State v. Foster

2021 Ohio 2063

Opinion

[Cite as State v. Foster, 2021-Ohio-2063.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1087

Appellee Trial Court No. CR0201902921

v.

Anthony Darnell Foster DECISION AND JUDGMENT

Appellant Decided: June 21, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

DUHART, J.

{¶ 1} Appellant, Anthony Foster, appeals the judgment entered by the Lucas

County Court of Common Pleas on April 17, 2020, sentencing him to a term of 8 years in

prison. For the reasons that follow, we affirm the judgment of the trial court. {¶ 2} Appellant sets forth the following assignment of error:

Appellant’s sentence should be vacated due to the Trial Court’s

failure to comply with the principles and purposes of sentencing pursuant to

R.C. 2929.11 and R.C. 2929.12.

Statement of the Case and Relevant Facts

{¶ 3} On November 5, 2019, appellant was indicted on five counts of aggravated

arson, including three counts in violation of R.C. 2909.02(A)(1), (B)(1), and (B)(2), all

felonies of the first degree, and two counts in violation of R.C. 2909.02(A)(2), (B)(1),

and (B)(3), both felonies of the second degree. The charges arose out of events that

occurred on September 17, 2018. On April 16, appellant entered a plea of guilty to a

single count of aggravated arson in violation of R.C. 2909.02(A)(2), (B)(1), and (B)(3), a

felony of the second degree.

{¶ 4} In mitigation, appellant, through his attorney, told the trial court that on the

date of the offense, he was asked by an individual for a ride, and that it was not until

appellant was in the car with this individual that appellant understood why the ride was

requested and what was about to happen. Appellant’s trial attorney further provided that

although appellant has been to prison once, his criminal history is short. He also pointed

out that during the lengthy period between the date of the arson and the date of

appellant’s indictment, appellant did not get into any additional trouble with the law.

{¶ 5} Foster apologized to the victim in this case and to the firefighters who were

injured in the blaze.

2. {¶ 6} The victim informed the court that she was home when the house next door

to her was set on fire and subsequently exploded, destroying her dwelling and all of her

personal possessions. She further stated her belief that appellant and his co-defendant

were aware that she was home when they started the fire and caused the explosion.

According to the victim, an iron gate barely missed her, but would have cut her in half

had she been hit. Ultimately, the explosion in the first house led to the total loss of that

house, the victim’s house, and a third house.

{¶ 7} The trial court judge viewed a short video of the explosion, including the

moments that immediately preceded it. He described the video as depicting two

individuals “coming and going[,] carrying what clearly appears to be a gas can.”

{¶ 8} The parties stipulated that pursuant to R.C. 2929.71, restitution in the

amount of $820.41 would be paid to the Toledo Fire Department for investigative costs.

The trial court imposed a prison sentence of eight years, as well as a mandatory term of

three years of post-release control. The court also required appellant’s registration for the

arson database.

Analysis

{¶ 9} The applicable standard for review of felony sentencing is set forth in R.C.

2953.08(G)(2), which provides:

The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

3. The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and

remand the matter to the sentencing court for resentencing. The appellate

court's standard for review is not whether the sentencing court abused its

discretion. The appellate court may take any action authorized by this

division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 21-23; State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-

425, ¶ 16.

{¶ 10} Appellant argues that his sentence should be vacated due to the trial court’s

failure to comply with the principles and purposes of sentencing pursuant to R.C. 2929.11

and R.C. 2929.12. R.C. 2929.11 addresses the purposes of felony sentencing, and

provides as follows:

(A) A court that sentences an offender for a felony shall be guided

by the overriding purposes of felony sentencing. The overriding purposes

of felony sentencing are to protect the public from future crime by the

offender and others, to punish the offender, and to promote the effective

4. rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary

burden on state or local government resources. To achieve those purposes,

the sentencing court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or

both.

(B) A sentence imposed for a felony shall be reasonably calculated

to achieve the three overriding purposes of felony sentencing set forth in

division (A) of this section, commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.

(C) A court that imposes a sentence upon an offender for a felony

shall not base the sentence upon the race, ethnic background, gender, or

religion of the offender.

{¶ 11} R.C. 2929.12 addresses factors to be taken into account when imposing

a felony sentence. R.C. 2929.12(A) provides:

Unless otherwise required by section 2929.13 or 2929.14 of the

Revised Code, a court that imposes a sentence under this chapter upon an

offender for a felony has discretion to determine the most effective way to

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

5. 2929.11 of the Revised Code. In exercising that discretion, the court shall

consider the factors set forth in [divisions (B) through (F) ] of this section *

* * and, in addition, may consider any other factors that are relevant to

achieving those purposes and principles of sentencing.

The factors set out in R.C. 2929.12(B) through (F) relate to matters such as the

seriousness of the offender's conduct, the likelihood of the offender's recidivism, and the

offender's service in the armed forces of the United States, if any.

{¶ 12} We initially observe that the statutory findings listed in R.C.

2953.08(G)(2)(b) are not relevant to our analysis. Specifically, R.C. 2929.13(B), which

applies to cases involving fourth or fifth degree felonies, has no applicability to the

sentence for the second degree felony that is at issue in the instant case. Likewise,

because the offense in this case does not involve a repeat offender specification or

consecutive sentences or judicial release, the court was not required to make findings

pursuant to R.C. 2929.14(B)(2)(e) or (C)(4) or R.C. 2929.20(I).

{¶ 13} Because appellant’s conviction was for a second degree felony, “it is

presumed that a prison term is necessary in order to comply with the purposes and

principles of sentencing under section 2929.11 of the Revised Code.” See R.C.

2929.13(D)(1). And because the trial court imposed a prison sentence, the court was not

required to make findings pursuant to R.C. 2929.13(D)(2) to overcome that presumption.

See State v. Boyer, 2d Dist. Clark No. 2018-CA-120, 2019-Ohio-2590, ¶ 9.

6. {¶ 14} This court has held that a sentence is not clearly and convincingly contrary

to law where: “[1] the trial court has considered the purposes and principles of sentencing

under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, [2]

properly applied postrelease control, and [3] imposed a sentence within the statutory

range.” State v. Parks, 6th Dist. Lucas No. L-18-1138, 2019-Ohio-2366, ¶ 16, citing State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124 and Tammerine, 6th Dist.

Lucas No. L-13-1081, 2014-Ohio-425, at ¶ 15-16.

{¶ 15} A reviewing court may presume from a silent record that the trial court

properly considered the principles of sentencing set forth in R.C. 2929.11 and the

seriousness and recidivism factors listed in R.C. 2929.12. State v. Smith, 6th Dist.

Sandusky No. S-14-037, 2015-Ohio-1867, ¶ 11. In this case, however, the record is not

silent. Instead, the trial court explicitly states in its judgment entry that it considered the

principles and purposes of sentencing articulated in R.C. 2929.11, and balanced the

factors listed in R.C. 2929.12. Including such language in the sentencing entry “‘defeats

a claim that the trial court failed to consider statutory sentencing guidelines.’” See State

v. Hutchinson, 12th Dist. Butler No. CA2018-11-211, 2019-Ohio-2789, ¶ 12, quoting

State v. Peck, 12th Dist. Butler No. CA2015-06-123, 2016-Ohio-1578, ¶ 9. As this court

has observed,

“[w]hile the phrase ‘shall consider’ is used throughout R.C. 2929.12, the

sentencing court is not obligated to give a detailed explanation of how it

algebraically applied each seriousness and recidivism factor to the offender.

7. Indeed, no specific recitation is required. * * * Merely stating that the court

considered the statutory factors is enough.”

State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11

(6th Dist.).

{¶ 16} The record in this case clearly and convincingly supports the sentence

imposed. Appellant had a number of prior convictions and had previously served time in

prison. Although the trial court acknowledged having seen individuals with worse

records, it additionally provided that a defendant’s prior record is only part of what the

trial court considers in determining an appropriate sentence. The trial court also

considered the fact that appellant’s co-defendant had been sentenced to a prison term of

10 years. Finally, the trial court viewed the video of the explosion, heard the victim’s

statement that both her house and her belongings were destroyed as a result of the

explosion, and heard the victim’s claim that she narrowly escaped physical injury herself.

{¶ 17} Appellant argues that the trial court did not impose the minimum sanction

necessary to protect the public without imposing an unnecessary burden on state or local

government resources. But R.C. 2929.11 clearly recognizes that the “overriding

purposes” are not only to protect the public, but also to “punish the offender.” Nothing in

the statute requires the court to elevate resource conservation above other sentencing

factors such as seriousness and recidivism. State v. Ault, 6th Dist. Ottawa No. OT-13-

037, 2015-Ohio-556, ¶ 7, quoting State v. Wilson, 2d Dist. Montgomery No. 24978,

2012-Ohio-4756, ¶ 6. Further, “[w]here the interests of public protection and punishment

are well served by a prison sentence, the claim is difficult to make that the prison

8. sentence imposes an unnecessary burden on government resources.” State v.

Bowshier, 2d Dist. Clark No. 08–CA–58, 2009–Ohio–3429, ¶ 14, citing Ohio Felony

Sentencing Law, 2007 Ed. Griffin and Katz, at 966. Wilson, supra, at ¶ 6.

{¶ 18} Appellant also contends that the court should have given more weight to

the remorse he expressed at sentencing. The court addressed appellant’s remorse, saying,

“I don’t know that I can say that you’ve truly exhibited genuine remorse for your

conduct.” The trial court acted within its authority when it reached this conclusion. This

court has recognized that the trial court is in the best position to judge the credibility of

statements of remorse and is “‘not required to believe that [a] defendant is remorseful

simply because such statements were made at the sentencing hearing.’” State v. Moore,

6th Dist. Lucas No. L-17-1291, 2019-Ohio-1032, ¶ 28, citing State v. Benore, 6th Dist.

Ottawa No. OT-04-021, 2005-Ohio2944, ¶ 35.

{¶ 19} Lastly, appellant complains that the court should have given more weight

to the fact that he was without drug or alcohol dependency issues, on the grounds that this

condition renders him a more suitable candidate for community control. We note,

however, that appellant’s drug and alcohol usage is not a matter of record. At the plea

hearing, appellant denied being under the influence of any type of drug that would

interfere with his ability to understand the proceedings, but nothing else in the transcripts

makes any reference to matters involving drugs, alcohol, addiction, or dependency.

Regardless of appellant’s actual dependency status, the fact is, any lack of a drug or

alcohol dependency did not prevent appellant’s involvement in a serious crime, with

serious property damage and serious risk of bodily injury to occupants of the destroyed

9. homes and to first responders. Therefore, it is the opinion of this court that even if the

issue of the lack of drug dependency had been raised, it seems unlikely that it would have

affected the trial court’s decision to impose a prison sentence in this case.

{¶ 20} A trial court may give whatever weight that it sees fit to apply to each

factor, including to the harms suffered by the victim of an offense. See R.C.

2929.12(B)(2); see also State v. Martin, 6th Dist. Sandusky No. S-17-021, 2018-Ohio-

621, ¶ 18 (“A trial court is not required to give any particular weight or emphasis to a

given set of circumstances.”). The trial court could properly have concluded that the

harm to the victim in this case outweighed other mitigating factors; in doing so, the court

would have had no duty to explain that conclusion. See Brimacombe, 195 Ohio App.3d

524, 2011-Ohio-5032, 960 N.E.2d 1042, at ¶ 11.

{¶ 21} Regarding the imposition of post-release control, we note that the trial

court informed appellant before accepting his plea of the length and mandatory nature of

this portion of the sentence, as well as of the consequences of violating its terms. The

trial court repeated the same information when sentencing appellant, and, further,

incorporated that information into the judgment entry. Appellant has not identified any

deficiency in the trial court’s imposition of post-release control, and this court is similarly

unable to discern any lack of statutory compliance on the part of the trial court.

{¶ 22} The sentencing range for the second degree felony in this case was two,

three, four, five, six, seven, or eight years. See R.C. 2929.14(A)(2)(b). Appellant’s

sentence of eight years was clearly within the legal range.

10. {¶ 23} For all of the foregoing reasons, we find that appellant’s sentence complied

with the applicable law. Accordingly, appellant’s assignment of error is found not well-

taken. We affirm the judgment of the Lucas County Court of Common Pleas. Appellant

is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Myron C. Duhart, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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