[Cite as State v. Robinson, 2013-Ohio-2893.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                     Plaintiff-Appellee        :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. CT2012-0005
CASEY ROBINSON                                 :
                                               :
                    Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Muskingum
                                                   County Court of Common Pleas, Case No.
                                                   CR2012-0200

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            July 1, 2013



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

RONALD WELCH                                       VALERIE WIGGINS
27 North Fifth Street                              P.O. Box 116
Zanesville, OH 43701                               Roseville, OH 43777-0116
[Cite as State v. Robinson, 2013-Ohio-2893.]


Gwin, P.J.

        {¶1}     Defendant-appellant Casey J. Robinson [“Robinson”] appeals his

sentences on robbery a felony of the third degree in violation of R.C. 2911.02, with a

firearm specification pursuant to R.C. 2941.145, entered after a negotiated plea in the

Muskingum County Court of Common Pleas.

                                         Facts and Procedural History

        {¶2}     Robinson was indicted on the following: Count 1) Aggravated Robbery, a

felony of the first degree with a firearm specification; Count 2) Theft (less than $1,000),

a first-degree misdemeanor; Counts 3 and 4) Felonious Assault, both felonies of the

second degree.

        {¶3}     On December 3, 2012, pursuant to a written plea agreement, Robinson

withdrew his former pleas of not guilty and entered a plea of "guilty" to an amended

Count 1, to-wit: Robbery, a felony of the third degree with a firearm specification. In

exchange, the state agreed not to make a recommendation and to leave sentencing to

the discretion of the Court. The State further agreed to Nolle Counts 2, 3, and 4 at the

time of sentencing.

        {¶4}     On January 14, 2013, Robinson returned to court for sentencing. The

Court then ordered Robinson serve a mandatory prison term of three years on the

firearm specification and a prison term of 30 months on the robbery conviction. The

sentences were ordered to be served consecutively. The Court further informed

Robinson that he was subject to a mandatory period of post release control for 3 years

upon his release from prison.
Muskingum County, Case No. CT2012-0005                                                       3

                                        Assignment of Error

       {¶5}   Robinson raises one assignment of error,

       {¶6}   “I.   THE      TRIAL      COURT        VIOLATED        THE      APPELLANT'S

CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT SENTENCED

THE APPELLANT, A FIRST-TIME FELONY OFFENDER, TO A NEAR- MAXIMUM

PENALTY.”

                                              Analysis

       {¶7}   Robinson contends that the trial court abused its discretion by sentencing

him to serve 30 months in prison for his robbery conviction.

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

the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470 as it relates to the remaining sentencing statutes and

appellate review of felony sentencing. See, State v. Snyder, 5th Dist. No. 2008-CA-25,

2008-Ohio-6709, 2008 WL 5265826.

       {¶9}   In Kalish, the Court discussed the affect of the Foster decision on felony

sentencing. The Court stated that, in Foster, the Ohio Supreme 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,¶¶1 and 11, 896 N.E.2d 124, citing Foster at ¶100, See

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

Firouzmandi, 5th Dist. No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175.
Muskingum County, Case No. CT2012-0005                                                   4

      {¶10} “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; State

v. Firouzmandi, supra at ¶29.

      {¶11} “Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised

judicial fact-finding portions of the sentencing scheme, an appellate court remains

precluded from using an abuse-of-discretion standard of review when initially reviewing

a defendant's sentence. Instead, 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).” Kalish at ¶14.

      {¶12} Therefore, Kalish holds that, in reviewing felony sentences and applying

Foster to the remaining sentencing statutes, the appellate courts must use a two-step

approach. “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 in imposing the term of imprisonment shall be reviewed under an

abuse of discretion standard.” Kalish at ¶4, State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470.

      {¶13} The Supreme Court held, in Kalish, that the trial court's sentencing

decision was not contrary to law. “The trial court expressly stated that it considered the
Muskingum County, Case No. CT2012-0005                                                   5


purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12.

Moreover, it properly applied post-release control, and the sentence was within the

permissible range. Accordingly, the sentence is not clearly and convincingly contrary to

law.” Kalish at ¶18. The Court further held that the trial court “gave careful and

substantial deliberation to the relevant statutory considerations” and that there was

“nothing in the record to suggest that the court's decision was unreasonable, arbitrary,

or unconscionable.” Kalish at ¶20.

       {¶14} In the case at bar, Robinson pled guilty and was convicted of a felony of

the third degree. Sentences that a court can impose are nine, twelve, eighteen, twenty-

four, thirty, or thirty-six months. R.C. 2929.14(A)(3)(b). Robinson was sentenced to thirty

months.

       {¶15} Upon review, we find that the trial court's sentencing on the charge

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised

Code and advised Robinson regarding post release control. Therefore, the sentence is

not clearly and convincingly contrary to law.

       {¶16} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶4; State v.

Firouzmandi, supra at ¶40.

       {¶17} 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.
Muskingum County, Case No. CT2012-0005                                                 6

State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist.

No. 05CA815, 2006-Ohio-2753, ¶¶7-8. Therefore, post-Foster, trial courts are still

required to consider the general guidance factors in their sentencing decisions.

       {¶18} 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(4th Dist.

1995); State v. Gant, 7th Dist. 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 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. Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court

was not required to address each R.C. 2929.12 factor individually and make a finding as

to whether it was applicable in this case), State v. Woods, 5th Dist. 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).

       {¶19} Where the record lacks sufficient data to justify the sentence, the court

may well abuse its discretion by imposing that sentence without a suitable explanation.

Where the record adequately justifies the sentence imposed, the court need not recite

its reasons. In other words, an appellate court may review the record to determine

whether the trial court failed to consider the appropriate sentencing factors. State v.

Firouzmandi, 5th Dist No. 2006-CA41, 2006-Ohio-5823 at ¶ 52.

       {¶20} Accordingly, appellate courts can find an “abuse of discretion” where the

record establishes that a trial judge refused or failed to consider statutory sentencing
Muskingum County, Case No. CT2012-0005                                                  7

factors. Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342(1st Dist.1978). An

“abuse of discretion” has also been found where a sentence is greatly excessive under

traditional concepts of justice or is manifestly disproportionate to the crime or the

defendant. Woosley v. United States, 478 F.2d 139, 147(8th Cir. 1973). The imposition

by a trial judge of a sentence on a mechanical, predetermined or policy basis is subject

to review. Woosley, supra at 143-145. Where the severity of the sentence shocks the

judicial conscience or greatly exceeds penalties usually exacted for similar offenses or

defendants, and the record fails to justify and the trial court fails to explain the

imposition of the sentence, the appellate court's can reverse the sentence. Woosley,

supra at 147. This by no means is an exhaustive or exclusive list of the circumstances

under which an appellate court may find that the trial court abused its discretion in the

imposition of sentence in a particular case. State v. Firouzmandi, supra.

       {¶21} In the case at bar, the court had the benefit of a pre-sentence investigation

report. Robinson was twenty-years old at the time of sentencing. He has never held a

full-time or part-time job. (Sent. T. at 6). He has a prior assault conviction in March

2011. (Id.). Further, the court noted,

       [THE COURT]:         Aggravated menacing July of 2011, allegations there

       you went to a lady’s house and left three bullets in the bedroom and told

       her next time they were going in her head, sound accurate?

       [ROBINSON]:          Yes, sir.

       [THE COURT]:         Drug abuse and resisting arrest, 2012?

       [ROBINSON]:          Yes sir.
Muskingum County, Case No. CT2012-0005                                                  8


       [THE COURT]:         35 total adjudication in Muskingum County as a

       juvenile?

       [ROBINSON]:          Yes sir.

       [THE COURT]:         Looks like you posted bond in this case, and then

       revoked because you tested positive for THC?

       [ROBINSON]:          Yes, sir.

                                           ***

       [THE COURT]:         Mr. Robinson, the three years [on the firearm

       specification] are mandatory, so you have to serve those. The 30-months

       is not mandatory time. At some point during that 30-month period, it’s

       potential that you could file for judicial release...and go through a program,

       some other possible in-house program.

Sent. T. at 6-7; 10).

       {¶22} In the sentencing entry filed January 16, 2013, the trial court noted

specifically that it had considered the principles and purposes of sentencing under R.C.

2929.11 and balanced the seriousness and recidivism factors under R.R. 2929.12.

       {¶23} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor. We find nothing in the record of Robinson's case to suggest that

his sentence was based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment.
Muskingum County, Case No. CT2012-0005                                              9


      {¶24} Accordingly, we hold the thirty-month sentence in this matter was not

based on the consideration of improper factors and was not unreasonable, arbitrary or

unconscionable. We further hold said sentence is not contrary to law.

      {¶25} Robinson’s sole assignment of error is overruled.

      {¶26} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur



                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. JOHN W. WISE


                                            _________________________________
                                            HON. CRAIG R. BALDWIN
WSG:clw 0617
[Cite as State v. Robinson, 2013-Ohio-2893.]


             IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
                       Plaintiff-Appellee      :
                                               :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
CASEY ROBINSON                                 :
                                               :
                                               :
                        Defendant-Appellant    :       CASE NO. CT2012-0005




        For the reasons stated in our accompanying Memorandum-Opinion, the decision

of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed. Costs to

appellant.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. JOHN W. WISE


                                                   _________________________________
                                                   HON. CRAIG R. BALDWIN
