[Cite as State v. Carlton, 2014-Ohio-3835.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :     Appellate Case No. 26086
          Plaintiff-Appellee                      :
                                                  :     Trial Court Case Nos. 09-CR-390
 v.                                               :     Trial Court Case Nos. 09-CR-391
                                                  :     Trial Court Case Nos. 10-CR-3622
 LESTER CARLTON, JR.                              :
                                                  :     (Criminal Appeal from
          Defendant-Appellant                     :     (Common Pleas Court)
                                                  :

                                              ...........
                                              OPINION
                             Rendered on the 5th day of September, 2014.
                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

VICTOR A. HODGE, Atty. Reg. #0007298, Law Office of the Public Defender, 117 South Main
Street, Suite 400, Dayton, Ohio 45422
        Attorney for Defendant-Appellant

                                              .............

FAIN, J.,
[Cite as State v. Carlton, 2014-Ohio-3835.]
        {¶ 1}     Defendant-appellant Lester Carlton, Jr., appeals from his concurrent, one-year

sentences for three counts of felony non-support, imposed after his community control sanctions

for those offenses were revoked because of his violation of reporting requirements. Carlton

contends that his sentence must be reversed, because the record fails to reflect that the trial court

considered the purposes and principles of sentencing or the seriousness and recidivism factors set

forth in R.C. 2929.11 and R.C. 2929.12.

        {¶ 2}     We conclude that a trial court is presumed to have considered the purposes and

principles of sentencing, and the statutory seriousness and recidivism factors, unless the record

suggests to the contrary. We find nothing in this record to suggest that the trial court failed to

consider those purposes, principles, and factors. Accordingly, the judgment of the trial court is

Affirmed.



                                I. Carlton’s Non-Support Convictions

        {¶ 3}     In May, 2009, in Montgomery County Common Pleas Court Case No.

09-CR-390, Carlton pled guilty to one count of the failure to pay child support, in violation of

R.C. 2919.21(B), a felony of the fifth degree, and to one count of the failure to pay child support,

in violation of R.C. 2919.21(B), a felony of the fourth degree.           Two other counts were

dismissed. A judgment of conviction was entered May 8, 2009, on the fifth-degree felony count,

imposing community control sanctions.         A judgment of conviction was not entered on the

fourth-degree felony count until February 13, 2014, after the revocation proceeding that appears

to have triggered this appeal. The trial court imposed a single, twelve-month sentence for both

offenses, to be served concurrently with the sentences imposed in the other two cases. This

entry was signed by a different judge than the judge who had, two days earlier, signed the entry
                                                                                                 3


revoking Carlton’s community control sanctions and imposing a twelve-month sentence for the

fifth-degree felony in this case, Case No. 09-CR-390. Carlton is not raising on appeal any issues

with respect to the fact that two different judges have signed judgment entries imposing sentence

in this case. In any event, the total sentence imposed in Case No. 09-CR-390, in each of the two

sentencing entries, is the same: twelve months to be served concurrently with the sentences

imposed in the other two cases.

       {¶ 4}    On the same day in May, 2009, in Case No. 09-CR-391, Carlton pled guilty to

one of two fifth-degree felony counts of failure to pay child support. The other count was

dismissed. Community control sanctions were imposed in this case.

       {¶ 5}    In January, 2011, in Case No. 2010 CR 03622, Carlton pled guilty to two

fifth-degree counts, and one fourth-degree count, of failure to pay child support. He failed to

appear for sentencing. He also failed to report to the Montgomery County Adult Probation

Department, as required by the terms of his community control sanctions imposed in the other

two cases. More than two years later, he was arrested. In July, 2013, Carlton was sentenced to

community control sanctions in this case.



                                  II. The Revocation Proceeding

       {¶ 6}    In December, 2013, Carlton was served with notice of a revocation hearing, in

which it was alleged that he had: (1) “failed to make full payments in [his] court ordered child

support cases”; (2) “failed to attend scheduled office visits on September the 16th and 23rd,” and

“failed to attend an office visit for the entire month of November and failed to report until your

Non-Support Hearing on December 16"; and (3) “failed to make payments toward your court
                                                                                                   4


costs, * * * failed to report to the Adult Probation Department as required, * * * failed to

complete the Male Issues Seminar[,] and * * * failed to comply with your Court Ordered Child

Support.”

       {¶ 7}     Following a hearing, the trial court revoked Carlton’s community control

sanctions in all three cases, and imposed concurrent, twelve-month prison sentences for all of the

non-support convictions except the one fourth-degree count in Case No. 09-CR-390. The trial

court expressly based its decision to revoke community control solely upon Carlton’s failure to

have reported weekly as required by the terms of the community control sanctions. Two days

later, as noted in Part I, above, a different judge imposed a twelve-month prison sentence for both

of the non-support counts in Case No. 09-CR-390, to be served concurrently with all of the other

sentences in both of the other cases.

       {¶ 8}     From the sentence, Carlton appeals. His sole assignment of error is as follows:

                THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPOSING

       A SENTENCE OF INCARCERATION FOR A COMMUNITY CONTROL

       VIOLATION WITHOUT CONSIDERING THE PURPOSES AND PRINCIPLES

       OF SENTENCING (R.C. 2929.11) AND SERIOUSNESS AND RECIDIVISM

       FACTORS (R.C. 2929.12).



               III. There Is Nothing in this Record to Overcome the Presumption

                  that the Trial Court Considered the Purposes and Principles

                     of Sentencing and Seriousness and Recidivism Factors

       {¶ 9}     As a preliminary matter, we note that the sentence the trial court imposed was not
                                                                                              5


“for a community control violation,” as recited in Carlton’s assignment of error. The sentences

were imposed for Carlton’s felony non-support convictions.

       {¶ 10} R.C. 2929.11 provides as follows:

              (A) A court that sentences an offender for a felony shall be guided by the

       overriding purposes of felony sentencing. The overriding purposes of felony

       sentencing are to protect the public from future crime by the offender and others

       and to punish the offender using the minimum sanctions that the court determines

       accomplish those purposes without imposing an unnecessary burden on state or

       local government resources. To achieve those purposes, the sentencing court shall

       consider the need for incapacitating the offender, deterring the offender and others

       from future crime, rehabilitating the offender, and making restitution to the victim

       of the offense, the public, or both.

              (B) A sentence imposed for a felony shall be reasonably calculated to

       achieve the two overriding purposes of felony sentencing set forth in division (A)

       of this section, 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 committed by similar offenders.

              (C) A court that imposes a sentence upon an offender for a felony shall not

       base the sentence upon the race, ethnic background, gender, or religion of the

       offender.

       {¶ 11} R.C. 2929.12(B) sets forth certain factors that, along with “any other relevant

factors,” a trial court “shall consider * * * as indicating that the offender’s conduct is more
                                                                                                     6


serious than conduct normally constituting the offense.” Division (C) of that same section sets

forth certain factors that, along with “any other relevant factors,” a trial court “shall consider * *

* as indicating that the offender’s conduct is less serious than conduct normally constituting the

offense.” Division (D) sets forth certain factors that, along with “any other relevant factors,” a

trial court “shall consider * * * as factors indicating that the offender is likely to commit future

crimes.” Finally, Division (E) sets forth certain factors that, along with “any other relevant

factors,” a trial court “shall consider * * * as factors indicating that the offender is not likely to

commit future crimes.”

       {¶ 12} Neither in the trial court’s remarks at the sentencing hearing following the

revocation hearing, in the February 11, 2014 sentencing entry, nor in the February 13, 2014

sentencing entry, is there any express indication that the trial court considered the purposes and

principles of sentencing, or the seriousness and recidivism factors.

       {¶ 13} Carlton argues that: “Where the record does not affirmatively indicate that the

[trial court] applied R.C. 2929.11 and R.C. 2929.12, the sentence is contrary to law. [State v.]

Kalish, [120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124]; [State v.] Rodeffer,

[2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.)]; [State v.] Haley, [12th Dist. Butler No. CA

2012-10-212, 2013-Ohio-4531].” Carlton’s brief at p. 8. The lead opinion in Kalish contains

the following footnote 4 at ¶ 18:

               Of course, where 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. Cf. State v. Adams (1988), 37 Ohio St.3d 295, 525

       N.E.2d 1361, paragraph three of the syllabus.
[Cite as State v. Carlton, 2014-Ohio-3835.]
          {¶ 14} Only three of the justices concurred in the lead opinion. Judge Willamowski, of

the Third Appellate District, sitting for Justice Cupp, concurred in the judgment, but wrote a

separate opinion addressed to the proper standard of appellate review of a felony sentence. In

that opinion, at ¶ 37, Judge Willamowski did opine that the holding in Adams that a silent record

raises the presumption that the trial court considered the factors set forth in R.C. 2929.12 had

been implicitly overruled in State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

          {¶ 15} Significantly, however, Justice Lanziger’s dissenting opinion, in which two other

justices concurred, did not address the issue of whether a silent record raises a presumption that

the trial court has considered the statutory factors. Thus, in Kalish there are three justices on

record opining that a silent record raises the presumption, one appellate judge sitting for a justice

opining that a silent record does not raise the presumption, and three justices taking no position

on that issue. We conclude that Kalish does not offer any support for Carlton’s argument that a

trial court’s consideration of statutory sentencing factors may not be presumed from a silent

record.

          {¶ 16} In Rodeffer, the next case Carlton cites, we noted at ¶ 32 that: “According to

Kalish, a sentence is not contrary to law when the trial court imposes a sentence within the

statutory range, after expressly stating that it had considered the purposes and principles of

sentencing as set forth in R.C. 2929.11, as well as the factors in R.C. 2929.12.” This merely

notes that the facts in Kalish were that the trial court had expressly stated that it had considered

the statutory factors. Obviously, if a trial court does state, on the record, that it has considered

the statutory factors, there is no need to rely upon a presumption that it did so. This is why the

lead opinion in Kalish, in noting that a silent record would raise the presumption, does so in a

footnote, not in the body of the opinion; in the Kalish opinion, the existence of a silent record is a
                                                                                                     8


hypothetical fact, not present in that case. We conclude that our opinion in Rodeffer does not

address the issue of whether a silent record would give rise to a presumption that the trial court

has considered the statutory factors, since the record in Rodeffer was not silent on that point.

       {¶ 17} Likewise, in Haley, the third of the cases Carlton cites, the opinion notes at ¶ 14

that the trial court in that case had stated that it had considered the statutory factors, both at the

hearing, and in its sentencing entry. The Haley opinion did not concern itself, therefore, with the

situation, hypothetical in that case, in which a record is silent as to whether the trial court had

considered the statutory factors. Therefore, we conclude that the Haley opinion is not authority

for the proposition that consideration of the statutory sentencing factors may not be presumed

from a silent record.

       {¶ 18} As the State notes, we have held on more than one occasion that a trial court’s

consideration of the statutory sentencing factors may be presumed from a silent record. State v.

Imber, 2d Dist. Clark No. 11CA0063, 2012-Ohio-3720, ¶ 26; State v. Neff, 2d Dist. Clark No.

2012-CA-31, 2012-Ohio-6047, ¶ 5; and State v. Gibson, 2d Dist. Champaign No. 2012-CA-38,

2013-Ohio-2930, ¶ 35. We see no reason to depart from that holding in this case.

       {¶ 19} Although the trial court did not refer either to the purposes and principles of

sentencing (R.C. 2929.11) or to the seriousness and recidivism factors (R.C. 2929.12) in its

announcement of its sentencing decision, its remarks during its revocation decision, immediately

preceding the sentencing hearing, are instructive, especially since Carlton’s counsel, in closing

argument, had addressed not only the issue of whether Carlton had violated the terms of his

community control sanctions, but also the issue of the proper sanction to be imposed. The trial

court’s remarks included the following:
[Cite as State v. Carlton, 2014-Ohio-3835.]
        In the Court’s view the primary issue is one of failure to report. How

does that play out in terms of my judgment? There was a two year failure to

report that was admitted by Mr. Carlton.        That was a failure to report that

preexisted Judge Dankof’s granting, if you will, of another chance to Mr. Carlton.

        Mr. Carlton said he was going through a very difficult time – the death of a

child, injury to his stepfather, other events in his life that basically put him in a

mental condition where he simply did not report for two years. It was under those

circumstances that Judge Dankof received the case on a revocation and did not

revoke, but chose to give Mr. Carlton another chance. If we were just talking

about that two year period, if that was the only issue of non-reporting before me, I

would say, you know, my colleague – my friend, Judge Dankof, someone whose

judgment I greatly respect had that before him and he chose not to revoke. And

that would have an impact on me. The problem is I’ve got another substantial

period where you did not report, Mr. Carlton. And I’m talking about October the

29th to December the 29th.

        Now, what you’ve testified to is, hey, Scott Hartings [sic, Carlton’s

probation officer] was hard to get hold of. I left phone messages, I tried to call

Donnie Anderson [Harting’s “coverage partner”]. But you said yourself, you

made no effort – there was no attempt, no single attempt to go down to the

probation department.

        This follows a period of two years where you had not reported at all and

you knew that was a big issue. You basically were given another opportunity

despite that big problem, and yet, in the context of not seeing Mr. Harting as
                                                                                      10


required, you didn’t go down to the probation department. You didn’t either seek

him out or seek out – and I’m looking now at Rule 5 of the general conditions of

supervision. And this was something as has been acknowledged. The State’s

Exhibit 1. It was something you signed back in 2009 and the provision remains

the same. But the provision indicates, “I shall report at such time and place as

directed by my probation officer. If my probation officer is unavailable –” there

was testimony Mr. Harting was out for a period of time in November. Not all of

November and certainly not December 1 to December the 29th. That’s 29 days of

December where whatever happened in November that drew him out of the office

– I think it was a vacation – that wasn’t the case. There’s no evidence of that at

all that he was out in December.

       And so according to Rule 5 which you’re acknowledging in State’s Exhibit

1, you shall report if Mr. Harting is unavailable to the officer of the day. His

testimony was when he is out the officer of the day – the person that covers for

him as he covers for this person – is Donnie Anderson. So you were in a position

in November, in December to go down there to look for Donnie Anderson. And,

indeed if Donnie Anderson, the officer of the day, was not available, you were in a

position pursuant to this requirement – this rule to look for the supervisor, the

manager, the assistant deputy, or the deputy court administrator. You had a

number of people that you could have reported to.

       The Court finds as a matter of law your attempt to call – I don’t know how

many times – it wasn’t clear – how many times you attempted to call, but that’s
                                                                                                    11


       not reporting when you have a number of people that would be available to you if

       you simply went down to the probation office.

              Why should you do that? You’re the person under probation. You’re the

       person who is on community control sanctions and it’s up to you – it’s incumbent

       upon you to follow those requirements. You’re the person that has to follow the

       requirements. And this is after this two year non-reporting period which, as I

       have said, if that was all that was before me, I would not revoke based on that

       because I think Judge Dankof dealt with that. But when there follows another

       substantial period on the heels of that, that’s a different – in the Court’s view –

       that’s a different composition which leads me to the conclusions that I’ve reached.

       {¶ 20} We find nothing in the record to rebut the presumption that the trial court

considered the purposes and principles of sentencing, and the seriousness and recidivism factors,

when it imposed sentence in this case. In the above-quoted remarks the trial court twice stressed

the fact that Carlton’s having absconded for two months in late 2013 occurred just months after

he had absconded for over two years, during which time Carlton made only three or four partial

payments of child support. This suggests, at least, that the trial court was considering the

recidivism factor represented by Carlton’s having absconded just shortly after a prior, longer

period during which he absconded, after which he was given another chance at community

control sanctions. It also suggests that the trial court gave consideration, in accordance with

R.C. 2929.11(A), to the fact that continuing community control sanctions as the sentence for

these offenses could no longer be deemed to be the minimum sanction needed to achieve the

purposes of felony sentencing without imposing an unnecessary burden on state or local
                                                                                               12


government resources, since the community control sanctions that had been imposed were not

working.

          {¶ 21} We conclude that the record does not support Carlton’s sole assignment of error,

which we overrule.



                                         IV. Conclusion

          {¶ 22} Carlton’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

                                          .............

WELBAUM, J., concurs.

FROELICH, P.J., concurring:

          {¶ 23} On this record, I concur in judgment.

          {¶ 24} As stated in State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶

14, 15:

                 We understand Appellant’s argument to be further that even if he were in

          violation of the conditions of his community control, the court should have

          imposed a less restrictive sanction and continued him on community control.

          “Community control is not a contract for good behavior. The community control

          sanction is deemed the appropriate sentence to both punish the offender and

          protect the public. Community control is not ‘a break’; it is the punishment that

          fits the crime.” State v. Beverly, Ross App. No. 01 CA 2603, 2002-Ohio-118

          (emphasis in original).
                                                                                               13


                R.C. 2929.15(B) provides a trial court with three options if an offender

       violates a condition or conditions of community control.         State v. Belcher,

       Lawrence App. No. 06 CA 32, 2007-Ohio-4256, ¶ 20. These are: (1) extend the

       terms of the community control sanction, (2) impose a prison term that does not

       exceed that prison term specified by the court at the offender’s sentencing hearing;

       or (3) impose a stricter community control sanction. R.C. 2929.15(B).” State v.

       Palacio, Ottawa App. No. OT-07-015, 2008-Ohio-2374, ¶ 8. A trial court’s

       choice of sanction under R.C. 2929.15(B), where the defendant has violated the

       conditions of community control, is subject to review on appeal under an abuse of

       discretion standard.    Id.; State v. Wolfson, Lawrence App. No. 03 CA 25,

       2004-Ohio-2750, ¶ 8.

       {¶ 25}      Regardless, this is not an appeal pursuant to R.C. 2953.08 so our abuse of

discretion review has not been changed. See, e.g., State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d

1069 (2d Dist.).

       {¶ 26} I believe the wording in the majority opinion that compliance with statutory

mandates is always presumed and the burden is always on the appellant to show noncompliance

is too broad.

       {¶ 27} R.C. 2929.11(A) requires that a sentencing court be 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 using the minimum sanctions that the court determines can accomplish

these purposes without imposing an unnecessary burden on state or governmental resources.

       {¶ 28} To achieve these purposes, the court shall consider the need for incapacitating the
                                                                                                     14


offender, deterring the offender and others from future crime, rehabilitating the offender, and

making restitution. Similarly, R.C. 2929.12 grants discretion to the court, but says, in exercising

that discretion, the court shall consider the factors set forth in divisions (B)(C)(D)(E) and (F).

          {¶ 29} If a court does not adhere to these statutory requirements, it is abusing its

discretion and the sentence would be reversed. The burden on an Appellant is to demonstrate

reversible error.

          {¶ 30} Unlike R.C. 2929.14(C)(4), these statutes do not require “findings” on the record,

cf. State v. Bonnell, Slip Opinion No. 2014-Ohio-3177, syllabus.               But they do require

consideration of, at least, the enumerated factors, and the exercise of judicial discretion in

applying them.

          {¶ 31}    Even in a case such as this where the court may be presumed to have considered

the factors, the proper exercise of its discretion in imposing a sentence is still subject to appellate

review.

          {¶ 32} Carlton has not assigned abuse of discretion as error, and I would not find any if

it were alleged.

                                             ..........

Copies mailed to:

Mathias H. Heck
Andrew T. French
Victor A. Hodge
Hon. Michael W. Krumholtz
