[Cite as State v. Foster, 2011-Ohio-2480.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10-COA-033
DUSTIN M. FOSTER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from Ashland County Court of
                                               Common Pleas, Case No. 10-CRI-076


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         May 20, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


RAMONA FRANCESCONI ROGERS                       DOUGLAS A. MILHOAN
Ashland County Prosecutor                       P.O. Box 347
110 Cottage Street, Third Floor                 Middlebranch, Ohio 44652
Ashland, Ohio 44805

PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 10-COA-033                                                     2

Hoffman, J.


       {¶1}   Defendant-appellant Dustin M. Foster appeals his sentence entered by the

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

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 19, 2010, Appellant struck two men in the back of the head with a

hammer during a robbery. The men had to be lifeflighted to Cleveland Metro Hospital.

Both men sustained fractured skulls. During the police investigation of the incident,

Appellant was observed on surveillance video with the victims at a local bar in Ashland,

Ohio. The investigating officers contacted Appellant urging Appellant to turn himself in,

but Appellant fled to the State of Pennsylvania.

       {¶3}   Initially, Appellant claimed self-defense.      However, Appellant later

admitted to seeing one of the victims with a large sum of money in his wallet. He lured

them to a home after leaving the bar, where he obtained a hammer and attacked them

from behind. Appellant stole money from the victim’s wallet and left the two victims in

the alley.

       {¶4}   On July 27, 2010, Appellant entered a plea of guilty to two counts of

felonious assault, both felonies of the second degree. On September 20, 2010, the trial

court sentenced Appellant to sixteen years in prison.

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

       {¶6}   “I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE

IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.”

       {¶7}   Based on the record, this Court cannot find the trial court acted

unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant's
Ashland County, Case No. 10-COA-033                                                     3


rights to due process under the Ohio and United States Constitutions in its sentencing.

Further, the sentence in this case is not so grossly disproportionate to the offense as to

shock the sense of justice in the community.

       {¶8}   In his assignment of error, Appellant contends his sentence violates the

general assembly's intent to minimize the unnecessary burden on state and local

government resources.

       {¶9}   In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second

District considered this same issue. In rejecting the argument, the court stated,

       {¶10} “Ober is correct that the ‘sentence shall not impose an unnecessary

burden on state or local government resources.’ R.C. 2929.19(A). According to criminal

law experts, this resource principle ‘impacts on the application of the presumptions also

contained in this section and upon the exercise of discretion.’ Griffin & Katz, Ohio

Felony Sentencing Law (1996-97), 62. Courts may consider whether a criminal sanction

would unduly burden resources when deciding whether a second-degree felony

offender has overcome the presumption in favor of imprisonment because the resource

principle is consistent with the overriding purposes and principles of felony sentencing

set forth in R.C.2929.11. Id.”

       {¶11} The Ober court concluded,

       {¶12} “[a]lthough resource burdens may be a relevant sentencing criterion, R.C.

2929.13(D) does not require trial courts to elevate resource conservation above the

seriousness and recidivism factors. Imposing a community control sanction on Ober

may have saved state and local government funds; however, this factor alone would not

usually overcome the presumption in favor of imprisonment.” Id.
Ashland County, Case No. 10-COA-033                                                    4


      {¶13} R.C. 2929.13 governs sentencing guidelines for various specific offenses

and degrees of offenses. Subsection (A) states, in pertinent part:

      {¶14} “Except as provided in division (E), (F), or (G) of this section and unless a

specific sanction is required to be imposed or is precluded from being imposed pursuant

to law, a court that imposes a sentence upon an offender for a felony may impose any

sanction or combination of sanctions on the offender that are provided in sections

2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an

unnecessary burden on state or local government resources.”

      {¶15} As we noted in State v. Ferenbaugh, Ashland App. No. 03COA038, 2004-

Ohio-977 at paragraph 7, “[t]he very language of the cited statute grants trial courts

discretion to impose sentences. Nowhere within the statute is there any guideline for

what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, Ashland App. No.2008-

COA-036, 2009-Ohio-3105, this Court reviewed a similar claim. We found although

burdens on State resources may be a relevant sentencing criteria as set forth in R.C.

2929.13, state law does not require trial courts to elevate resource conservation above

seriousness and recidivism factors, Shull, at paragraph 22, citing State v. Ober (October

10, 1997), Greene App. No. 97CA0019, 1997 WL 624811.
Ashland County, Case No. 10-COA-033                                                 5


      {¶16} Upon review, we do not find the sentence imposed herein constituted an

unnecessary burden on state resources. The sole assignment of error is overruled.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

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


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
Ashland County, Case No. 10-COA-033                                                6


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


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
DUSTIN M. FOSTER                          :
                                          :
       Defendant-Appellant                :         Case No. 10-COA-033


       For the reason stated in our accompanying Opinion, the judgment of the Ashland

County Court of Common Pleas is affirmed. Costs to Appellant.




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


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
