[Cite as State v. Backie, 2011-Ohio-5801.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
v.                                             :
                                               :       Case No. 2011-CA-00060
TRAVONCE RASHAWN BACKIE                        :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 2010-
                                                   CR-1821(A)

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            November 7, 2011


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN FERRERO                                       GEORGE URBAN
STARK COUNTY PROSECUTOR                            116 Cleveland Ave N.W.
BY: LEWIS GUARNIERI                                Suite 808
110 Central Plaza S., Ste. 510                     Canton, OH 44702
Canton, OH 44702
[Cite as State v. Backie, 2011-Ohio-5801.]


Gwin, P.J.

        {¶ 1} Defendant–appellant Travonce Backie appeals from his convictions and

sentences in the Stark County Court of Common Pleas on one count of aggravated

burglary with a firearm specification in violation of R.C. 2911.11(A)(2) and R.C.

2941.145. Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶ 2} In January 2011 the Stark County Grand Jury returned an indictment

charging appellant with one count each of aggravated burglary and aggravated robbery,

with attendant firearm specifications for each offense as a result of a home invasion.

        {¶ 3} Shortly after eight o'clock during the night of September 20, 2010,

Samantha Coons was preparing to go to bed inside her Canton residence. Ernestine

Corinda Mullen, a neighbor who needed a place to stay temporarily, was asleep

downstairs, and Coons had just put her young toddler to bed with his father, Dennis

Knight. Knight was Coons's boyfriend and was already asleep in their bedroom. Mullen

was asleep downstairs and was awaken by a knock on the back door. As she went to

the back door, Mullen saw the door being kicked opened and three masked men rush

inside. Mullen turned to run away and to alert Knight, but was struck in the back of the

head and knocked out.

        {¶ 4} Coons heard the door being kicked in and glass breaking, and thought it

might be her dog getting into some plates left on the dining room table. She therefore

went to the top of stairs and yelled at the dog. The dog, which was in the bedroom

under the bed, began barking.
Stark County, Case No. 2011-CA-00060                                                    3


      {¶ 5} Coons then saw three masked men come up the stairs, so she ran back

into the bedroom and attempted to shut the door and lock it. The men, however, were

able to overpower her, and come into the bedroom. As the men entered, they shouted

repeatedly that they were the Canton police. Afraid for herself and her child, Coons

started fighting with the first man who entered the bedroom. During the struggle with this

man, Coons was able to pull down the bandana “do-rag” that covered his face. Coons

immediately recognized this intruder as "Woody," who is William Appis. Coons shouted

out his name, and Woody turned and fled the scene. While Coons was struggling with

Woody, the other two men attended to Knight.

      {¶ 6} Awakened from his sleep, Knight immediately saw an automatic handgun

stuck in his face by one of the masked men, who then proceeded to strike him a couple

of times in the head with the barrel of the gun. The other masked intruder was armed

with a Taser, and was using it on the dog. Both men demanded to know where the

money was hidden. As the man armed with the gun attended to Knight, the other man

rifled through the night stand drawers looking for money. He eventually dumped out

Coons's purse and took the $350.00 that Coons had saved for Christmas shopping. As

the two men backed up to exit the room, the fan that was in the bedroom blew up the

bandana do-rag that was covering the face of the intruder armed with the handgun. A

lamp was on in the bedroom, as well as a small nightlight by the bed. Knight

immediately recognized this intruder as someone whom he knew- Travonce "Tre"

Backie, the appellant. Knight knew that appellant and Woody were friends, and so he

asked appellant, "How you going to rob me and my girl with my son in the bedroom?"

Appellant and the other individual fled from the bedroom.
Stark County, Case No. 2011-CA-00060                                                    4


       {¶ 7} Both Coons and Knight believed that Woody knew of the existence of the

Christmas money because he was at their house a day or so before this incident. On

that occasion Coons had asked Knight for money to pay their bills. Coons had gone to

the ATM to make a withdrawal from their account, only to find that there were

insufficient funds in the account. The two then discussed the necessity of using the

Christmas money- cash that they saved for Christmas shopping- to pay their bills, which

was kept upstairs in the bedroom. In addition, they were aware that appellant was a

friend of Woody.

       {¶ 8} Once the intruders left, Knight and Coons called 911 and checked on the

condition of Mullen, who was unconscious downstairs. Knight then called appellant

repeatedly, asking why he did it. Appellant responded that he didn't do it, so Knight

hung up on him. When the police arrived, both Knight and Coons told the police what

had happened, as well as the identity of both appellant and Appis. Appis ("Woody") was

a friend of theirs, and appellant had dated Coons's sister.

       {¶ 9} Both Appis and appellant had in fact been in their home before. The police

later showed Knight a photo array, from which Knight identified appellant as the armed

intruder who threatened to shoot him during the robbery.

       {¶ 10} Kenneth Higgins, a friend of Coons and Knight, was driving that night over

to their residence to visit. He parked his vehicle in the driveway and had just exited his

vehicle when he was confronted by two masked men racing from the residence of

Coons and Knight. One of the men was wearing a ski mask, while the other had his face

covered with something Higgins could not identify. He did not pay attention to this other

masked man since the one with the ski mask was pointing a gun in his face. The men
Stark County, Case No. 2011-CA-00060                                                       5


demanded that Higgins give them what he had in his pockets. As Higgins kept his

hands up in the air, the unarmed man went through Higgins's pockets and took his

wallet and cigarettes. The men then fled towards a neighbor's yard. His wallet was

eventually recovered in this neighbor's driveway.

         {¶ 11} Appellant presented an alibi defense through the testimony of Ashley

Myers. Myers testified that appellant was with her all day on September 20, and did not

leave her home until after 8:00 p.m. In addition, William [“Woody”] Appis testified on

appellant's behalf, admitting that he (Appis) was one of the intruders, but that appellant

was not one of the three men who had invaded the home.

         {¶ 12} The jury in this case returned a mixed verdict. It found appellant not guilty

of the aggravated robbery charge with the firearm specification, but guilty of the

aggravated burglary charge and guilty of the attendant firearm specification. The trial

court sentenced appellant to an aggregate prison term of thirteen years. Ten years for

the aggravated burglary, and a mandatory consecutive three-year term for the attendant

firearm specification. This sentence was also imposed consecutively with appellant’s

criminal sentence in a separate criminal case.1

         {¶ 13} Appellant has timely appealed raising the following two Assignments of

Error:

         {¶ 14} “I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

         {¶ 15} “II. THE TRIAL COURT'S SENTENCING OF APPELLANT TO MAXIMUM

AND CONSECUTIVE SENTENCES WAS CONTRARY TO LAW.”



         1
             State v. Backie, Stark County Court of Common Pleas Case No. 2010-CR-1422
Stark County, Case No. 2011-CA-00060                                                    6


                                               I.

      {¶ 16} In his First Assignment of Error, appellant argues that his convictions are

based upon insufficient evidence and are against the manifest weight of the evidence.

We disagree.

      {¶ 17} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, which requires a court of appeals to determine whether “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see

also McDaniel v. Brown (2010), --- U.S. ----, 130 S.Ct. 665, 673, 175 L.Ed.2d 582

(reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010-

Ohio-1017 at ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010-Ohio-

2720 at ¶68.

      {¶ 18} Jackson, thus establishes a two-step inquiry for considering a challenge to

a conviction based on sufficiency of the evidence. First, a reviewing court must consider

the evidence presented at trial in the light most favorable to the prosecution. Jackson,

443 U.S. at 319, 99 S.Ct. 2781. This means that a court of appeals may not usurp the

role of the finder of fact by considering how it would have resolved the conflicts, made

the inferences, or considered the evidence at trial. Id. Rather, when “faced with a record

of historical facts that supports conflicting inferences” a reviewing court “must presume

even if it does not affirmatively appear in the record that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson,
Stark County, Case No. 2011-CA-00060                                                     7

supra 443 U.S. 307, 99 S.Ct. 2781; see also, McDaniel, --- U.S. ----, 130 S.Ct. at 673-

674, 175 L.Ed.2d 582; United States v. Nevils (9th Cir 2010), 598 F.3d 1158, 1164.

      {¶ 19} Second, after viewing the evidence in the light most favorable to the

prosecution, the reviewing court must determine whether this evidence, so viewed, is

adequate to allow “any rational trier of fact [to find] the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781; State v.

Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89, 1997-Ohio-355, 684 N.E.2d 668; State v. Jenks (1991), 61 Ohio St.3d 259, 574

N.E.2d 492 superseded by State constitutional amendment on other grounds as stated

in State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668; See, also State v. Clay,

supra at ¶ 70.

      {¶ 20} This second step protects against rare occasions in which “a properly

instructed jury may * * * convict even when it can be said that no rational trier of fact

could find guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 317, 99 S.Ct. 2781.

More than a “mere modicum” of evidence is required to support a verdict. Id. at 320, 99

S.Ct. 2781, (rejecting the rule that a conviction be affirmed if “some evidence” in the

record supports the jury's finding of guilt). At this second step, however, a reviewing

court may not “‘ask itself whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt,’” Jackson at 318-319, 99 S.Ct. 2781, quoting Woodby

v. INS (1966), 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362, only whether “any”

rational trier of fact could have made that finding. Jackson at 319, 99 S.Ct. 2781; United

States v. Nevills, supra, 598 F.3d at 1164. Under Jackson, the assessment of the
Stark County, Case No. 2011-CA-00060                                                    8

credibility of witnesses is generally beyond the scope of review. Schlup v. Delo (1995),

513 U.S. 298, 330, 115 S.Ct. 851, 868; Wright v. West (1992), 505 U.S. 277, 296, 112

S.Ct. 2482, 2492.

      {¶ 21} Thus, the Jackson standard focus on whether any rational juror could

have convicted, looks to whether there is sufficient evidence which, if credited, could

support the conviction. Schlup v. Delo (1995), 513 U.S. 298, 330, 115 S.Ct. 851, 868.

The Court in Schlup made clear that, “the use of the word “could” focuses the inquiry

on the power of the trier of fact to reach its conclusion.” Id. As the Court further

explained, “the question whether the trier of fact has power to make a finding of guilt

requires a binary response: Either the trier of fact has power as a matter of law or it

does not...” Schlup, 513 U.S. at 330, 115 S.Ct. at 868. (Citations partially omitted); See

also, Sanborn v. Parker (6th Cir 2010), 629 F.3d 554, 578.

      {¶ 22} Finally, under the Jackson standard a reviewing court must consider all of

the evidence admitted by the trial court, regardless whether that evidence was

admitted erroneously. McDaniel, supra, --- U.S. ----, 130 S.Ct. at 672, 175 L.Ed.2d 582.

      {¶ 23} The Ohio Supreme Court elucidated the standard of review for a criminal

manifest weight challenge, as follows:

      {¶ 24} “The criminal manifest-weight-of-the-evidence standard was explained in

State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. In Thompkins, the

court distinguished between sufficiency of the evidence and manifest weight of the

evidence, finding that these concepts differ both qualitatively and quantitatively. Id. at

386, 678 N.E.2d 541. The court held that sufficiency of the evidence is a test of

adequacy as to whether the evidence is legally sufficient to support a verdict as a
Stark County, Case No. 2011-CA-00060                                                   9


matter of law, but weight of the evidence addresses the evidence's effect of inducing

belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose

evidence is more persuasive--the state's or the defendant's? We went on to hold that

although there may be sufficient evidence to support a judgment, it could nevertheless

be against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. ‘When a

court of appeals reverses a judgment of a trial court on the basis that the verdict is

against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and

disagrees with the factfinder's resolution of the conflicting testimony.’ Id. at 387, 678

N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d

652.

       {¶ 25} “Both C.E. Morris Co., 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578,

and Thompkins instruct that the fact-finder should be afforded great deference.

However, the standard in C.E. Morris Co. tends to merge the concepts of weight and

sufficiency. See State v. Maple (Apr. 2, 2002), 4th Dist. No. 01CA2605, 2002 WL

507530, fn. 1; State v. Morrison (Sept. 20, 2001), 10th Dist. No. 01AP-66, 2001 WL

1098086. Thus, a judgment supported by "some competent, credible evidence going to

all the essential elements of the case" must be affirmed. C.E. Morris Co. Conversely,

under Thompkins, even though there may be sufficient evidence to support a conviction,

a reviewing court can still re-weigh the evidence and reverse a lower court's holdings.

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541. Thus, the civil-manifest-

weight-of-the-evidence standard affords the lower court more deference then does the

criminal standard. See Barkley v. Barkley (1997), 119 Ohio App.3d 155, 159, 694
Stark County, Case No. 2011-CA-00060                                                     10

N.E.2d 989.” State v. Wilson, 713 Ohio St.3d 382, 387-88, 2007-Ohio-2202 at ¶ 25-26;

865 N.E.2d 1264, 1269-1270.

       {¶ 26} An appellate court may not merely substitute its view for that of the jury,

but must find that "the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered." State v.

Thompkins, supra, 78 Ohio St.3d at 387. (Quoting State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717, 720-721). Accordingly, reversal on manifest weight

grounds is reserved for "the exceptional case in which the evidence weighs heavily

against the conviction." Id.

       {¶ 27} In the case at bar, appellant essentially argues first that the only person to

identify him, Dennis Knight was not to be believed because his testimony at trial differed

from his statement to the police. Appellant argues that at trial Mr. Knight testified that

he was able to observe appellant’s face because a fan in the bedroom blew the

bandana from appellant’s face. However, appellant argues, Mr. Knight never told the

police about a fan in the bedroom. Appellant additionally posits that the jury should have

believed his alibi witness. Additionally, appellant contends that his conviction for the

firearm specification is based upon insufficient evidence and is against the manifest

weight of the evidence because the state failed to prove that the firearm was operable.

       {¶ 28} A review of the record reveals that Mr. Knight never wavered in his

description of the events that occurred in the home on the night in question in one

important respect. He consistently told the police and testified at trial that the bandana

or mask appellant had used to cover his face blew upward revealing appellant’s face.

Further, Mr. Knight knew appellant from the past and immediately recognized him.
Stark County, Case No. 2011-CA-00060                                                     11


       {¶ 29} In addition, the jury could reasonably have decided to believe the victims

rather than appellant's alibi witness. The jury is able to observe the witnesses testify and

can evaluate body language, voice inflection, and facial expressions. These are

valuable tools for assessing credibility; tools which are not available to an appellate

court working from the record alone. As such, a jury's assessment of credibility is

entitled to considerable deference. See Thompkins, supra, at 390. Although appellant

presented an alibi concerning his whereabouts on the day of the crime, the jury must

consider all of the evidence presented by the state as well as other defense witnesses

in determining the validity of the alibi. In doing so in this case, we do not find the jury

lost its way in reviewing the conflicting evidence and finding appellant guilty of

aggravated burglary. See, State v. McCall (Oct. 10, 2001), Muskingum App. No.

01CA23.

       {¶ 30} We conclude that the evidence was sufficient to support appellant’s

identification as one of the individuals who invaded the home as well as to support a

conviction for aggravated burglary and the jury, in resolving conflicts in the evidence, did

not clearly lose its way and create a manifest miscarriage of justice.

       {¶ 31} Appellant, in the case sub judice, was further convicted of a firearm

specification pursuant to R.C. 2941.145. Such section states, in relevant part, as

follows: “(A) Imposition of a three-year mandatory prison term upon an offender under

division (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless the

indictment, count in the indictment, or information charging the offense specifies that the

offender had a firearm on or about the offender's person or under the offender's control

while committing the offense and displayed the firearm, brandished the firearm,
Stark County, Case No. 2011-CA-00060                                                     12


indicated that the offender possessed the firearm, or used it to facilitate the offense.” In

turn, “firearm” is defined in R.C. 2923.11 as follows: “(B)(1) “Firearm” means any deadly

weapon capable of expelling or propelling one or more projectiles by the action of an

explosive or combustible propellant. ‘Firearm’ includes an unloaded firearm, and any

firearm that is inoperable but that can readily be rendered operable.” In the case at bar,

appellant argues that the operability of the gun was not established by sufficient

evidence and the jury’s finding of guilt on the firearm specification was against the

manifest weight of the evidence.

       {¶ 32} Pursuant to R.C. 2923.11(B)(2), “[w]hen determining whether a firearm is

capable of expelling or propelling one or more projectiles by the action of an explosive

or combustible propellant, the trier of fact may rely upon circumstantial evidence,

including, but not limited to, the representations and actions of the individual exercising

control over the firearm.” Thus, in determining whether a firearm was operable or could

have been rendered operable at the time of the offense, the trier of fact is permitted to

consider all relevant facts and circumstances surrounding the crime, including any

implicit threats made by the individual controlling the firearm. State v. Thompkins, supra,

paragraph one of the syllabus. See also, State v. Murphy (1990), 49 Ohio St.3d 206,

551 N.E. 932. As noted by the Ohio Supreme Court in Thompkins, supra “it should be

abundantly clear that where an individual brandishes a gun and implicitly but not

expressly threatens to discharge the firearm at the time of the offense, the threat can be

sufficient to satisfy the state's burden of proving that the firearm was operable or

capable of being readily rendered operable.” Id. at 384, 678 N.E.2d 541.
Stark County, Case No. 2011-CA-00060                                                    13


       {¶ 33} Upon our review of the record and after reviewing all relevant facts and

circumstances surrounding the crime, we find that the state proved beyond a

reasonable doubt that the firearm used by appellant was operable or could have been

readily rendered operable at the time of the offense.

       {¶ 34} Mr. Knight and Ms. Coons each identified the weapon used during the

commission of the crime as a semi-automatic handgun. Appellant pointed the firearm at

the individuals clearly conveying to each that he would shoot him or her if the individual

did not comply with the demands of the intruders. Appellant pointed the firearm directly

into Mr. Knight’s face and hit him in the head with the barrel of the gun two times.

       {¶ 35} Under the facts and circumstances of the case at bar, the evidence was

sufficient to prove the operability of the gun. We conclude that the evidence was

sufficient to support a conviction for the firearm specification and the jury, in resolving

conflicts in the evidence, did not clearly lose its way and create a manifest miscarriage

of justice.

       {¶ 36} Appellant’s First Assignment of Error is overruled.

                                                II.

       {¶ 37} In his Second Assignment of Error appellant argues the trial court's

imposition of a consecutive sentence was contrary to law and an abuse of discretion

because it failed to consider all of the required factors under R.C. 2929.11 and R.C.

2929.12. We disagree.

       {¶ 38} Specifically, appellant argues the transcript of proceedings fails to reflect

that the trial court considered R.C. 2929.11 and R.C. 2929.12 before imposing

sentence.
Stark County, Case No. 2011-CA-00060                                                      14


       {¶ 39} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124. The first step is to “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.” Kalish at ¶ 4. If this

first step “is satisfied,” the second step requires the trial court's decision be “reviewed

under an abuse-of-discretion standard.” Id.

       {¶ 40} As a plurality opinion, Kalish is of limited precedential value. See Kraly v.

Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case

as “of questionable precedential value inasmuch as it was a plurality opinion which

failed to receive the requisite support of four justices of this court in order to constitute

controlling law”). See, State v. Franklin (2009), 182 Ohio App.3d 410, 912 N.E.2d 1197,

2009-Ohio-2664 at ¶ 8. “Whether Kalish actually clarifies the issue is open to debate.

The opinion carries no syllabus and only three justices concurred in the decision. A

fourth concurred in judgment only and three justices dissented.” State v. Ross, 4th Dist.

No. 08CA872, 2009-Ohio-877, at FN 2; State v. Welch, Washington App. No. 08CA29,

2009-Ohio-2655 at ¶ 6.

       {¶ 41} Nevertheless, until the Supreme Court of Ohio provides further guidance

on the issue, we will continue to apply Kalish to appeals involving felony sentencing.

State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264 at fn.

2.

       {¶ 42} 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
Stark County, Case No. 2011-CA-00060                                                        15


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; State v. Wolfe, Stark App. No. 2008-CA-00064,

2009-Ohio-830 at ¶ 25.

       {¶ 43} The relevant sentencing law is now controlled by the Ohio Supreme

Court's decision in State v. Foster, i.e. " * * * 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." 109 Ohio St.3d 1, 30, 2006-Ohio-856 at ¶ 100, 845 N.E.2d 470, 498.

       {¶ 44} In the first step of our analysis, we review whether the sentence is

contrary to law. In the case at bar, appellant was convicted of aggravated burglary a

felony of the first degree. The sentencing range for a first-degree felony is three, four,

five, six seven, eight, nine or ten years. R.C. 2929.14(A)(1). The trial court sentenced

appellant to ten years in prison, which is the maximum sentence available.

       {¶ 45} 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
Stark County, Case No. 2011-CA-00060                                                    16


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

not clearly and convincingly contrary to law.

       {¶ 46} 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.

       {¶ 47} The failure to indicate at the sentencing hearing that the court has

considered the factors in R.C. 2929.11 and 2929.12 does not automatically require

reversal. State v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–5819, ¶ 8. “When the

trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is

presumed that the trial court gave proper consideration to those statutes.” Id., citing

Kalish at ¶ 18, fn. 4. “The Code does not specify that the sentencing judge must use

specific language or make specific findings on the record in order to evince the requisite

consideration of the applicable seriousness and recidivism factors.” State v. Arnett, 88

Ohio St.3d 208, 215, 2000–Ohio–302.

       {¶ 48} 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 [(2009), 555 U.S. 160, 129 S.Ct. 711,

172 L.Ed.2d 517], 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 to imposing consecutive sentences
Stark County, Case No. 2011-CA-00060                                                   17


unless the General Assembly enacts new legislation requiring that findings be made.”

See, State v. Fry, Delaware App. No. 10CAA090068, 2011-Ohio-2022 at ¶ 16-17.

       {¶ 49} In the case at bar, the trial court's March 14, 2011 journal entry states it

has considered the purposes and principles of sentencing as set forth in R.C. 2929.11,

as well as the factors set forth in R.C. 2929.12.

       {¶ 50} We find the trial court properly considered the purposes and principles of

sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.

2929.12, along with all other relevant factors and circumstances. While appellant may

disagree with the weight given to these factors by the trial judge, appellant's sentence

was within the applicable statutory range for a felony of the first degree and therefore,

we have no basis for concluding that it is contrary to law. Similarly, the trial court's

sentence cannot be said to be an abuse of discretion given the circumstances here.

See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 (an abuse of discretion

“implies that the court's attitude is unreasonable, arbitrary or unconscionable.”).
Stark County, Case No. 2011-CA-00060                                            18


      {¶ 51} Accordingly, we overrule appellant's Second Assignment of Error.

      {¶ 52} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur


                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. SHEILA G. FARMER

                                           _________________________________
                                           HON. PATRICIA A. DELANEY
[Cite as State v. Backie, 2011-Ohio-5801.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
v.                                                :       JUDGMENT ENTRY
                                                  :
TRAVONCE RASHAWN BACKIE                           :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-00060




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

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

 appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. SHEILA G. FARMER

                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
