[Cite as State v. Bennett, 2011-Ohio-3387.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95654
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DEONTE BENNETT DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-535160, CR-535402, and CR-538045
BEFORE: Boyle, J., Blackmon, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: July 7, 2011 2
ATTORNEYS FOR APPELLANT
Aaron T. Baker Aaron T. Baker Co., L.P.A. P.O. Box 824 Willoughby, Ohio 44096
William L. Summers William L. Summers & Associates Co., L.P.A. Landerbrook Corporate Center II 5910 Landerbrook Drive, Suite 200 Cleveland, Ohio 44124
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: John P. Colan Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, Deonte Bennett, appeals his sentences in connection with
three separate cases, raising the following two assignments of error:
{¶ 2} “I. The trial court abused its discretion in sentencing appellant without
considering the overriding purpose of felony sentencing or the mandatory sentencing factors. 3
{¶ 3} “II. The trial court abused its discretion in sentencing appellant without
articulating judicially reviewable reasons for imposition of the sentence.”
{¶ 4} We find his arguments unpersuasive and affirm.
Procedural History and Facts
{¶ 5} In March 2010, Bennett was indicted in Case No. CR-535160 on the following
four counts for events occurring on March 8, 2010: (1) drug trafficking, in violation of R.C.
2925.03(A)(2); (2) drug possession, in violation of R.C. 2925.11(A); (3) tampering with
evidence, in violation of R.C. 2921.12(A)(1); and (4) possession of criminal tools, in violation
of R.C. 2923.24(A). Approximately a week later, Bennett was indicted in Case No.
CR-535402 for a single count of drug possession, in violation of R.C. 2925.11(A), for his
alleged possession of crack cocaine on March 14, 2010. Pursuant to a plea agreement,
Bennett ultimately pled guilty to an amended indictment in each case. In the first case, Case
No. CR-535160, he pled guilty to drug possession, a felony of the third degree, and the
remaining charges were dismissed. In the second case, Case No. CR-535402, he pled guilty
to a single count of attempted drug possession, a misdemeanor of the first degree.
{¶ 6} In June 2010, Bennett was indicted in a third case, Case No. CR-538045, on
three counts: (1) drug trafficking, in violation of R.C. 2925.03(A)(2); (2) drug possession, in
violation of R.C. 2925.11(A); and (3) possession of criminal tools, in violation of R.C. 4
2923.24(A). In this case, Bennett ultimately pled guilty to drug possession, a felony of the
fourth degree, and the remaining charges were dismissed.
{¶ 7} Following Bennett’s guilty plea, the trial court sentenced him in connection
with all three cases. The court imposed a prison sentence of four years and a fine of $5,000
for the third degree drug possession count in Case No. CR-535160; a fine of $250 for the first
degree misdemeanor in Case No. CR-535402; and 17 months in prison for the fourth degree
drug possession count in Case No. CR-538045, to run consecutively with the four-year
sentence. The court also suspended Bennett’s driver’s license until January 28, 2011. The
trial court further informed Bennett that he would be subject to three-years mandatory
postrelease control following his release from prison.
Sentence
{¶ 8} In his first assignment of error, Bennett argues that the trial court abused its
discretion in sentencing him to nearly the maximum because it failed to consider the
overriding purposes of felony sentencing or the mandatory sentencing factors, as outlined in
R.C. 2929.11 and 2929.12. He further argues in his second assignment of error that his
sentence must be vacated because the court failed to state its reasoning in support of his
sentence. We disagree.
{¶ 9} Appellate courts must apply a two-step approach when reviewing a defendant’s
sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “First, 5
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 shall be reviewed under an
abuse-of-discretion standard.” Id.
{¶ 10} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio
Supreme Court held 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.” Id. at ¶100.
Indeed, Foster severed those sections of the Revised Code that required trial courts to make
findings of fact before sentencing an offender to maximum or consecutive sentences. Id. at
paragraphs one and three of the syllabus. The Supreme Court recently upheld Foster in State
v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.
{¶ 11} In Kalish, the Supreme Court explained that “[a]lthough Foster eliminated
mandatory judicial fact-finding for upward departures from the minimum, it left intact R.C.
2929.11 and 2929.12. The trial court must still consider these statutes.” Id. at ¶13, citing
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶38.
{¶ 12} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.” Kalish at ¶17.
“Instead, they serve as an overarching guide for trial judges to consider in fashioning an
appropriate sentence. In considering these statutes in light of Foster, the trial court has full 6
discretion to determine whether the sentence satisfies the overriding purpose of Ohio’s
sentencing structure. Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its
discretion in considering whether its sentence complies with the purposes of sentencing.” Id.
“Therefore, assuming the trial court has complied with the applicable rules and statutes, the
exercise of its discretion in selecting a sentence within the permissible statutory range is
subject to review for abuse of discretion pursuant to Foster.” Id.
{¶ 13} In Kalish, the Supreme Court also made clear that even after Foster, “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.” Id. at fn. 4, citing
State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.
{¶ 14} R.C. 2929.11(A) provides that when a trial court sentences an offender for a
felony conviction it must be guided by the “overriding purposes of felony sentencing.”
Those purposes are “to protect the public from future crime by the offender and others and to
punish the offender.” R.C. 2929.11(B) states that a felony sentence “must be reasonably
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[Cite as State v. Bennett, 2011-Ohio-3387.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95654
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DEONTE BENNETT DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-535160, CR-535402, and CR-538045
BEFORE: Boyle, J., Blackmon, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: July 7, 2011 2
ATTORNEYS FOR APPELLANT
Aaron T. Baker Aaron T. Baker Co., L.P.A. P.O. Box 824 Willoughby, Ohio 44096
William L. Summers William L. Summers & Associates Co., L.P.A. Landerbrook Corporate Center II 5910 Landerbrook Drive, Suite 200 Cleveland, Ohio 44124
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: John P. Colan Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, Deonte Bennett, appeals his sentences in connection with
three separate cases, raising the following two assignments of error:
{¶ 2} “I. The trial court abused its discretion in sentencing appellant without
considering the overriding purpose of felony sentencing or the mandatory sentencing factors. 3
{¶ 3} “II. The trial court abused its discretion in sentencing appellant without
articulating judicially reviewable reasons for imposition of the sentence.”
{¶ 4} We find his arguments unpersuasive and affirm.
Procedural History and Facts
{¶ 5} In March 2010, Bennett was indicted in Case No. CR-535160 on the following
four counts for events occurring on March 8, 2010: (1) drug trafficking, in violation of R.C.
2925.03(A)(2); (2) drug possession, in violation of R.C. 2925.11(A); (3) tampering with
evidence, in violation of R.C. 2921.12(A)(1); and (4) possession of criminal tools, in violation
of R.C. 2923.24(A). Approximately a week later, Bennett was indicted in Case No.
CR-535402 for a single count of drug possession, in violation of R.C. 2925.11(A), for his
alleged possession of crack cocaine on March 14, 2010. Pursuant to a plea agreement,
Bennett ultimately pled guilty to an amended indictment in each case. In the first case, Case
No. CR-535160, he pled guilty to drug possession, a felony of the third degree, and the
remaining charges were dismissed. In the second case, Case No. CR-535402, he pled guilty
to a single count of attempted drug possession, a misdemeanor of the first degree.
{¶ 6} In June 2010, Bennett was indicted in a third case, Case No. CR-538045, on
three counts: (1) drug trafficking, in violation of R.C. 2925.03(A)(2); (2) drug possession, in
violation of R.C. 2925.11(A); and (3) possession of criminal tools, in violation of R.C. 4
2923.24(A). In this case, Bennett ultimately pled guilty to drug possession, a felony of the
fourth degree, and the remaining charges were dismissed.
{¶ 7} Following Bennett’s guilty plea, the trial court sentenced him in connection
with all three cases. The court imposed a prison sentence of four years and a fine of $5,000
for the third degree drug possession count in Case No. CR-535160; a fine of $250 for the first
degree misdemeanor in Case No. CR-535402; and 17 months in prison for the fourth degree
drug possession count in Case No. CR-538045, to run consecutively with the four-year
sentence. The court also suspended Bennett’s driver’s license until January 28, 2011. The
trial court further informed Bennett that he would be subject to three-years mandatory
postrelease control following his release from prison.
Sentence
{¶ 8} In his first assignment of error, Bennett argues that the trial court abused its
discretion in sentencing him to nearly the maximum because it failed to consider the
overriding purposes of felony sentencing or the mandatory sentencing factors, as outlined in
R.C. 2929.11 and 2929.12. He further argues in his second assignment of error that his
sentence must be vacated because the court failed to state its reasoning in support of his
sentence. We disagree.
{¶ 9} Appellate courts must apply a two-step approach when reviewing a defendant’s
sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “First, 5
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 shall be reviewed under an
abuse-of-discretion standard.” Id.
{¶ 10} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio
Supreme Court held 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.” Id. at ¶100.
Indeed, Foster severed those sections of the Revised Code that required trial courts to make
findings of fact before sentencing an offender to maximum or consecutive sentences. Id. at
paragraphs one and three of the syllabus. The Supreme Court recently upheld Foster in State
v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.
{¶ 11} In Kalish, the Supreme Court explained that “[a]lthough Foster eliminated
mandatory judicial fact-finding for upward departures from the minimum, it left intact R.C.
2929.11 and 2929.12. The trial court must still consider these statutes.” Id. at ¶13, citing
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶38.
{¶ 12} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.” Kalish at ¶17.
“Instead, they serve as an overarching guide for trial judges to consider in fashioning an
appropriate sentence. In considering these statutes in light of Foster, the trial court has full 6
discretion to determine whether the sentence satisfies the overriding purpose of Ohio’s
sentencing structure. Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its
discretion in considering whether its sentence complies with the purposes of sentencing.” Id.
“Therefore, assuming the trial court has complied with the applicable rules and statutes, the
exercise of its discretion in selecting a sentence within the permissible statutory range is
subject to review for abuse of discretion pursuant to Foster.” Id.
{¶ 13} In Kalish, the Supreme Court also made clear that even after Foster, “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.” Id. at fn. 4, citing
State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.
{¶ 14} R.C. 2929.11(A) provides that when a trial court sentences an offender for a
felony conviction it must be guided by the “overriding purposes of felony sentencing.”
Those purposes are “to protect the public from future crime by the offender and others and to
punish the offender.” R.C. 2929.11(B) states that a felony sentence “must be reasonably
calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with and
not demeaning to the seriousness of the crime and its impact on the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.” And R.C. 2929.12
sets forth factors concerning the seriousness of the offense and recidivism factors. 7
{¶ 15} After reviewing the record in this case, we find that it supports the inference
that the trial court properly considered the factors in R.C. 2929.12 and adhered to the purposes
and principles of sentencing set forth in R.C. 2929.11. Here, the trial court specifically noted
in the sentencing entries that it considered “all required factors of law,” which this court has
previously held “is sufficient to show the consideration required by the court.” State v.
Woodward, 8th Dist. Nos. 94672 and 94673, 2011-Ohio-104, ¶6.
{¶ 16} We find no support in the record that the trial court abused its discretion in
imposing an aggregate sentence of five years and five months in prison for all three cases — a
sentence below the maximum and within the statutory range for the offenses. Indeed, the
record reveals that the trial court ordered a PSI prior to sentencing and relied on the PSI before
imposing a less than maximum sentence in each case. The PSI report reveals that Bennett
has a history of criminal convictions, including a juvenile record. The record further reveals
that Bennett was under postrelease control at the time that he committed the underlying
offenses. All of these factors sufficiently justified the length of Bennett’s sentence.
{¶ 17} Finally, as for Bennett’s claim that the trial court abused its discretion in failing
to state its reasons on the record, there is no requirement for the trial court to do so. See
Hodge, supra.
{¶ 18} Accordingly, the first and second assignments of error are overruled.
Judgment affirmed. 8
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
PATRICIA ANN BLACKMON, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR