[Cite as State v. Meeker, 2010-Ohio-5519.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-10-09

        v.

JOSEPH M. MEEKER,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2009 CR 70

                                      Judgment Affirmed

                         Date of Decision:    November 15, 2010




APPEARANCES:

        Joseph A. Benavidez for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-10-09


ROGERS, J.

      {¶1} Defendant-appellant, Joseph M. Meeker, appeals from the judgment

of the Putnam County Court of Common Pleas convicting him of one count of

receiving stolen property and one count of burglary, and sentencing him to serve

six and a half years in prison. On appeal, Meeker argues that the trial court erred

when it found that a single prison term would not adequately protect the public

from future crimes and imposed a sentence of maximum and consecutive prison

terms. Based on the following, we affirm the judgment of the trial court.

      {¶2} On December 9, 2009, Meeker was indicted by the Putnam County

Grand Jury on one count of receiving stolen property in violation of R.C.

2913.51(A), a felony of the fourth degree; one count of having weapons while

under a disability in violation of R.C. 2923.13(A)(2), a felony of the third degree;

one count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second

degree; and one count of possession of criminal tools in violation of R.C.

2923.24(A), a felony of the fifth degree. The indictment arose from seventeen

separate incidents where Meeker and his co-defendant, Jamison Siefker, forcibly

entered into various residences and unoccupied structures, taking items belonging

to the property owners. After conducting a lawful search of Meeker’s residence,

Ottawa police officers found several of the stolen items within the home, including

the pry bar that was reportedly used in committing some of the offenses. The



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police also discovered three .22 caliber rifles in the home which Meeker was

prohibited from possessing due to his prior conviction on a felony domestic

violence charge. Meeker subsequently entered a plea of not guilty to the charges.

       {¶3} On March 15, 2010, Meeker entered a negotiated plea of guilty to

the receiving stolen property and burglary charges. The State agreed to dismiss

the remaining two charges and to remain silent at sentencing in exchange for

Meeker’s co-operation and testimony in the prosecution of his co-defendant. At

the change of plea hearing, Meeker stated that he understood that the charges

against him carried a total potential sentence of six and a half years, eighteen

months for the receiving stolen property charge and five years for the burglary

charge. On April 20, 2010, the court sentenced Meeker to serve the maximum

term of six and a half years in prison and ordered him to pay $1,667.90 in

restitution.

       {¶4} It is from his conviction and sentence that Meeker appeals,

presenting the following assignment of error for our review.

       APPELLANT IS ENTITLED TO AN APPEAL OF THIS
       SENTENCE AS A MATTER OF RIGHT PURSUANT TO THE
       TRIAL COURT IMPOSING THE MAXIMUM SENTENCES
       AND SENTENCING APPELLANT CONTRARY TO LAW

       {¶5} In his sole assignment of error, Meeker argues that the trial court

erred when it sentenced him to the maximum sentence on each count to be served

consecutively for a total six and a half year prison term. Specifically, Meeker


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maintains that the trial court’s sentence is contrary to law because the trial court

incorrectly found that the harm in this case was so great that a single prison term

would not adequately protect the public from future crimes. We disagree.

        {¶6} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3rd Dist. No. 16-07-07,

2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No.2003-P-0007, 2004-

Ohio-1181.        A meaningful review means “that an appellate court hearing an

appeal of a felony sentence may modify or vacate the sentence and remand the

matter to the trial court for re-sentencing if the court clearly and convincingly

finds that the record does not support the sentence or that the sentence is otherwise

contrary to law.” Daughenbaugh, 2007-Ohio-5774, at ¶ 8, citing Carter, 2004-

Ohio-1181, at ¶ 44; R.C. 2953.08(G).[1] Clear and convincing evidence is “[t]he

measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the allegations sought to be established.                                 It is

intermediate, being more than a mere preponderance, but not to the extent of such

certainty as required beyond a reasonable doubt as in criminal cases. It does not

mean clear and unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101,



[1]
   We note that the Supreme Court of Ohio’s recent plurality opinion in State v. Kalish, 120 Ohio St.3d 23,
896 N.E.2d 124, 2008-Ohio-4912, establishes a two-part test utilizing an abuse of discretion standard for
appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s
precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note
that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test.


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Case No. 12-10-09


103-04, 495 N.E.2d 23.

       {¶7} In State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-

856, the Supreme Court of Ohio severed portions of Ohio’s felony sentencing law

after finding them unconstitutional. The Court held that “[t]rial 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.” Id. at paragraph seven of the

syllabus. Further, the Court stated that “[o]ur remedy does not rewrite the statute,

but leaves courts with full discretion to impose a prison term within the basic

ranges of R.C. 2929.14(A) * * *.” Id. at ¶ 102, 845 N.E.2d 470. Additionally, the

Court held that “[c]ourts shall consider those portions of the sentencing code that

are unaffected by today’s decision and impose any sentence within the appropriate

felony range.” Id. at ¶ 105, 845 N.E.2d 470.

       {¶8} Trial courts are still required to comply with R.C. 2929.11, 2929.12,

2929.13, and the unsevered portions of R.C. 2929.14. Foster, 109 Ohio St.3d 1, at

¶ 36, 845 N.E.2d 470. However, R.C. 2929.11 and 2929.12 do not mandate

judicial fact-finding; rather, in exercising its discretion, a trial court is merely

required to “consider” the purposes of sentencing in R.C. 2929.11 and the

statutory guidelines and factors set forth in R.C. 2929.12. Id. at ¶¶ 36-42, 845

N.E.2d 470. See, also, State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-



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Case No. 12-10-09


Ohio-855, ¶ 38; State v. Roehl, 3d Dist. No. 4-07-10, 2008-Ohio-85, ¶ 10; State v.

Estep, 3d Dist. No. 9-07-16, 2007-Ohio-6713, ¶ 12.

       {¶9} In the present case, the trial court sentenced Meeker to a prison term

within the permissible range for a felony of the third degree, as provided in R.C.

2929.14(A)(2), and, a felony of the fourth degree, as provided in R.C.

2929.14(A)(4). Pursuant to Foster, the trial court was authorized to sentence him

to any prison term within that range. Moreover, the trial court also indicated it

considered the principles and purposes of sentencing under R.C. 2929.11 and the

seriousness and recidivism factors of R.C. 2929.12. At the sentencing hearing, the

trial court noted Meeker’s extensive criminal past as a juvenile and discussed in

detail several reported threats that Meeker had made to seriously harm or kill his

mother and other individuals. The court also noted that Meeker continued to have

unsettling psychological issues which the trial court characterized as “on-going

problems” that are “unlikely to change.” (Apr.2010 Hearing Tr., p.11). The court

concluded “that these are systemic long term issues that appear to be unresponsive

to past treatments.” (Id.). Finally, the court stated that it believed Meeker to be a

significant danger to others and expressed its concern with the likelihood of

Meeker’s recidivism by stating that it had little reason to believe that Meeker’s

behavior is likely to change at any time in the foreseeable future.




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       {¶10} Based on these considerations, the court determined that a single

prison term would not adequately protect the public from future crime and that

consecutive and maximum sentences were warranted in this case. After reviewing

the record before us, it is apparent that the trial court gave its due consideration of

the principles and purposes of sentencing under R.C. 2929.11 and the seriousness

and recidivism factors of R.C. 2929.12 when it imposed Meeker’s sentence.

Consequently, we do not find that the trial court erred in imposing maximum and

consecutive prison terms in this case.

       {¶11} Accordingly, we overrule Meeker’s sole assignment of error.

       {¶12} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

PRESTON, J., concurs.

/jlr



WILLAMOWSKI, P.J. Concurring Separately.

       {¶13} I concur with the majority opinion, however write separately to

emphasize that the appropriate standard of review was applied. The standard of

review for sentences was set forth in the plurality opinion of Kalish, supra. In

Kalish, four panel members noted that R.C. 2953.08(G) requires that appellate



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courts require appellants to meet a clearly and convincingly contrary to law

standard of review when reviewing a sentence.1 For example, if the sentencing

court imposed consecutive sentences, as in this case, the standard of review would

be whether appellant has shown that the sentence was clearly and convincingly

contrary to law. However, if the appeal is based upon the proper application of the

factors in R.C. 2929.12, four panel members in Kalish would require review using

an abuse of discretion standard as specifically set forth in R.C 2929.12.2

        {¶14} In his assignments of error, Meeker alleges that the trial court erred

by imposing maximum sentences under R.C 2929.14. Meeker’s appeal of his

felony sentence did not raise issue with the application of the factors set forth in

R.C. 2929.12, which would require a review using an abuse of discretion standard.

Thus, the clearly and convincingly contrary to law standard used to review this

case, as set forth in R.C. 2953.08(G)(2) is the proper standard of review herein.




1
    Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.
2
   Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.


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