State v. Banks

2013 Ohio 2847

Opinion

[Cite as State v. Banks, 2013-Ohio-2847.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 12-COA-045 BRYAN K. BANKS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case No. 12-CRI- 077

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 28, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAUL LANGE MATTHEW MALONE RAMONA ROGERS 11 ½ East 2nd Street 110 Cottage Street Ashland, OH 44805 Ashland, OH 44805 [Cite as State v. Banks, 2013-Ohio-2847.]

Gwin, P.J.

{¶1} On June 28, 2012, appellant Bryan K. Banks [“Banks”] was indicted on

three counts. Banks was charged with one count of Gross Sexual Imposition with victim

less than 13 years of age, R.C. 2907.05(A)(4), a felony of the third degree; one count of

Importuning with the victim less than 13 years of age, R.C. 2907.07(A), a felony of the

third degree; and one count of Disseminating Matter Harmful to Juveniles, R.C.

2907.31(A)(1), a first-degree misdemeanor.

{¶2} On September 18, 2012, Banks entered a negotiated plea to Importuning

with the victim less than 13 years of age and Disseminating Matter Harmful to Juveniles.

Sentencing was deferred pending the completion of a Pre-Sentence Investigation

Report.

{¶3} On November 5, 2012, the trial court sentenced Banks on the charge of

Importuning, in violation of R.C. 2907.07(A), a felony of the third degree, to thirty (30)

months in prison, a fine of Five Hundred Dollars ($500.00), and court costs; and on the

charge of Disseminating Matter Harmful to Juveniles in violation of R.C. 2907.31(A)(1) a

misdemeanor of the first degree, one hundred eighty (180) days in jail to be served

concurrently with the sentence imposed for Count Two, a fine of Five Hundred Dollars

($500.00), and court costs.

Assignments of Error

{¶4} Banks raises two assignments of error:

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

IMPOSED A SENTENCE UPON DEFENDANT/APPELLANT THAT WAS CLEARLY Ashland County, Case No. 12-COA-045 3

AND CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF SAID COURT'S

DISCRETION.

{¶6} “II. THE SENTENCE IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED

CODE SECTION 2929.13(A).”

I.

{¶7} In his first assignment of error, Banks challenges his sentence for

importuning.

{¶8} 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,

2008-Ohio-6709, 2008 WL 5265826.

{¶9} 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,¶¶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, 5th Dist. No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175. Ashland County, Case No. 12-COA-045 4

{¶10} “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.

{¶11} “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.

{¶12} 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.

{¶13} 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 Ashland County, Case No. 12-COA-045 5

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.

{¶14} In the case at bar, Banks pled guilty and was convicted of a felony of the

third degree. Sentences that a court can impose are nine, twelve, eighteen, twenty-four,

thirty, or thirty-six months. R.C. 2929.14(A)(3)(b). Banks was sentenced to thirty

months.

{¶15} 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

Code and advised Banks regarding post release control. Therefore, the sentence is not

clearly and convincingly contrary to law.

{¶16} 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.

{¶17} Post-Foster, “there is no mandate for judicial fact-finding in the general

guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶42. Ashland County, Case No. 12-COA-045 6

State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist.

No. 05CA815, 2006-Ohio-2753, ¶¶7-8. Therefore, post-Foster, trial courts are still

required to consider the general guidance factors in their sentencing decisions.

{¶18} 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, 101 Ohio App.3d 428, 431(4th Dist.

1995); State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶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, ¶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), State v. Woods, 5th Dist. No. 05 CA 46, 2006-

Ohio-1342, ¶19 (“... R.C. 2929.12 does not require specific language or specific findings

on the record in order to show that the trial court considered the applicable seriousness

and recidivism factors”). (Citations omitted).

{¶19} 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. 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, 5th Dist No. 2006-CA41, 2006-Ohio-5823 at ¶ 52.

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

record establishes that a trial judge refused or failed to consider statutory sentencing Ashland County, Case No. 12-COA-045 7

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 court's 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.

{¶21} In the case at bar, the court had the benefit of a pre-sentence investigation

report. That report details Banks’ prior adult and juvenile adjudications. It further reveals

that Banks was on probation at the time he committed the offenses in the case at bar.

Banks has never been employed, does not have a GED and has a history of substance

abuse. Banks is 20 years old while the victim in this case was 12 years old. There is a

presumption of prison for importuning notwithstanding division (C) of section 2929.13 of

the Revised Code. R.C. 2907.07(F)(2).

{¶22} Both on the record during the sentencing hearing and in the sentencing

entry filed November 7, 2012, the trial court noted specifically that it had considered the

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

seriousness and recidivism factors under R.C. 2929.12. Ashland County, Case No. 12-COA-045 8

{¶23} 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 Banks’ case to suggest that his

sentence was based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment.

{¶24} Accordingly, we hold the thirty-month sentence in this matter was not

based on the consideration of improper factors and was not unreasonable, arbitrary or

unconscionable. We further hold said sentence is not contrary to law.

{¶25} Banks’ first assignment of error is overruled.

II.

{¶26} In his second assignment of error, Banks contends that his sentence

violates the general assembly's intent to minimize the unnecessary burden on state and

local government resources.

{¶27} In State v. Ober, 2nd Dist. No. 97CA0019, 1997 WL 624811(Oct. 10,

1997), the Second District considered this same issue. In rejecting the argument, the

court stated,

Ober is correct that the “sentence shall not impose an unnecessary

burden on state or local government resources.” R.C. 2929.19(A).

According to criminal law experts, this resource principle ‘impacts on the

application of the presumptions also contained in this section and upon

the exercise of discretion.’ Griffin & Katz, Ohio Felony Sentencing Law

(1996-97), 62. Courts may consider whether a criminal sanction would Ashland County, Case No. 12-COA-045 9

unduly burden resources when deciding whether a second-degree felony

offender has overcome the presumption in favor of imprisonment because

the resource principle is consistent with the overriding purposes and

principles of felony sentencing set forth in R.C.2929.11. Id.”

{¶28} The Ober court concluded, “[a]lthough resource burdens may be a

relevant sentencing criterion, R.C. 2929.13(D) does not require trial courts to elevate

resource conservation above the seriousness and recidivism factors. Imposing a

community control sanction on Ober may have saved state and local government funds;

however, this factor alone would not usually overcome the presumption in favor of

imprisonment.” Id.

{¶29} Several other appellate courts, including our own, considering these

issues have reached the same conclusion. See, e.g., State v. Hyland, 12th Dist. No.

CA2005-05-103, 2006-Ohio-339, ¶32; State v. Brooks, 10th Dist. No. 97APA-11-1543,

1998 WL 514111(Aug. 18, 1998); State v. Stewart, 8th Dist. No. 74691, 1999 WL

126940 (Mar. 4, 1999); State v. Fox, 3rd Dist. No. 16-2000-17, 2001 WL 218433( Mar.

6, 2001); State v. Miller, 5th Dist. No. 04-COA-003, 2004-Ohio-4636. We agree with the

reasoning of the Ober court and other courts considering this issue and find no merit to

appellant's argument.

{¶30} In State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, the Court

observed, that although resource burdens are relevant sentencing considerations under

R.C. 2929.13(A), a sentencing court is not required to elevate resource conservation

above seriousness and recidivism factors. Id. at ¶39, 889 N.E.2d 995. The Burton court

noted, Ashland County, Case No. 12-COA-045 10

“The court must also consider the benefit to society in assuring that

an offender will not be free to reoffend. Many people sleep better at night

knowing that certain offenders are incarcerated. They would no doubt

consider a lengthy incarceration worth the cost of housing those

offenders.”

Id. at ¶39, 889 N.E.2d 995. Quoting State v. Wolfe, 7th Dist. No. 03 CO 45, 2004–Ohio–

3044, ¶17 and State v. Vlahopoulos, 154 Ohio App.3d 450, 797 N.E.2d 580, 2003–

Ohio–5070, ¶5.

{¶31} In the case at bar we reject Banks’ claim that a lengthy prison sentence

constitutes an “unnecessary burden” on government resources pursuant to R.C.

2929.13(A).

{¶32} Banks’ second assignment of error is overruled. Ashland County, Case No. 12-COA-045 11

{¶33} For the reasons stated in the foregoing opinion, the decision of the Court

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

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER

_________________________________ HON. JOHN W. WISE

WSG:clw 0621 [Cite as State v. Banks, 2013-Ohio-2847.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : BRYAN K. BANKS : : : Defendant-Appellant : CASE NO. 12-COA-045

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

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

appellant.