[Cite as State v. Cook, 2012-Ohio-1555.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-COA-023
EMILY A. COOK                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland County
                                                   Court of Common Pleas, Case No. 09-CRI-
                                                   088

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            April 3, 2012



APPEARANCES:


For Plaintiff-Appellee                             For Defendant-Appellant

RAMONA FRANCESCONI ROGERS
Ashland County Prosecutor
ANDREW N. BUSH                                     TIMOTHY E. POTTS
Assistant Prosecuting Attorney                     GOOD & POTTS
110 Cottage Street                                 10 East Main Street
Ashland, OH 44805                                  Ashland, OH 44805
[Cite as State v. Cook, 2012-Ohio-1555.]


Gwin, P.J.

        {1}      On December 2009, appellant Emily A. Cook entered negotiated pleas to:

(1) attempt (illegal manufacture of drugs), in violation of R.C. 2923.02(A) and

2925.04(A), a felony of the third degree; and (2) possessing criminal tools, in violation of

R.C.2923.24(A), a felony of the fifth degree.

        {2}      At sentencing, the trial court, after considering the provisions of R.C.

Chapter 2929, the circumstances of the offenses committed, the information contained

in the pre-sentence investigation, and the information furnished by the parties to the

case, primarily sentenced Cook to the following: (1) Count I, attempt (illegal

manufacture of drugs), a felony of the third degree, one hundred eighty (180) days in

the Ashland County Jail with permission to participate in the Work Release Program so

that Cook may obtain and maintain employment; probation supervision through the

Adult Parole Authority for two (2) years, with the first three (3) months being intensive

supervision; eighty (80) hours of community service; treatment at the Ashland County

Council on Alcoholism and Drug Abuse (ACCADA); random drug and alcohol

monitoring/testing; a fine of Five Thousand Dollars ($5,000.00) plus court costs; and

suspension of Cook’s operator's license for two (2) years; and (2) as to Count II,

possessing criminal tools, a felony of the fifth degree, one hundred eighty (180) days in

the Ashland County Jail, to be served concurrently to the jail sentence set forth in Count

I.

        {3}      In addition, the trial court ordered that if Cook violated the conditions of

sentencing she would be ordered to serve two (2) years in prison with regard to the

attempt (illegal manufacture of drugs) offense, and twelve (12) months in prison with
Ashland County, Case No. 2011-COA-023                                                   3


regard to the possessing criminal tools offense. The trial court reserved jurisdiction to

make specific findings and orders concerning whether, if imposed, the prison terms

would be served concurrently or consecutively to one another.

      {4}      In May 2010, Cook was alleged to have violated the terms and conditions

of her community control, specifically, that she used Soboxone, a prescription

medication that was not lawfully prescribed to her. After considering the purposes and

principles of felony sentencing and information furnished to the trial court at the

sanctions hearing, the trial court ordered that: (1) Cook remain on community control;

(2) Cook should be screened for the CROSSWAEH Community Correctional Facility;

and (3) Cook should continue to attend a drug abuse program while at the Ashland

County Jail.

      {5}      In April 2011, Cook was again alleged to have violated the terms and

conditions of her community control. In May 2011, Cook stipulated that she had violated

the conditions of his community control. The Court accepted appellant's admission and

pleas of guilty and found her to be in violation of the terms and conditions of her

community control. The trial court set the matter for sentencing in June 2011.

      {6}      At the June 2011 sentencing hearing, after hearing statements from Cook

and her legal counsel, the trial court noted that (1) Cook has been a frequent visitor to

the court, because of her frequent, legitimate requests for driving privileges and her

community control violations; and (2) Cook completed the CROSSWAEH program, but

tested positive for drugs shortly thereafter. As a result, the trial court determined that

Cook was no longer amenable to community control. In addition, based on her conduct

while on community control, the nature of the community control violations, and her
Ashland County, Case No. 2011-COA-023                                                   4


criminal history, the trial court determined that concurrent prison sentences were not

adequate to reflect the seriousness of Cook’s conduct or to protect the public. The trial

court sentenced Cook on Count I, attempt (illegal manufacture of drugs), two (2) years

in prison; Count II, possessing criminal tools, twelve (12) months in prison, to be served

consecutively to the prison sentence set forth for Count I; and (3) court costs. The trial

court further ordered that Cook receive credit for the two hundred seventy-four (274)

days she spent in Ashland County Jail.

      {7}    Cook has timely appealed raising two assignments of error:

      {8}    “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

ERRED BY NOT CORRECTLY CALCULATING DEFENDANT'S/APPELLANT'S JAIL

TIME CREDIT IN ACCORDANCE WITH OHIO REVISED CODE SECTION 2967.191,

THEREFORE, IN VIOLATION OF DEFENDANT'S/APPELLANT'S FOURTEENTH

AMENDMENT RIGHT TO EQUAL PROTECTION OF THE LAWS.

      {9}    “II. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED       CONSECUTIVE         SENTENCES         UPON     DEFENDANT/APPELLANT

PURSUANT       TO    OHIO     REVISED      CODE      SECTION      2929.14(E)(4);    SAID

CONSECUTIVE SENTENCES WERE CLEARLY AND CONVINCINGLY CONTRARY

TO LAW AND/OR AN ABUSE OF THE TRIAL COURT'S DISCRETION.”

                                               I.

      {10}   Cook argues that the trial Court did not give her proper jail time credit for

time spent at CROSSWAEH, a community correctional facility. We disagree.

      {11}   At the March 22, 2010 sentencing, the trial court sentenced Cook to 180

days in jail. (Sent. T. March 22, 2010 at 16). By Judgment Entry filed June 24, 2010 the
Ashland County, Case No. 2011-COA-023                                                        5


trial court ordered Cook be transported to begin the CROSSWAEH program on June

29, 2010. By Judgment Entry filed March 25, 2011, which granted Cook limited driving

privileges, the trial court noted that Cook completed the CROSSWAEH program on

December 10, 2010. Thus, between June 29, 2010 and December 10, 2010, Cook

spent 165 days in the CROSSWAEH program. By Judgment Entry filed June 30, 2011,

the trial court granted Cook 270 days of jail credit.

       {12}   Clearly, Cook did in fact receive credit for both the time she had spent in

the Ashland County Jail and her time in the CROSSWAEH program.

       {13}   Cook’s first assignment of error is overruled.

                                                  II.

       {14}   Cook argues in her second assignment of error that the trial court's

consecutive sentence was either contrary to law or was an abuse of discretion.

       {15}   Recently 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, 2080-Ohio-6709, 2008 WL 5265826.

       {16}   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 at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100,
Ashland County, Case No. 2011-COA-023                                                        6

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.

       {17}   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 at ¶ 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, supra.

       {18}   “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.

       {19}   “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.
Ashland County, Case No. 2011-COA-023                                                     7

       {20}   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.

       {21}   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

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.

       {22}   In the case at bar, Cook was convicted of a felony of the third degree and

a felony of the fifth degree. For a violation of a felony of the third degree, the potential

sentence that a court can impose is one, two, three, four or five years. For a violation of

a felony of the fifth degree, the potential sentence that a court can impose is six, seven,

eight, nine, ten, eleven, or twelve months. Cook was sentenced to a period of two years
Ashland County, Case No. 2011-COA-023                                                       8


for the felony of the third degree and a period of 12 months for the felony of the fifth

degree.

       {23}   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 and appellant agrees 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 appellant regarding post-release control. Therefore, the sentence is

not clearly and convincingly contrary to law.

       {24}   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. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.

       {25}   Under Ohio law, judicial fact-finding is no longer required before a court

imposes consecutive or maximum prison terms. See State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,

846 N.E.2d 1. Instead, the trial court is vested with discretion to impose a prison term

within the statutory range. See Mathis, at ¶ 36. In exercising its discretion, the trial court

must “carefully consider the statutes that apply to every felony case [including] R.C.

2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides

guidance in considering factors relating to the seriousness of the offense and recidivism

of the offender [and] statutes that are specific to the case itself.” Id. at ¶ 37, 846 N.E.2d

1. Thus, post-Foster, “there is no mandate for judicial fact-finding in the general
Ashland County, Case No. 2011-COA-023                                                     9

guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42.

State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061, 2006 WL 2257068; State

v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753, 2006 WL 2257068, ¶ 7-8.

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

factors in their sentencing decisions.

       {26}      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 (1995), 101 Ohio App.3d 428, 431,

655 N.E.2d 820, (4th Dist.); State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469,

2006 WL 771790, ¶ 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, 2005 WL 3254527, ¶ 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).

       {27}      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. State v. Middleton, 8th Dist. No. 51545, 1987 WL 5476 (Jan. 15, 1987). 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, supra

at ¶ 52.
Ashland County, Case No. 2011-COA-023                                                 10


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

record establishes that a trial judge refused or failed to consider statutory sentencing

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 courts 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.

      {29}   In the case at bar, 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 appellant's

case to suggest that her sentence was based on an arbitrary distinction that would

violate the Due Process Clause of the Fifth Amendment.

      {30}   In the case at bar, the trial court conducted a sentencing hearing in open

court. Cook concedes that the trial court considered statements from her and her legal

counsel; the overriding purposes of felony sentencing; the statutory factors set forth in
Ashland County, Case No. 2011-COA-023                                                    11


R.C. 2929.12 and 2929.13; the Pre-Sentence Investigation report, which indicated that

appellant had a prior criminal history, and had a history of substance abuse; had been

previously violated in the present case and granted the opportunity for in-house

treatment; and the seriousness and recidivism factors, before deciding on a prison term.

       {31}    It appears to this Court that the trial court's statements at the sentencing

hearing were guided by the overriding purposes of felony sentencing to protect the

public from future crime by the offender and others and to punish the offender. R.C.

2929.11.

       {32}    Based on the record, the transcript of the sentencing hearing and the

subsequent judgment entry, this Court cannot find that the trial court acted

unreasonably, arbitrarily, or unconscionably, or that the trial court violated Cook's rights

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

appellant. Further, the sentence in this case is not so grossly disproportionate to the

offense as to shock the sense of justice in the community.

       {33}    Further the Supreme Court of Ohio held in State v. Hodge, 128 Ohio St.3d

1, 2010–Ohio–6320,

                    For all the foregoing reasons, we hold that the decision of the

           United States Supreme Court in Oregon v. Ice does not revive Ohio's

           former      consecutive-sentencing      statutory   provisions,    R.C.

           2929.14(E)(4) and 2929.41(A), which were held unconstitutional in

           State v. Foster. Because the statutory provisions are not revived, trial

           court judges are not obligated to engage in judicial fact-finding prior
Ashland County, Case No. 2011-COA-023                                                  12


         to imposing consecutive sentences unless the General Assembly

         enacts new legislation requiring that findings be made.

                  The trial court in this case did not err in imposing consecutive

         sentences without applying R.C. 2929.14(E)(4) and 2929.41(A), and

         defendants such as Hodge who were sentenced without application

         of the statutes are not entitled to resentencing.

      {34}      Id. at ¶ 39-40. See, State v. Fry, 5th Dist. No. 10CAA090068, 2011-Ohio-

2022 at ¶ 16-17.

      {35}      Upon review, we find neither error as a matter of law in the trial court

sentencing Cook to consecutive sentences nor any abuse of discretion.

      {36}      Cook’s second assignment of error is overruled.

      {37}      For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Ashland County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur



                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. JOHN W. WISE


                                               _________________________________
                                               HON. JULIE A. EDWARDS
WSG:clw 0326
[Cite as State v. Cook, 2012-Ohio-1555.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
EMILY A. COOK                                    :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2011-COA-023




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

judgment of the Court of Common Pleas, Ashland County, Ohio, is affirmed. Costs to

appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. JOHN W. WISE


                                                     _________________________________
                                                     HON. JULIE A. EDWARDS
