[Cite as State v. Bump, 2012-Ohio-337.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
CHRISTOPHER M. BUMP
Defendant-Appellant
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.
Case No. 11-COA-028
OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Common Pleas Court, Trial Court Number 11-CRI-008
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 27, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS ERIN N. POPLAR Ashland County Prosecutor Erin Poplar Law, LLC 110 Cottage Street, Third Floor 1636 Eagle Way Ashland, Ohio 44805 Ashland, Ohio 44805
PAUL T. LANGE Assistant Prosecuting Attorney 110 Cottage Street, Third Floor Ashland, Ohio 44805 Hoffman, J.
(¶1) Defendant-appellant Christopher M. Bump appeals his sentence entered
by the Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
(¶2) On February 25, 2011, the Ashland County Grand Jury indicted Appellant
on one count of grand theft of a vehicle, in violation of R.C. 2913.02(A)(1), a fourth
degree felony; one count of unauthorized use of a vehicle, in violation of R.C.
2913.02(A)(1), a fifth degree felony; and two counts of theft, in violation of R.C.
2913.02(A)(1), fifth degree felonies. At arraignment, Appellant entered pleas of not
guilty to all the charges.
(¶3) On April 26, 2011, Appellant changed his plea to guilty on Count II,
unauthorized use of a vehicle and Count III, theft. The State then moved to dismiss the
remaining counts of the Indictment.
(¶4) Via Sentencing Entry of June 24, 2011, the trial court sentenced Appellant
to ten months in prison on Count II, unauthorized use of a vehicle, and ten months on
Count III, theft. The court ordered the terms be served consecutively.
(¶5) Appellant now appeals, assigning as error:
(¶6) “THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE 10-
MONTH SENTENCES FOR TWO FIFTH DEGREE FELONY CONVICTIONS SUCH
THAT THE AGREEGATE [SIC] SENTENCE EXCEEDED THE MAXIMUM PRISON
TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR THE MOST SERIOUS
OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 12 MONTHS.” (¶7) The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912 set forth a two step process for examining felony sentences. The first step is
to “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.” Kalish at ¶ 4. If this first step “is satisfied,” the second step requires the
trial court's decision be “reviewed under an abuse-of-discretion standard.” Id.
(¶8) The relevant sentencing law is now controlled by the Ohio Supreme
Court's decision in State v. Foster, i.e. “ * * * 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.” 109 Ohio St.3d 1, 30, 2006–Ohio–856 at ¶ 100, 845 N.E.2d 470, 498.
(¶9) The record herein reflects Appellant was sentenced to a prison term of ten
months for the fifth degree felony of unauthorized use of a motor vehicle, and on the
fifth degree felony of theft, the court ordered Appellant also serve ten months. The
sentences were within the statutory guidelines and parameters.
(¶10) The record further reflects 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 Appellant
regarding post release control. Therefore, the sentences are not clearly and
convincingly contrary to law.
(¶11) Having determined the sentences are not contrary to law, we must now
review the sentences, pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v. Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave
careful and substantial deliberation to the relevant statutory considerations.
(¶12) The failure to indicate at the sentencing hearing the court has considered
the factors in R.C. 2929.11 and 2929.12 does not automatically require reversal. State
v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–5819, ¶ 8. “When 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., citing Kalish at ¶ 18, fn.
4. “The Code does not specify 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. Arnett, 88 Ohio St.3d 208, 215,
2000–Ohio–302.
(¶13) Further, the Supreme Court of Ohio held in State v. Hodge, 128 Ohio
St.3d 1, 2010–Ohio–6320, “For all the foregoing reasons, we hold that the decision of
the United States Supreme Court in Oregon v. Ice [ (2009), 555 U.S. 160, 129 S.Ct.
711, 172 L.Ed.2d 517], does not revive Ohio's former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in
State v. Foster. Because the statutory provisions are not revived, trial court judges are
not obligated to engage in judicial fact-finding prior to imposing consecutive sentences
unless the General Assembly enacts new legislation requiring that findings be made.”
See, State v. Fry, Delaware App. No. 10CAA090068, 2011–Ohio–2022 at ¶ 16–17.
(¶14) At the sentencing hearing in this matter, the trial court stated:
(¶15) “In reviewing the Pre-Sentence Investigation Report, I note there are a
number of recidivism more than likely factors, and there is one recidivism less likely factor in that you have had no prior Juvenile Delinquency adjudications, but quite a
history, criminal history as an adult.
(¶16) “And the Court has considered and weighed those factors, and I am
further finding that, in fact, you have served a prior prison term, and that it’s appropriate
in this case after weighing the seriousness and recidivism factors, it’s finding that prison
is consistent with the purposes and principles of the Sentencing Statutes and that you
are not amenable to the Community Control Sanctions, because it appears to the Court
that the prior Courts have tried just about every conceivable Community Control
Sanction and you continue to commit crimes.
(¶17) “I’m finding that you have the future ability to be employed, and to pay
financial sanctions, and further finding based on your prior criminal history and the fact
that it appears most of the types of crimes that you are committing, Mr. Bump, are not
victimless crimes, that, in fact, your crimes are having an impact on the lives of other
individuals, law-abiding citizens.
(¶18) “And I am therefore finding that consecutive prison terms in this case are
necessary to protect the public and they are not disproportionate to the nature of the
crime.”
(¶19) Tr. at 11-12
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[Cite as State v. Bump, 2012-Ohio-337.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
CHRISTOPHER M. BUMP
Defendant-Appellant
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.
Case No. 11-COA-028
OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Common Pleas Court, Trial Court Number 11-CRI-008
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 27, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS ERIN N. POPLAR Ashland County Prosecutor Erin Poplar Law, LLC 110 Cottage Street, Third Floor 1636 Eagle Way Ashland, Ohio 44805 Ashland, Ohio 44805
PAUL T. LANGE Assistant Prosecuting Attorney 110 Cottage Street, Third Floor Ashland, Ohio 44805 Hoffman, J.
(¶1) Defendant-appellant Christopher M. Bump appeals his sentence entered
by the Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
(¶2) On February 25, 2011, the Ashland County Grand Jury indicted Appellant
on one count of grand theft of a vehicle, in violation of R.C. 2913.02(A)(1), a fourth
degree felony; one count of unauthorized use of a vehicle, in violation of R.C.
2913.02(A)(1), a fifth degree felony; and two counts of theft, in violation of R.C.
2913.02(A)(1), fifth degree felonies. At arraignment, Appellant entered pleas of not
guilty to all the charges.
(¶3) On April 26, 2011, Appellant changed his plea to guilty on Count II,
unauthorized use of a vehicle and Count III, theft. The State then moved to dismiss the
remaining counts of the Indictment.
(¶4) Via Sentencing Entry of June 24, 2011, the trial court sentenced Appellant
to ten months in prison on Count II, unauthorized use of a vehicle, and ten months on
Count III, theft. The court ordered the terms be served consecutively.
(¶5) Appellant now appeals, assigning as error:
(¶6) “THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE 10-
MONTH SENTENCES FOR TWO FIFTH DEGREE FELONY CONVICTIONS SUCH
THAT THE AGREEGATE [SIC] SENTENCE EXCEEDED THE MAXIMUM PRISON
TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR THE MOST SERIOUS
OFFENSE OF WHICH THE APPELLANT WAS CONVICTED, 12 MONTHS.” (¶7) The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–
Ohio–4912 set forth a two step process for examining felony sentences. The first step is
to “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.” Kalish at ¶ 4. If this first step “is satisfied,” the second step requires the
trial court's decision be “reviewed under an abuse-of-discretion standard.” Id.
(¶8) The relevant sentencing law is now controlled by the Ohio Supreme
Court's decision in State v. Foster, i.e. “ * * * 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.” 109 Ohio St.3d 1, 30, 2006–Ohio–856 at ¶ 100, 845 N.E.2d 470, 498.
(¶9) The record herein reflects Appellant was sentenced to a prison term of ten
months for the fifth degree felony of unauthorized use of a motor vehicle, and on the
fifth degree felony of theft, the court ordered Appellant also serve ten months. The
sentences were within the statutory guidelines and parameters.
(¶10) The record further reflects 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 Appellant
regarding post release control. Therefore, the sentences are not clearly and
convincingly contrary to law.
(¶11) Having determined the sentences are not contrary to law, we must now
review the sentences, pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v. Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave
careful and substantial deliberation to the relevant statutory considerations.
(¶12) The failure to indicate at the sentencing hearing the court has considered
the factors in R.C. 2929.11 and 2929.12 does not automatically require reversal. State
v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–5819, ¶ 8. “When 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., citing Kalish at ¶ 18, fn.
4. “The Code does not specify 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. Arnett, 88 Ohio St.3d 208, 215,
2000–Ohio–302.
(¶13) Further, the Supreme Court of Ohio held in State v. Hodge, 128 Ohio
St.3d 1, 2010–Ohio–6320, “For all the foregoing reasons, we hold that the decision of
the United States Supreme Court in Oregon v. Ice [ (2009), 555 U.S. 160, 129 S.Ct.
711, 172 L.Ed.2d 517], does not revive Ohio's former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in
State v. Foster. Because the statutory provisions are not revived, trial court judges are
not obligated to engage in judicial fact-finding prior to imposing consecutive sentences
unless the General Assembly enacts new legislation requiring that findings be made.”
See, State v. Fry, Delaware App. No. 10CAA090068, 2011–Ohio–2022 at ¶ 16–17.
(¶14) At the sentencing hearing in this matter, the trial court stated:
(¶15) “In reviewing the Pre-Sentence Investigation Report, I note there are a
number of recidivism more than likely factors, and there is one recidivism less likely factor in that you have had no prior Juvenile Delinquency adjudications, but quite a
history, criminal history as an adult.
(¶16) “And the Court has considered and weighed those factors, and I am
further finding that, in fact, you have served a prior prison term, and that it’s appropriate
in this case after weighing the seriousness and recidivism factors, it’s finding that prison
is consistent with the purposes and principles of the Sentencing Statutes and that you
are not amenable to the Community Control Sanctions, because it appears to the Court
that the prior Courts have tried just about every conceivable Community Control
Sanction and you continue to commit crimes.
(¶17) “I’m finding that you have the future ability to be employed, and to pay
financial sanctions, and further finding based on your prior criminal history and the fact
that it appears most of the types of crimes that you are committing, Mr. Bump, are not
victimless crimes, that, in fact, your crimes are having an impact on the lives of other
individuals, law-abiding citizens.
(¶18) “And I am therefore finding that consecutive prison terms in this case are
necessary to protect the public and they are not disproportionate to the nature of the
crime.”
(¶19) Tr. at 11-12
(¶20) Based on the above, we find the trial court did not abuse its discretion in
imposing consecutive sentences. Appellant’s sole assignment of error is overruled. (¶21) Appellant's sentence in the Ashland County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : CHRISTOPHER M. BUMP : : Defendant-Appellant : Case No. 11-COA-028
For the reasons stated in our accompanying Opinion, Appellant's sentence in the
Ashland County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN