior

to imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio St.3d 1,




                                            8
2010-Ohio-6320. However, a trial court was still required to consider the sentencing

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. See Foster,

supra, at ¶36-42.

      {¶31} On September 30, 2011, Ohio’s sentencing statutes were revised

pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different,

requirement of judicial fact-finding under H.B. 86, containing many amendments to

criminal sentencing provisions. For example, H.B. 86 revived the language provided in

former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4), requiring a trial court to

make specific findings when imposing consecutive sentences. In addition, H.B. 86

reduced the maximum prison term for many third-degree felonies from five years to 36

months. As a result, we no longer apply the two-step analysis contained in the 2008

Kalish case to defendants sentenced after H.B. 86’s enactment. Rather, we apply R.C.

2953.08(G) and the clear and convincing standard to determine whether the sentence

is contrary to law. See e.g. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-

1891, ¶10; State v. Drobny, 8th Dist. Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2;

State v. Kinstle, 3rd Dist. Allen No. 1-11-45, 2012-Ohio-5952, ¶47; State v. Cochran,

10th Dist. Franklin No. 11AP-408, 2012-Ohio-5899, ¶52.

      {¶32} In reviewing a felony sentence, R.C. 2953.08(G) provides:

      {¶33} “(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.

      {¶34} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand




                                          9
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:

      {¶35} “(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;

      {¶36} “(b) That the sentence is otherwise contrary to law.”

      {¶37} The Eighth District recently stated in Venes, supra, at ¶20-21:

      {¶38} “It is important to understand that the ‘clear and convincing’ standard

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it

clear that ‘(t)he appellate court’s standard for review is not whether the sentencing

court abused its discretion.’ As a practical consideration, this means that appellate

courts are prohibited from substituting their judgment for that of the trial judge.

      {¶39} “It is also important to understand that the clear and convincing standard

used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial

judge must have clear and convincing evidence to support its findings. Instead, it is the

court of appeals that must clearly and convincingly find that the record does not

support the court’s findings. In other words, the restriction is on the appellate court, not

the trial judge. This is an extremely deferential standard of review.”

      {¶40} Although trial courts have full discretion to impose any term of

imprisonment within the statutory range, they must consider the sentencing purposes in

R.C. 2929.11 and the guidelines contained in R.C. 2929.12.




                                            10
      {¶41} H.B. 86 amended R.C. 2929.11, which now states:

      {¶42} “(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.”

      {¶43} “However, there is still no ‘mandate’ for the sentencing court to engage in

any factual findings under R.C. 2929.11 or R.C. 2929.12.” State v. Jones, 12th Dist.

No. Butler CA2012-03-049, 2013-Ohio-150, ¶49, citing State v. Rose, 12th Dist. No.

Butler CA2011-11-214, 2012-Ohio-5607, ¶78; State v. Putnam, 11th Dist. Lake No.

2012-L-026, 2012-Ohio-4891, ¶9.         “Rather, the trial court still has discretion to

determine whether the sentence satisfies the overriding purpose of Ohio’s sentencing

structure.” Jones at ¶49; See R.C. 2929.12 (which provides a nonexhaustive list of

factors a trial court must consider when determining the seriousness of the offense and

the likelihood that the offender will commit future offenses.)

      {¶44} In this case, appellant was sentenced after H.B. 86 was enacted. Thus,

H.B. 86 applies here. Therefore, this court should review the trial court’s sentence

under H.B. 86 to determine if it is clearly and convincingly contrary to law. See Venes,




                                            11
supra, at ¶10; Kinstle, supra, at ¶47; Cochran, supra, at ¶52. Thus, in light of H.B. 86, I

believe my colleagues improperly apply Kalish, an outdated plurality opinion.

      {¶45} In light of R.C. 2929.11, in both cases at bar, the trial courts improperly

presumed that appellant needed to be placed in prison per the presumption, clearly an

erroneous application of law and contrary to its stated intent as there was no legislative

presumption. The courts then placed the burden on appellant to disprove or overcome

the presumption so that she may be placed in the available bed at the treatment facility.

Thus, this writer believes the trial courts applied the wrong law and, under the

majority’s viewpoint, abused their discretion, see e.g. State v. Ferranto, 112 Ohio St.

667, 676-678 (1925), because there is no compelling argument or reason in the record

that appellant was not amenable to treatment. In fact, pursuant to the Recommended

Case Plan, treatment was recommended and a bed was available. In addition, not only

did the trial courts abuse their discretion, they also failed to follow the mandate under

H.B. 86.

      {¶46} “[I]n determining whether to impose a prison term as a sanction for a

felony of the third degree or a felony drug offense that is a violation of a provision of

Chapter 2925 of the Revised Code * * * the sentencing court shall comply with the

purposes and principles of sentencing under section 2929.11 of the Revised Code and

with section 2929.12 of the Revised Code.”          R.C. 2929.13(C).     As stated, “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.” R.C. 2929.11(A). A presumption of




                                           12
prison does not appear until the trial court addresses sentencing for first or second

degree felonies. See R.C. 2929.13(D).

      {¶47} The statute’s objective and intent is to keep dangerous criminals off the

street, while balancing Ohio’s financial deficits and an already overcrowded prison

system. The cost of not merging sentences and sentencing someone, like appellant, to

a longer sentence has a significant effect on our prison system and to the pocketbooks

of taxpayers and is contrary to the purposes espoused in H.B. 86. R.C. 2929.11.

Ohio’s prison population has ballooned in the past decade and it currently costs over

$23,000 per year to house an inmate in Ohio. The legislature has given us the tools,

as well as a mandate, to address these issues in passing H.B. 86.

      {¶48} In the instant matter, the Recommended Case Plan listed appellant’s

“criminal history” and “level of need” as being “low.” It was recommended that she

“would benefit from placement in the NEOCAP facility followed by intensive supervision

with the Adult Probation Department.” Although rehabilitation was recommended and a

facility was available to treat appellant, the courts below failed to follow the “principles

and purposes” of R.C. 2929.11, which, as stated, now provides under H.B. 86 that:

“[t]he 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.”              R.C. 2929.11(A).

(Emphasis added.)




                                            13
      {¶49} The very essence of H.B. 86 centers around the fact that treatment should

be available and given to low level offenders in a case such as this. The record is clear

and the evidence is unrebutted as to the disposition required.

      {¶50} For the foregoing reasons, I concur in part and dissent in part.




                                          14
