[Cite as State v. Gooding, 2013-Ohio-5148.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 13CA006 MATTHEW L. GOODING : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County Court of Common Pleas, Case No.12CR151
JUDGMENT: Affirmed in part; reversed in part and Remanded
DATE OF JUDGMENT ENTRY: November 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEPHEN KNOWLING THOMAS WHITE Prosecuting Attorney ALYSSE GILES 164 E. Jackson Street 209 N. Washington Street Millersburg, OH 44654 Millersburg, OH 44654 [Cite as State v. Gooding, 2013-Ohio-5148.]
Gwin, P.J.
{¶1} On January 31, 2013, appellant, Matthew L. Gooding [“Gooding”] entered
a negotiated guilty plea to Illegal Assembly or Possession of Chemicals for the
Manufacture of Drugs (Methamphetamine), a felony of the third degree, in violation of
Ohio Revised Code Section 2925.041(A). In exchange for this plea, the state dismissed
the firearm specification contained in Count I of the Indictment. (Sent. T., March 13,
2013 at 3). The Trial Court imposed a maximum sentence of thirty-six months.
{¶2} It is from this conviction and sentence that Gooding has appealed, raising
two assignments of error,
{¶3} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO
THE MAXIMUM TERM OF THIRTY-SIX MONTHS FOR A VIOLATION OF OHIO
REVISED CODE SECTION 2925.041(A).
{¶4} “II. THE TRIAL COURT ERRED BY GIVING DEFENDANT ONLY 33
DAYS OF CREDIT TOWARD HIS SENTENCE, WHEN HE SHOULD HAVE RECEIVED
71.”
I.
{¶5} Gooding claims the trial court erred in sentencing him to the maximum
prison term.
{¶6} R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2)
states as follows:
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 Holmes County, Case No. 13CA006 3
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 (E)(4) of section
2929.14, or division (H) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶7} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph
three of the syllabus. The Eighth District recently stated in State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013–Ohio–1891,
It is important to understand that the “clear and convincing” standard
applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.
2953.08(G)(2) makes it clear that “(t)he appellate court's standard for
review is not whether the sentencing court abused its discretion.” As a
practical consideration, this means that appellate courts are prohibited
from substituting their judgment for that of the trial judge.
It is also important to understand that the clear and convincing standard
used by R.C. 2953.08(G)(2) is written in the negative. It does not say that
the trial judge must have clear and convincing evidence to support its
findings. Instead, it is the court of appeals that must clearly and Holmes County, Case No. 13CA006 4
convincingly find that the record does not support the court's findings. In
other words, the restriction is on the appellate court, not the trial judge.
This is an extremely deferential standard of review.
Venes, supra, at ¶ 20–21. Accord, State v. Lee, 10th Dist. Franklin No. CA2012-09-182,
2013-Ohio-3404, ¶9; State v. Money, 12th Dist. Clermont No. CA2013-02-016, 2013-
Ohio-4535, ¶8. We note that the Venes decision’s standard of review is limited to the
imposition of consecutive sentences. Venes, supra, at ¶10.
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, 2080-
Ohio-6709, 2008 WL 5265826.
{¶8} 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.
{¶9} “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. Holmes County, Case No. 13CA006 5
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.
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.
{¶10} 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.
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[Cite as State v. Gooding, 2013-Ohio-5148.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 13CA006 MATTHEW L. GOODING : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County Court of Common Pleas, Case No.12CR151
JUDGMENT: Affirmed in part; reversed in part and Remanded
DATE OF JUDGMENT ENTRY: November 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEPHEN KNOWLING THOMAS WHITE Prosecuting Attorney ALYSSE GILES 164 E. Jackson Street 209 N. Washington Street Millersburg, OH 44654 Millersburg, OH 44654 [Cite as State v. Gooding, 2013-Ohio-5148.]
Gwin, P.J.
{¶1} On January 31, 2013, appellant, Matthew L. Gooding [“Gooding”] entered
a negotiated guilty plea to Illegal Assembly or Possession of Chemicals for the
Manufacture of Drugs (Methamphetamine), a felony of the third degree, in violation of
Ohio Revised Code Section 2925.041(A). In exchange for this plea, the state dismissed
the firearm specification contained in Count I of the Indictment. (Sent. T., March 13,
2013 at 3). The Trial Court imposed a maximum sentence of thirty-six months.
{¶2} It is from this conviction and sentence that Gooding has appealed, raising
two assignments of error,
{¶3} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO
THE MAXIMUM TERM OF THIRTY-SIX MONTHS FOR A VIOLATION OF OHIO
REVISED CODE SECTION 2925.041(A).
{¶4} “II. THE TRIAL COURT ERRED BY GIVING DEFENDANT ONLY 33
DAYS OF CREDIT TOWARD HIS SENTENCE, WHEN HE SHOULD HAVE RECEIVED
71.”
I.
{¶5} Gooding claims the trial court erred in sentencing him to the maximum
prison term.
{¶6} R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2)
states as follows:
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 Holmes County, Case No. 13CA006 3
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 (E)(4) of section
2929.14, or division (H) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶7} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph
three of the syllabus. The Eighth District recently stated in State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013–Ohio–1891,
It is important to understand that the “clear and convincing” standard
applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.
2953.08(G)(2) makes it clear that “(t)he appellate court's standard for
review is not whether the sentencing court abused its discretion.” As a
practical consideration, this means that appellate courts are prohibited
from substituting their judgment for that of the trial judge.
It is also important to understand that the clear and convincing standard
used by R.C. 2953.08(G)(2) is written in the negative. It does not say that
the trial judge must have clear and convincing evidence to support its
findings. Instead, it is the court of appeals that must clearly and Holmes County, Case No. 13CA006 4
convincingly find that the record does not support the court's findings. In
other words, the restriction is on the appellate court, not the trial judge.
This is an extremely deferential standard of review.
Venes, supra, at ¶ 20–21. Accord, State v. Lee, 10th Dist. Franklin No. CA2012-09-182,
2013-Ohio-3404, ¶9; State v. Money, 12th Dist. Clermont No. CA2013-02-016, 2013-
Ohio-4535, ¶8. We note that the Venes decision’s standard of review is limited to the
imposition of consecutive sentences. Venes, supra, at ¶10.
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, 2080-
Ohio-6709, 2008 WL 5265826.
{¶8} 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.
{¶9} “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. Holmes County, Case No. 13CA006 5
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.
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.
{¶10} 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.
{¶11} After reviewing the record, we find the trial court's sentence is not clearly
and convincingly contrary to law. The trial court very clearly stated that it had
considered the purposes and principles of sentencing according to R.C. 2929.11 and Holmes County, Case No. 13CA006 6
balanced the seriousness and recidivism factors within R.C. 2929.12. The trial court
noted that Gooding’s co-defendant was also given a prison sentence. (Sent. T., March
13, 2013 at 3). The court found Gooding’s actions,
I told your codefendant the same thing this is one of the most
despicable acts I have ever seen. You are in a tent and I don't know how
many yards you are off the trail, where kids ride their bicycles up and
down the trail every single day. And I told your fiancé or girlfriend at the
sentencing that lots of times on the weekends I try run on the trail almost
every day, but on the weekends I will run on the trail, for something to do I
count people that go by. When I do a five-mile run sometimes I see 50 to
60 people and on a summer day more and a lot of them are kids. You are
cooking methamphetamine in a tent off of the trail where kids go by and it
is inexcusable, it's truly one of the worst offenses I've had [sic.] this court.
The only one I can think of worse, there was an individual making meth in
a house where the child was through the fumes she tested positive for
meth even though having not consumed them. I don't know how the
chemicals work once they get in the atmosphere but I know how volatile
the meth is, my understanding is at the time of the offense you are running
an active cook, which means you are actively making meth amphetamine
when they approached you. There was a weapon although you said, and I
don't remember seeing it in the presentence, that it was unloaded and that
maybe it was unloaded but there still a weapon in the tent. I understand
maybe it was there for your protection, maybe your protection was Holmes County, Case No. 13CA006 7
because you are making meth and you didn't want people to steal the
meth from you, who knows? You had a job for four years you worked for
the Cline and you're not working, you're not supporting your kids, and you
are living in a tent and lost custody of your three children. It's, it's
unfathomable.
(Sent. T., March 13, 2013 at 4). The trial court further noted,
The court has considered all matters of record including testimony,
giving [sic.] the statements, presentence investigation, and prior to
passing sentence the court is to consider all relevant constitutional,
statutory and procedural issues. A sentence proposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony
sentencing with and not demeaning to the serious of the offenders
conduct and its impact on the victim and consistent with the sentence
imposed for a similar crimes committed by similar offenders shall not
actually burden local or state government resources and shall not
[inaudible] be based on inadmissible purposes. The very important phrase
in that sentence is similar crimes similar offenders, what this court has,
this court has never given probation anyone involved with meth, ever and
it never will. It is a horrendous drug. In imposing a sentence the court is
not to consider the offenders race, ethnic background, gender or religion.
Under the most serious offense this court finds none or less serious no
physical harm to persons or property was expected but I honestly don't
know what meth can do but if it explodes it sure as heck can affect Holmes County, Case No. 13CA006 8
somebody. [Inaudible] place about that I am going to put down less
serious. Under recidivism and of his prior adjudication or delinquency to
your history of criminal convictions the defendant has failed to respond
favorably in the past probation or parole. Under recidivism not likely the
court finds none. Weighing those factors the courts finds recidivism is
more likely. Under the felony of the third degree the court finds prison is
consistent with the overriding purposes of and the principles of
sentencing. Regarding financial sanctions the court finds the Defendant is
unable to pay financial sanctions but the court finds the Defendant has the
ability and will in the future be able to pay financial sanctions. It is
therefore the sentence of this court one that you pay the mandatory fine of
$5000.00 dollars payable to the Holmes County Sheriff's Department, pay
the court costs, pay the fees and expense of court appointed counsel.
Execution is awarded for fines, court costs, and restitution. The
Defendants motor vehicle license is suspended for a period of five years.
The Defendant shall serve a prison sentence of thirty-six months in the
Lorain Correctional Institution at Grafton Ohio or so such other place as
Department of Rehabilitation and Corrections and shall direct upon the
one count of Illegal Assembly or Possession of Chemicals for the
Manufacturing Drug Methamphetamine, and that is the maximum I can
give you, and you deserve every day.
(Sent. T., March 13, 2013 at 5). Holmes County, Case No. 13CA006 9
{¶12} A sentencing court has broad discretion to determine the relative weight to
assign the factors in R.C. 2929.12. State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d
793 (2000). Subsequent to the Ohio Supreme Court's Foster decision, “[t]he decision to
impose the maximum sentence is simply part of the trial court's overall discretion in
issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.”
State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio–1281, ¶14. Accord, State
v. Trammel, 5th Dist. Stark No. 2012CA00237, 2013-Ohio-4354, ¶35.
{¶13} As the sentencing transcript reflects, Gooding’s counsel outlined to the
court all of the factors in Gooding’s favor that could lead to mitigation. The court properly
weighed these mitigating factors against the factors the court found to aggravate
Gooding’s conduct.
{¶14} Accordingly, we hold the thirty-six 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.
{¶15} Gooding’s first assignment of error is overruled.
II.
{¶16} In his second assignment of error, Gooding maintains he was entitled to
receive 71 days of jail-time credit for time he served in the county jail for the offense in
lieu of confinement, but the trial court only ordered 33 days of credit. The state has
responded,
Based upon a review of the Holmes County Jail records, the
defendant/appellant is entitled to eighty-one (81) days credit against his Holmes County, Case No. 13CA006 10
prison sentence for time spent in the Holmes County Jail relating to the
underlying charges
Brief of Appellee at 4.
{¶17} Accordingly, Gooding’s second assignment of error is sustained.
{¶18} The judgment of the Holmes County Court of Common Pleas is affirmed,
in part and reversed, in part and this matter is remanded for proceedings in accordance
with our opinion and the law.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. PATRICIA A. DELANEY
WSG:clw 1028 [Cite as State v. Gooding, 2013-Ohio-5148.]
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MATTHEW L. GOODING : : : Defendant-Appellant : CASE NO. 13CA006
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Holmes County Court of Common Pleas is affirmed, in part and reversed, in part
and this matter is remanded for proceedings in accordance with our opinion and the
law. Costs to be shared equally by the parties.