[Cite as State v. Beville, 2013-Ohio-2139.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2012-A-0057 - vs - :
ROBERT BEVILLE, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012 CR 189.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Robert Beville, appeals from the Judgment Entry of
the Ashtabula County Court of Common Pleas, sentencing him to a term of three years
in prison for Conspiracy to Trafficking in Marijuana. The issue to be decided by this
court is whether a trial court is required to explicitly state that it has considered the
seriousness and recidivism factors set forth in R.C. 2929.12, and its reasons for giving
the maximum sentence. For the following reasons, we affirm the decision of the court
below. {¶2} On April 12, 2012, Beville was indicted by the Ashtabula County Grand
Jury on one count of Engaging in a Pattern of Corrupt Activity, a felony of the first
degree, in violation of R.C. 2923.32(A)(1) and (B)(1); one count of Complicity to
Trafficking in Marijuana, a felony of the second degree, in violation of R.C.
2925.03(A)(1) and (C)(3)(f) and R.C. 2923.03; and one count of Conspiracy to
Trafficking in Marijuana, a felony of the third degree, in violation of R.C. 2925.03(A)(1)
and (C)(3)(f) and R.C. 2923.01(A)(2).
{¶3} On August 20, 2012, a plea hearing was held, at which Beville pled guilty
to one count of Conspiracy to Trafficking in Marijuana, as set forth in count three of the
Indictment. The State moved to dismiss the remaining two counts of the Indictment.
The written Plea of Guilty, signed by Beville, was filed on August 21, 2012. A Judgment
Entry was filed on August 22, 2012, memorializing the plea hearing.
{¶4} A sentencing hearing in this matter was held on October 22, 2012. During
the hearing, defense counsel explained that Beville had cooperated with authorities.
The State emphasized Beville’s lengthy criminal record. The court noted that Beville
had prior felony convictions and that he had two chances at community control, which
he violated. The court stated that Beville “continued to be involved in criminal activity”
and failed to follow through with any of the opportunities he had to participate in various
drug addiction programs. Beville was sentenced to a term of three years imprisonment.
The court noted that there was a $5,000 mandatory fine, but informed counsel to file a
motion to waive the fine.
{¶5} Beville’s sentence was memorialized in an October 23, 2012 Judgment
Entry. The Entry stated that the court had considered the record and statements given,
2 as well as “the principles and purposes of sentencing under R.C. 2929.11.”
{¶6} On October 25, 2012, Beville filed a Motion to Waive Fine, which was
granted in a November 7, 2012 Judgment Entry.
{¶7} Beville timely appeals and raises the following assignment of error:
{¶8} “The trial court erred when sentencing the appellant to the maximum
sentence for violating R.C. §2923.01.”
{¶9} Subsequent to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, appellate courts have applied a two step approach in reviewing felony
sentences. First, courts “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 is reviewed under the abuse-of-discretion
standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 26.
{¶10} A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing, which 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.” R.C. 2929.11(A). A
court imposing a sentence for a felony “has discretion to determine the most effective
way to comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code.” R.C. 2929.12(A). “In the exercise of this discretion, a
court ‘shall consider’ the non-exclusive list of seriousness and recidivism factors set
3 forth in R.C. 2929.12(B), (C), (D), and (E).” (Citation omitted.) State v. Putnam, 11th
Dist. No. 2012-L-026, 2012-Ohio-4891, ¶ 8; R.C. 2929.12(A).
{¶11} There is no “mandate” for the sentencing court to engage in any factual
finding under these statutes. Rather, “[t]he court is merely to ‘consider’ the statutory
factors.” Foster at ¶ 42. This standard continues to be applicable after the recent
enactment of H.B. 86, which did not amend R.C. 2929.12. Putnam at ¶ 9, citing State v.
Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 24 (R.C.
2929.12 is “not [a] fact-finding statute[] like R.C. 2929.14”).
{¶12} Beville acknowledges that his sentence was within the appropriate range
and does not argue that the sentence was clearly and convincingly contrary to law. He
asserts, however, that the trial court abused its discretion by failing to consider the
factors found in R.C. 2929.12.
{¶13} The State contends that the trial court considered Beville’s prior
convictions and failure to follow through with counseling opportunities in the past, and
gave careful and substantial deliberation to the relevant statutory considerations.
{¶14} The trial court did not explicitly state, either during the sentencing hearing
or in its judgment entry, that it had considered the factors in R.C. 2929.12. During the
hearing, the court did address Beville’s repeated commission of marijuana-related
crimes, including a charge that occurred while the present matter was pending. The
court also pointed out that Beville had opportunities in the past under community
control, which he violated, and had been presented with the chance to treat his
addiction through counseling, which he failed to complete. The Judgment Entry stated
that the court considered the record, oral statements given at the sentencing hearing,
4 and the presentence report, which discussed both Beville’s cooperation with police and
his criminal history. These factors relate to recidivism and future crime, which are to be
considered under R.C. 2929.12.
{¶15} In addition, while the trial court must consider the R.C. 2929.12 factors,
this court has held that there is no requirement that “the sentencing judge must use
specific language or make specific findings on the record in order to evince the requisite
consideration of the applicable seriousness and recidivism factors.” State v. Hutchings,
11th Dist. Nos. 2011-P-0019, et al., 2012-Ohio-649, ¶ 36, quoting State v. Arnett, 88
Ohio St.3d 208, 215,
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[Cite as State v. Beville, 2013-Ohio-2139.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2012-A-0057 - vs - :
ROBERT BEVILLE, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012 CR 189.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Robert Beville, appeals from the Judgment Entry of
the Ashtabula County Court of Common Pleas, sentencing him to a term of three years
in prison for Conspiracy to Trafficking in Marijuana. The issue to be decided by this
court is whether a trial court is required to explicitly state that it has considered the
seriousness and recidivism factors set forth in R.C. 2929.12, and its reasons for giving
the maximum sentence. For the following reasons, we affirm the decision of the court
below. {¶2} On April 12, 2012, Beville was indicted by the Ashtabula County Grand
Jury on one count of Engaging in a Pattern of Corrupt Activity, a felony of the first
degree, in violation of R.C. 2923.32(A)(1) and (B)(1); one count of Complicity to
Trafficking in Marijuana, a felony of the second degree, in violation of R.C.
2925.03(A)(1) and (C)(3)(f) and R.C. 2923.03; and one count of Conspiracy to
Trafficking in Marijuana, a felony of the third degree, in violation of R.C. 2925.03(A)(1)
and (C)(3)(f) and R.C. 2923.01(A)(2).
{¶3} On August 20, 2012, a plea hearing was held, at which Beville pled guilty
to one count of Conspiracy to Trafficking in Marijuana, as set forth in count three of the
Indictment. The State moved to dismiss the remaining two counts of the Indictment.
The written Plea of Guilty, signed by Beville, was filed on August 21, 2012. A Judgment
Entry was filed on August 22, 2012, memorializing the plea hearing.
{¶4} A sentencing hearing in this matter was held on October 22, 2012. During
the hearing, defense counsel explained that Beville had cooperated with authorities.
The State emphasized Beville’s lengthy criminal record. The court noted that Beville
had prior felony convictions and that he had two chances at community control, which
he violated. The court stated that Beville “continued to be involved in criminal activity”
and failed to follow through with any of the opportunities he had to participate in various
drug addiction programs. Beville was sentenced to a term of three years imprisonment.
The court noted that there was a $5,000 mandatory fine, but informed counsel to file a
motion to waive the fine.
{¶5} Beville’s sentence was memorialized in an October 23, 2012 Judgment
Entry. The Entry stated that the court had considered the record and statements given,
2 as well as “the principles and purposes of sentencing under R.C. 2929.11.”
{¶6} On October 25, 2012, Beville filed a Motion to Waive Fine, which was
granted in a November 7, 2012 Judgment Entry.
{¶7} Beville timely appeals and raises the following assignment of error:
{¶8} “The trial court erred when sentencing the appellant to the maximum
sentence for violating R.C. §2923.01.”
{¶9} Subsequent to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, appellate courts have applied a two step approach in reviewing felony
sentences. First, courts “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 is reviewed under the abuse-of-discretion
standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 26.
{¶10} A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing, which 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.” R.C. 2929.11(A). A
court imposing a sentence for a felony “has discretion to determine the most effective
way to comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code.” R.C. 2929.12(A). “In the exercise of this discretion, a
court ‘shall consider’ the non-exclusive list of seriousness and recidivism factors set
3 forth in R.C. 2929.12(B), (C), (D), and (E).” (Citation omitted.) State v. Putnam, 11th
Dist. No. 2012-L-026, 2012-Ohio-4891, ¶ 8; R.C. 2929.12(A).
{¶11} There is no “mandate” for the sentencing court to engage in any factual
finding under these statutes. Rather, “[t]he court is merely to ‘consider’ the statutory
factors.” Foster at ¶ 42. This standard continues to be applicable after the recent
enactment of H.B. 86, which did not amend R.C. 2929.12. Putnam at ¶ 9, citing State v.
Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 24 (R.C.
2929.12 is “not [a] fact-finding statute[] like R.C. 2929.14”).
{¶12} Beville acknowledges that his sentence was within the appropriate range
and does not argue that the sentence was clearly and convincingly contrary to law. He
asserts, however, that the trial court abused its discretion by failing to consider the
factors found in R.C. 2929.12.
{¶13} The State contends that the trial court considered Beville’s prior
convictions and failure to follow through with counseling opportunities in the past, and
gave careful and substantial deliberation to the relevant statutory considerations.
{¶14} The trial court did not explicitly state, either during the sentencing hearing
or in its judgment entry, that it had considered the factors in R.C. 2929.12. During the
hearing, the court did address Beville’s repeated commission of marijuana-related
crimes, including a charge that occurred while the present matter was pending. The
court also pointed out that Beville had opportunities in the past under community
control, which he violated, and had been presented with the chance to treat his
addiction through counseling, which he failed to complete. The Judgment Entry stated
that the court considered the record, oral statements given at the sentencing hearing,
4 and the presentence report, which discussed both Beville’s cooperation with police and
his criminal history. These factors relate to recidivism and future crime, which are to be
considered under R.C. 2929.12.
{¶15} In addition, while the trial court must consider the R.C. 2929.12 factors,
this court has held that there is no requirement that “the sentencing judge must use
specific language or make specific findings on the record in order to evince the requisite
consideration of the applicable seriousness and recidivism factors.” State v. Hutchings,
11th Dist. Nos. 2011-P-0019, et al., 2012-Ohio-649, ¶ 36, quoting State v. Arnett, 88
Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). “[A] silent record raises a presumption
that the relevant statutory factors were duly considered before the sentencing
determination was made.” (Citation omitted.) State v. Overstreet, 11th Dist. No. 2012-
P-0049, 2013-Ohio-540, ¶ 26; State v. Chapdelaine, 11th Dist. No. 2009-L-166, 2010-
Ohio-2683, ¶ 14 (“R.C. 2929.12 neither requires a sentencing court to discuss the
statutory criteria on record nor even state on the record that it has considered them”).
Although the trial court did not explicitly state in the sentencing entry that it considered
all of the factors in R.C. 2929.12 or make conclusions or statements on the seriousness
of the crime factors, this was not required. Hutchings at ¶ 35 (“the trial court’s failure to
reference R.C. 2929.11 or 2929.12 in its sentencing entry does not demonstrate its
failure to consider the appropriate statutory factors”).
{¶16} Moreover, Beville has not provided any support to rebut the presumption
that the court considered the proper factors. It is Beville’s obligation to rebut this
presumption. State v. Bernadine, 11th Dist. No. 2010-P-0056, 2011-Ohio-4023, ¶ 38,
citing State v. Nenzoski, 11th Dist. No. 2007-P-0044, 2008-Ohio-3253, ¶ 63 (“[t]he
5 burden is on the defendant to come forward with evidence to rebut the presumption that
the trial court considered the sentencing criteria”). Beville has not demonstrated that
the trial court failed to consider the factors or that the sentence was inconsistent with
such factors, nor is there anything in the record showing that the court ignored the
factors, especially given the foregoing discussion of its consideration of Beville’s
criminal record and the statements given at the sentencing hearing.
{¶17} Beville also argues that the court did not find that the maximum sentence
“was consistent with the purposes of R.C. 2929.11.”
{¶18} Regarding sentencing, the Supreme Court of Ohio held in Foster 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 * *
* sentences.” 109 Ohio St.3d 1, 845 N.E.2d 470, at paragraph seven of the syllabus;
State v. Hoolihan, 11th Dist. No. 2012-T-0023, 2012-Ohio-5837, ¶ 5. The trial court was
not required to state its reasons for giving the maximum penalty in this matter, although
it did emphasize Beville’s past criminal history, as outlined above. Further, the court
stated in its Judgment Entry that a prison term was “consistent with the purposes of
ORC 2929.11,” and that it had considered the principles and purposes of sentencing
under R.C. 2929.11, even though such a statement was not required. Based on the
foregoing, we cannot find that the trial court erred in either sentencing Beville to the
maximum sentence or in considering the necessary factors for sentencing.
{¶19} The sole assignment of error is without merit.
6 {¶20} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, sentencing Beville to a prison term of three years for Conspiracy to
Trafficking in Marijuana, is affirmed. Costs to be taxed against appellant.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.