[Cite as State v. Sothen, 2017-Ohio-8033.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
SHANE SOTHEN                                 :       Case No. 17-CA-11
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     16 CR 320




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    September 29, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

HAWKEN FLANAGAN                                      KATHERINE L. WOLFE
Assistant Prosecuting Attorney                       Wolfe Law Group, LLC
20 South Second Street, 4th Floor                    1350 W. 5th Ave., Suite 124
Newark, Ohio 43055                                   Columbus, Ohio 43212
Licking County, Case No. 17-CA-11                                                      2

Baldwin, J.

         {¶1}   Defendant-appellant Shane Sothen appeals his sentence issued by the

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

                            STATEMENT OF THE FACTS AND CASE

         {¶2}   On December 1, 2015, during execution of a search warrant at appellant’s

residence, officers from the Central Ohio Drug Enforcement Task Force found a large

marijuana growing operation located within 1,000 feet of a school. The total weight of the

marijuana was 23,604 grams. Appellant indicated to the officers that he was growing

marijuana to help pay bills.

         {¶3}   On June 2, 2016 the Licking County Grand Jury indicted appellant on one

count of illegal cultivation of marijuana in violation of R.C. 2925.04(A)(C)(1)(5)(f), a felony

of the first degree, and one count of possession of marijuana in violation of R.C. 2925.11

(A)(C)(3)(f), a felony of the second degree. At his arraignment June 28, 2016, appellant

entered a plea of not guilty to the charges.

         {¶4}   Thereafter, on January 10, 2017, appellant withdrew his former not guilty

plea and entered a plea of guilty to both charges. The trial court found that the two counts

merged for purposes of sentencing and appellee elected to have the trial court sentence

appellant for possession of marijuana. Pursuant to a Judgment Entry filed on the same

date, appellant was sentenced to a mandatory eight year prison term, the maximum

sentence for a felony of the second degree, and ordered to pay a mandatory fine in the

amount of $15,000.00. Appellant’s driving privileges were suspended for a period of five

years.

         {¶5}   Appellant now appeals, raising the following assignment of error on appeal:
Licking County, Case No. 17-CA-11                                                        3


       {¶6}   I. THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CONTRARY

TO    LAW     WHEN      IT   ORDERED        APPELLANT        TO    SERVE      EIGHT     YEARS

INCARCERATION AND IMPOSED A $15,000.00 FINE, THE MAXIMUM PRISON

SENTENCE FOR FELONIES OF THE SECOND DEGREE.

                                                   I

       {¶7}   Appellant, in his sole assignment of error, appeals his maximum sentence.

Appellant specifically contends that there is not clear and convincing evidence in the

record supporting the sentence and that the sentence supports the purposes and

principles of sentencing set out under R.C. 2929.11 and 2929.12.

       {¶8}   In accordance with R.C. 2953.08(A)(1), appellant is entitled to appeal as of

right the maximum sentence imposed on his conviction. We review felony sentences

using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d

516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22. provides we may either increase, reduce,

modify, or vacate a sentence and remand for resentencing where we clearly and

convincingly find that either the record does not support the sentencing court's findings

under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence

is otherwise contrary to law.

       {¶9}   Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law. Clear and convincing evidence is that evidence

“which will provide in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954),
Licking County, Case No. 17-CA-11                                                    4

paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361

(1985). “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477 120 N.E.2d 118.

       {¶10} A trial court's imposition of a maximum prison term for a felony conviction is

not contrary to law as long as the sentence is within the statutory range for the offense,

and the court considers both the purposes and principles of felony sentencing set forth in

R.C. § 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State

v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16.

       {¶11} R.C. § 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes. Further,

the sentence imposed shall be “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 by similar offenders.” R.C. § 2929.11(B).

       {¶12} R.C. § 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. § 2929.11. The statute provides a

non-exhaustive 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.
Licking County, Case No. 17-CA-11                                                    5

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

the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,

845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the 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, citing Foster at ¶ 100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306.

       {¶14} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 13.

See also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1.

       {¶15} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

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

at ¶ 42. State v. Rutter, 5th Dist. Muskingum No. 2006–CA–0025, 2006–Ohio–4061.

Therefore, post-Foster, trial courts are still required to consider the general guidance

factors in their sentencing decisions.

       {¶16} There is no requirement in R.C. § 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431, 655 N.E.2d 820(4th

Dist. 1995); State v. Gant, 7th Dist. Mahoning No. 04 MA 252, 2006–Ohio–1469, at ¶ 60

(nothing in R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty
Licking County, Case No. 17-CA-11                                                     6

on the trial court to set forth its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166,

586 N.E.2d 94 (1992); State v. Woods, 5th Dist. Richland No. 05 CA 46, 2006–Ohio–

1342, ¶ 19 (“... R.C. 2929.12 does not require specific language or specific findings on

the record in order to show that the trial court considered the applicable seriousness and

recidivism factors”). (Citations omitted).

       {¶17} Appellant asserts that he should not have been sentenced to the maximum

sentence because he “remained a law-abiding citizen without incident from the date of

his release from incarceration.” He further notes that he turned to illegal conduct to

support his family when his girlfriend’s health declined significantly and that he was

remorseful.

       {¶18} We find, in the case sub judice, the trial court considered and applied the

factors set forth in R.C. 2929.11 and 2929.12 in sentencing appellant to the maximum

prison sentence. At the hearing, there was discussion on the record that appellant had

been convicted of illegal cultivation once before. As noted by the trial court on the record:

       {¶19} “Well, Mr. Sothen, the Court’s considered the purposes and principles of

sentencing set out under Section 2929.11, as well as the seriousness and recidivism

factors set out under Section 2929.12, and I would say you probably hit them all as far as

that goes.

       {¶20} Mr. Sothen, you were convicted of illegal cultivation actually, I believe, within

a very short distance from where this was located in 2012. Got released early from prison

on judicial release. By the monitoring of your electric and water usage at your residence,

they could show that as soon as you were released from supervision on judicial release

your electric and water bills went back up. Actually, if you’d served your term, which was
Licking County, Case No. 17-CA-11                                                        7


only four years, you should have been in prison until October of 2016, so really just a few

months ago.

       {¶21} Instead you were granted judicial release and actually terminated early from

supervision.”

       {¶22} Sentencing Transcript at 20. The trial court found that appellant was not

genuinely remorseful and that appellant was a “professional drug dealer.” Sentencing

Transcript at 21. We find that the record clearly and convincingly supports the trial court’s

imposition of the maximum sentence on appellant.

       {¶23} Appellant also maintains that the trial court should not have imposed the

maximum $15,000.00 fine on him because he was indigent. Appellant notes that he was

found indigent for purposes of the trial court appointing counsel to represent him.

Appellant had filed an affidavit of indigency on June 27, 2016.

       {¶24} In State v. Webb, 5th Dist. Richland No. 14–CA–85, 2015-Ohio-3318, 2015

WL 4899511, this Court held as follows at paragraphs 23-24:

                Further, Ohio law does not prohibit a court from imposing a fine on

       an “indigent” defendant. That is, the filing of an affidavit of indigency does

       not automatically entitle a defendant to a waiver of a mandatory fine. State

       v. Knox, 8th Dist. Cuyahoga Nos. 98713 and 98805, 2013-Ohio-1662 [2013

       WL 1791391], ¶ 36. *509 Under Ohio law, a trial court must impose a

       mandatory fine unless (1) the offender files an affidavit of indigency prior to

       sentencing, and (2) “the trial court finds that the offender is an indigent

       person and is unable to pay the mandatory fines.” State v. Gipson, 80 Ohio

       St.3d 626, 634, 687 N.E.2d 750 (1998). In making its indigency
Licking County, Case No. 17-CA-11                                                        8


       determination, the court must consider both the offender's present and

       future ability to pay the fine. R.C. § 2929.19(B)(5).

              Additionally, the trial court need not make an “affirmative finding that

       an offender is able to pay a mandatory fine.” Id. at 635 [687 N.E.2d 750].

       Instead, “the burden is upon the offender to affirmatively demonstrate that

       he or she is indigent and is unable to pay the mandatory fine.” Id. We review

       the trial court's decision to impose a fine on an indigent defendant for an

       abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-

       Ohio-3002 [2013 WL 3583030], ¶ 5. An abuse of discretion implies that the

       trial court's attitude is unreasonable, arbitrary, or unconscionable.

       Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶25} R.C. 2929.19(B)(5) provides that “[b]efore imposing a financial sanction

under section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised

Code, the court shall consider the offender's present and future ability to pay the amount

of the sanction or fine.”

       {¶26} At the sentencing hearing, the trial court declined to fine appellant indigent

for the purpose of the fine based on the value of property that appellant appeared to own.

The trial court stated that appellant had told probation officers that he owned apartments

and that investigating detectives had noted that appellant owned a number of vehicles.

We find that the trial court considered appellant’s ability to pay prior to imposing the fine

and that the trial court did not abuse its discretion in fining appellant $15,000.00.

       {¶27} Appellant’s sole assignment of error is, therefore, overruled.
Licking County, Case No. 17-CA-11                                            9


      {¶28} Accordingly, the judgment of the Licking County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Earle Wise, J. concur.
