[Cite as State v. Hoover, 2013-Ohio-4612.]




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

 STATE OF OHIO                                   :
                                                 :     Appellate Case No. 2013-CA-8
          Plaintiff-Appellee                     :
                                                 :     Trial Court Case No. 2012-CR-298
 v.                                              :
                                                 :
 CHEVITS W. HOOVER                               :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
          Defendant-Appellant                    :
                                                 :
                                             ...........

                                             OPINION

                             Rendered on the 18th day of October, 2013.

                                             ...........

KEVIN S. TALEBI, Atty. Reg. #0069198, by JENNIFER E. GELLER, Atty. Reg. #0088855,
Champaign County Prosecutor’s Office, 200 North Main Street
Urbana, Ohio 43078
      Attorneys for Plaintiff-Appellee

DARRELL L. HECKMAN, Atty. Reg. #0002389, Harris, Meyer, Heckman & Denkewalter,
LLC, One Monument Square, Suite 200, Urbana, Ohio 43078
      Attorney for Defendant-Appellant

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

FAIN, P.J.

        {¶ 1}     Defendant-appellant Chevits W. Hoover appeals from his sentence for
                                                                                                                           2


Telecommunications Harassment. He contends that the trial court erred by: sentencing him to

eleven months in prison; deciding not to recommend shock incarceration, the intensive prison

program, or a risk reduction sentence; and imposing a $250 fine.

        {¶ 2}        We conclude that the trial court was within its discretion when it imposed the

eleven-month sentence and $250 fine, and decided not to recommend shock incarceration, the

intensive prison program, or a risk reduction sentence. Accordingly, the judgment of the trial

court is Affirmed.



                               I. Hoover Calls his Victim “To Hear her Voice”

        {¶ 3}        Hoover had been in a relationship with Angela Partlow for about two years when

she broke up with him in 2011. In June of that year, he was convicted of Disorderly Conduct

and Telephone Harassment in an incident involving Partlow, then known as Angela Durst.1 He

received community control sanctions for those misdemeanor offenses. One of the conditions

was no contact with Partlow or her husband.

        {¶ 4}        On August 20, 2012, Hoover called Partlow’s cell telephone twice. He hung up

at the end of the first, two-minute call, and then placed a second, one-minute call. To the

investigating police officer, and initially at his sentencing hearing, Hoover claimed that the first

call was purely accidental, a result of his switching to a new cell phone, and the second call was

to apologize for the first.

        {¶ 5}        Later during the sentencing hearing, the following colloquy occurred:

                    THE COURT: This is the problem that the Court has. You’re telling me

          1
              In her victim impact statement, Partlow reports that she married some time after she broke up with Hoover.
                                                                                                     3


       that you were with a woman for approximately two years, and it was such an

       intense relationship that you got engaged to her, and you’ve never been engaged

       before. You had difficulty with the break up. So that demonstrates that you

       must have really cared for her. And you want me to believe that you didn’t know

       whose phone number it was that you were dialing?

               DEFENDANT HOOVER: No, I don’t want you to believe that. Because

       you know what, I’ll tell you the truth because it is the truth. I called to hear her

       voice. That’s just being honest. I called to hear her voice. And that’s being

       honest. And I knew I screwed up. So I apologized for that. And I was lost in

       love, you know. I didn’t know.



                                II. The Course of Proceedings

       {¶ 6}    Hoover was charged by indictment with two counts of Telecommunications

Harassment, with a prior conviction for Telecommunications Harassment, in violation of R.C.

2917.21(A)(5), (C)(2), felonies of the fifth degree. Hoover entered into a plea agreement,

whereby he agreed to plead guilty to one count, the State agreed to dismiss the second count, and

the State further agreed to recommend community control sanctions at Hoover’s sentencing

hearing.

       {¶ 7}    At the sentencing hearing, the trial court heard from Hoover’s counsel, the State,

which honored its agreement to recommend community control sanctions, and Hoover, himself.

The trial court also had the benefit of a pre-sentence investigation report and a victim impact

statement, both of which are in our record.
[Cite as State v. Hoover, 2013-Ohio-4612.]
        {¶ 8}     The trial court sentenced Hoover to eleven months in prison, one month less than

the maximum, and fined him $250.             Hoover could have been fined $2,500.     Finally, the

sentencing entry included statements that: (1) “The Court does not recommend the Defendant for

placement in a program of shock incarceration under R.C. 5120.031. R.C. 2929.14(I)(1).”

(Emphasis sic); (2) “The Court does not recommend the Defendant for placement in an intensive

program prison under R.C. 5120.032. R.C. 2929.14(I)(1).” (Emphasis sic); and (3) “The court

does not recommend that the Defendant serve a risk reduction sentence under 5120.036. R.C.

2929.143(A).” (Emphasis sic.)

        {¶ 9}     From his sentence, Hoover appeals.



                        III. The Trial Court Did Not Abuse its Discretion

                           in Imposing an Eleven-Month Prison Sentence

        {¶ 10} Hoover’s First Assignment of Error is as follows:

                 THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO 11

        MONTHS IN PRISON FOR A NONVIOLENT FELONY OF THE FIFTH

        DEGREE.

        {¶ 11} Hoover concedes that because his eleven-month sentence is not unlawful, this

assignment of error is governed by the abuse-of-discretion standard of review.

        {¶ 12} Hoover first argues that the trial court was in error when it declared in its

sentencing entry that as a result of its findings, “it is required to impose a prison term on the

Defendant * * * .” (Emphasis sic.) The State responds that the trial court was correct in its

conclusion that its findings mandated the imposition of a prison sentence, under the version of

the sentencing statute in effect at the time of his sentencing, which provided, at R.C.
                                                                                                    5


2929.13(B)(3)(a) as follows:

               If the court makes a finding described in division (B)(2)(a), (b), (c), (d),

       (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors

       set forth in section 2929.12 of the Revised Code, finds that a prison term is

       consistent with the purposes and principles of sentencing set forth in section

       2929.11 of the Revised Code and finds that the offender is not amenable to an

       available community control sanction, the court shall impose a prison term upon

       the offender.

       {¶ 13} In reply, Hoover does not dispute that the trial court made the findings set forth

above, but argues that a statutory sentencing scheme involving findings of fact by a trial judge is

unconstitutional under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶100.

We conclude that Foster does not stand for that proposition. The Supreme Court’s opinion in

Foster refers to certain findings that require a prison sentence. Id. at ¶ 43, fn. 45. Foster was

specific in declaring which portions of the Ohio sentencing statutes were unconstitutional, and

were therefore severed from the statute; R.C. 2929.13 was not one of those statutory provisions.

Id. at ¶ 99. The part of the Foster opinion Hoover cites states: “Accordingly, we have concluded

that trial courts have full discretion to impose a sentence within the statutory range and are no

longer required to make findings or give their reasons for imposing maximum, consecutive, or

more than minimum sentences.” Id. at ¶ 100. R.C. 2929.13(B)(3)(a), effective at the time of

Hoover’s sentencing, did not restrict the trial court’s discretion to impose a sentence within the

statutory range, without providing reasons for imposing a more than minimum sentence, six

months in this case. (Hoover’s sentence did not involve maximum or consecutive sentences.)
[Cite as State v. Hoover, 2013-Ohio-4612.]
        {¶ 14} Finally, Foster was predicated upon the holding in Apprendi v. New Jersey, 530

U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Quoted in

Foster at ¶ 3.) The statutory provision upon which the trial court relied did not increase the

penalty for Hoover’s crime beyond the prescribed statutory maximum of twelve months; it

merely mandated that the sentence include a prison term within that range.

        {¶ 15} Hoover next argues that the trial court erred when it found that his relationship to

his victim facilitated the offense. R.C. 2929.12(C). Hoover argues that while his relationship

to the victim was the motivation for the offense, it did not facilitate the offense in the sense of

making it easier to commit the offense. The trial court did not explain how it came to the

conclusion that Hoover’s relationship to his victim facilitated the offense, but it is clear from a

review of the entire record that Hoover called the victim’s cell telephone, and that the victim had

not changed her cell telephone number after her relationship with Hoover ended. Therefore, it is

reasonable to conclude that Hoover’s relationship with the victim facilitated the offense because

he knew the victim’s telephone number as a result of his relationship with her.

        {¶ 16} Hoover then argues that the trial court erred by failing to consider, as an

indication “that the offender’s conduct is less serious than conduct normally constituting the

offense,” that he did not cause or expect to cause physical harm to any person or property in

committing the offense. R.C. 2929.12(C)(3). It is true that the trial court indicated that there

were no factors that it considered under R.C. 2929.12(C) as indicating that Hoover’s conduct was

less serious. Arguably, this was erroneous, since there is no indication that Hoover caused, or

expected to cause, any physical harm to persons or property. We deem the error to be harmless,
                                                                                                  7


however. Had the trial court considered this factor, it would properly have given it negligible

weight, since the offense of Telecommunications Harassment, by its nature, is unlikely to cause

physical harm to persons or property.       Therefore, the presence of this factor would have

negligible effect in causing Hoover’s offense to be deemed less serious than the conduct normally

constituting Telecommunications Harassment.

       {¶ 17} Based on the record, we conclude that the circumstances inclining the trial court

towards a higher sentence had to do with Hoover’s likelihood of re-offending.               These

circumstances included his significant criminal history, the fact that he was on community

control sanctions for having committed the same offense against the same victim when he

committed this offense, his initial unwillingness to accept responsibility for his act,

characterizing it as accidental, and his ultimate admission that his attraction to the victim – his

desire to hear her voice – made it impossible for him to conform his conduct to the criminal code,

or to comply with the no-contact order from his prior conviction. Given these circumstances, we

find no abuse of discretion on the part of the trial court in imposing an eleven-month prison

sentence for the offense.

       {¶ 18} Hoover’s First Assignment of Error is overruled.



   IV. The Trial Court Did Not Abuse its Discretion in Declining to Recommend Shock

         Incarceration, the Intensive Program Prison, or a Risk Reduction Sentence

       {¶ 19} Hoover’s Second Assignment of Error is as follows:

               THE TRIAL COURT ERRED IN RECOMMENDING APPELLANT

       NOT BE RECEIVED INTO SHOCK INCARCERATION, INTENSIVE PRISON
                                                                                                      8


       PROGRAM OR RISK REDUCTION.

       {¶ 20} With respect to shock incarceration and intensive program prison, a trial court

has three options under the statutes. It may recommend the offender for the program, it may

disapprove the offender for the program, or it may make no recommendation. R.C. 2929.14(I).

Arguably, the trial court chose the middle option for both of these programs. It did not state that

it was disapproving Hoover for either program; it merely stated that it “does not recommend”

Hoover for each program, respectively. If a trial court decides to disapprove an offender for one

of these programs, we suggest that it use the word “disapprove,” as set forth in the statute, to

avoid any ambiguity in its decision.

       {¶ 21} Assuming, without deciding, that the trial court effectively disapproved Hoover

for each of these programs, we find no abuse of discretion. Hoover makes no argument in his

brief on this point other than the arguments he makes in support of his contention that the trial

court abused its discretion in imposing an eleven-month prison term, which we have found

unpersuasive in Part III, above.

       {¶ 22} With respect to a risk reduction sentence under R.C. 5120.036, a trial court has

just two options. It may recommend that the offender serve a risk reduction sentence. R.C.

2929.143(A). Conversely, of course, it may decide not to recommend a risk reduction sentence,

which is what the trial court decided to do in this case. Again, we find no abuse of discretion in

the trial court’s decision not to recommend a risk reduction sentence.

       {¶ 23} Hoover’s Second Assignment of Error is overruled.



         V. The Trial Court Did Not Abuse its Discretion by Imposing a $250 Fine
                                                                                                         9


       {¶ 24} Hoover’s Third Assignment of Error is as follows:

               THE TRIAL COURT ERRED IN IMPOSING A FINE UPON

       APPELLANT.

       {¶ 25} The trial court imposed a $250 fine. It could have imposed a fine of up to

$2,500.

       {¶ 26} Hoover argues that the imposition of the $250 fine was unreasonable because,

although he had a job at the time of his sentencing, as a result of his incarceration he has lost that

job. Hoover cites State v. Collier, 184 Ohio App.3d 247, 2009-Ohio-4652, 920 N.E.2d 416

(10th Dist.), for the proposition that before imposing a fine, a trial court must consider the

offender’s present and future ability to pay a fine. Id. at ¶ 11. In that case, a defendant who had

been found to be indigent was sentenced to fifteen years in prison and fined $20,000 for two

counts of Rape. The court of appeals found that the trial court had indicated in its judgment

entry that it had considered the defendant’s present and future ability to pay the fine. Id. at ¶ 12.

 The court noted that the defendant would be 43 years old upon his release from prison, and that:

               While defendant’s criminal record and incarceration undoubtedly will

       hamper his ability to obtain employment upon his release from prison, defendant

       did not argue in the trial court that he would be unemployable after his release,

       and no evidence in the record suggests any health problems or disabling mental or

       physical condition that would prevent him from working after his release. If

       defendant is unable to pay the $20,000 fine after he has been released from prison,

       he can seek relief under R.C. 2929.18(G), which provides courts an avenue to

       relieve an indigent person of his or her obligation to pay a fine after the person has
                                                                                                       10


       completed the incarceration period of his or her sentence. Id.at ¶ 14.

       {¶ 27} Hoover was 35 years old at the time of his sentencing, so he will be released from

his eleven-month prison sentence at an earlier age than the defendant in Collier. Furthermore,

we would expect that a conviction for Telecommunications Harassment would have significantly

less impact upon an offender’s future employability than the two Rape convictions with which

the defendant in Collier was saddled. Also, a fine of $250 is a much lighter financial burden

than the $20,000 fine imposed on the defendant in Collier. And if the burden should be more

than Hoover can shoulder upon his release from prison, he can apply for relief under R.C.

2929.18(G).

       {¶ 28} The record reflects that the trial court did consider Hoover’s present and future

ability to pay the $250 fine. In its sentencing entry, the trial court stated: “The Court found from

the information presented that the Defendant is not indigent for costs, fine, and restitution 2

purposes and Defendant is employable and in good health. The Defendant is able to pay costs

and fine upon release from confinement.”

       {¶ 29} We conclude that the trial court was within its discretion when it imposed a $250

fine. Hoover’s Third Assignment of Error is overruled.



                                           VI. Conclusion

       {¶ 30} All of Hoover’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

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

         2
             No restitution was awarded.
                                                                                                     11


DONOVAN, J., concurs.

FROELICH, J., concurring:

       {¶ 31}     There is certainly a reasoned argument that eleven months in state prison is not

the “minimum sanction” that would have accomplished the goals of punishing the offender and

protecting the public without “an unnecessary burden on State or local government resources.”

R.C. 2929.11(A). However, the court followed the statues and, with the record before us, did

not abuse its discretion.

                                           ..........



Copies mailed to:

Kevin S. Talebi
Jennifer E. Geller
Darrell L. Heckman
Hon. Nick A. Selvaggio
