[Cite as State v. Hall, 2011-Ohio-2609.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-10-37
v.
CHRISTOPHER L. HALL, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2010-CR-106
Judgment Affirmed
Date of Decision: May 31, 2011
APPEARANCES:
Gerald F. Siesel for Appellant
Amy Otley Beckett for Appellee Case NO. 2-10-37
WILLAMOWSKI, J.
{¶1} Defendant-appellant Christopher L. Hall, Jr. (“Hall”) brings this
appeal from the judgment of the Court of Common Pleas of Auglaize County
sentencing him to consecutive sentences. For the reasons set forth below, the
judgment is affirmed.
{¶2} During June 2010, a series of burglaries occurred in rural areas of
Auglaize County. On June 28, 2010, Sgt. Detective Jerry Sawmiller
(“Sawmiller”) of the Auglaize County Sherriff’s Office was informed by the Allen
County Sheriff’s office that Hall and Joshua Weimert (“Weimert”) had admitted to
committing burglaries in Auglaize County. Sawmiller was advised to speak with
Ashley Hall (“Ashley”), the girlfriend of Weimert. When questioned, Ashley told
Sawmiller that Hall and Weimert were burglarizing homes in Auglaize County
and selling the stolen property. On July 2, 2010, Sawmiller interviewed Weimert
and Hall. Weimert eventually confessed that both he and Hall had committed the
series of burglaries in Auglaize County.
{¶3} On August 12, 2010, the Auglaize County Grand Jury indicted Hall on
ten counts of burglary, theft, and theft of firearms, ranging from a second degree
felony, eight third degree felonies, and one fifth degree felony. Hall entered a plea
of not guilty to each of the counts on September 1, 2010. On October 15, 2010,
Hall entered into a written plea agreement with the state. Pursuant to the plea
-2- Case NO. 2-10-37
agreement, Hall agreed to enter a guilty plea to three counts of burglary and one
count of theft of a firearm, all felonies of the third degree and to pay restitution in
the amount of $5,900.00. In exchange, the State agreed to dismiss all other
charges, and to recommend four five year sentences to be served consecutively for
a total of twenty years in prison. The trial court accepted the plea agreement and
proceeded to conduct an immediate sentencing hearing. The State, as per the
agreement, recommended a sentence of twenty years in prison. Hall then
presented evidence in mitigation for a lesser sentence. After addressing Hall, the
trial court sentenced Hall to three prison terms of four years and one of five years
to be served consecutively for a total prison term of seventeen years. Hall appeals
from this judgment and raises the following assignments of error.
First Assignment of Error
The trial court’s sentence of [Hall] to consecutive sentences totaling seventeen years was contrary to law and further constituted an abuse of discretion in failing to properly consider and apply the felony sentencing guidelines set forth in R.C. 2929.11 and 2929.12.
Second Assignment of Error
[Hall’s] consecutive sentences violated [Hall’s] right to due process under the Sixth and Fourteenth Amendments of the United States Constitution and Sections Five and Sixteen, Article I and Section Four, Article IV of the Ohio Constitution.
-3- Case NO. 2-10-37
{¶4} In the first assignment of error, Hall claims that the imposition of
consecutive sentences was contrary to law because the trial court did not correctly
apply the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12. The
standard of review for sentences was addressed in State v. Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912. In Kalish, four of seven panel members1 noted that R.C.
2953.08(G) requires that appellate courts require appellants to meet a clearly and
convincingly contrary to law standard of review when reviewing a sentence. Id.
For example, if the appellant clearly and convincingly proves that the sentencing
court ignored R.C. 2929.12, the judgment would be contrary to law. However, if
the appeal is based upon the proper application of R.C. 2929.12(B) through (D),
four of seven panel members2 in Kalish determined the appropriate standard of
review is abuse of discretion. Id. See also State v. Hubbard, 2d Dist. No. 23363,
2010-Ohio-3910. Trial courts have discretion to impose a prison sentence within
the statutory range for the offense from which the conviction stems. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶5} Hall argues that the trial court erred by not affirmatively indicating
that it considered the factors set forth in R.C. 2929.11 and 2929.12. The question
of whether the trial court considered the factors is reviewed under the clearly and
1 Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment all reached this conclusion. 2 Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment all agreed that for a review of the application of R.C. 2929.12(B) factors, the judgment is reviewed for an abuse of discretion.
-4- Case NO. 2-10-37
convincingly contrary to law standard. See State v. Ditto, 3d Dist. No. 12-09-08,
2010-Ohio-1503. “Although the trial court is required to consider the factors set
forth in [R.C. 2929.11 and 2929.12], the trial court is not required to either discuss
the factors on the record or even to state that the factors were considered on the
record as long as the record is sufficient for a court to determine that the
consideration occurred.” Id. at ¶4. This court notes that in this case, no
presentence investigation occurred. There was also some confusion as to the
background of this defendant versus that of his codefendant. See Tr. at 22-23.
However, at the sentencing hearing, Hall was questioned by both his attorney and
the trial court. That questioning raised several of the factors set forth in R.C.
2929.11 and R.C. 2929.12. The journal entry then stated that it had considered the
“principles and purposes of sentencing under [R.C. 2929.11] and has balanced the
seriousness and recidivism factors under [R.C. 2929.12].” Oct. 15, 2010, entry at
3. Thus, Hall has failed to show by clear and convincing evidence that the
judgment was contrary to law.
{¶6} Hall also claims that the trial court erred in applying the factors set
forth in R.C. 2929.12(B-E). This claim, unlike the others is reviewed under an
abuse of discretion standard because R.C. 2929.12(A) specifically places the
application within the sound discretion of the trial court. Ditto, supra at ¶4. A
review of the sentencing record reveals that the trial court questioned Hall
-5- Case NO. 2-10-37
concerning the economic harm caused to the victims, Hall’s prior and continuing
drug use, the potential for physical harm to the victims of the thefts, and Hall’s
prior juvenile record among other factors. The record therefore, indicates that the
trial court did not abuse its discretion in applying the factors set forth in R.C.
2929.12. The first assignment of error is overruled.
{¶7} In the second assignment of error, Hall alleges that the trial court
denied his due process rights by sentencing him to consecutive sentences. Hall
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[Cite as State v. Hall, 2011-Ohio-2609.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-10-37
v.
CHRISTOPHER L. HALL, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2010-CR-106
Judgment Affirmed
Date of Decision: May 31, 2011
APPEARANCES:
Gerald F. Siesel for Appellant
Amy Otley Beckett for Appellee Case NO. 2-10-37
WILLAMOWSKI, J.
{¶1} Defendant-appellant Christopher L. Hall, Jr. (“Hall”) brings this
appeal from the judgment of the Court of Common Pleas of Auglaize County
sentencing him to consecutive sentences. For the reasons set forth below, the
judgment is affirmed.
{¶2} During June 2010, a series of burglaries occurred in rural areas of
Auglaize County. On June 28, 2010, Sgt. Detective Jerry Sawmiller
(“Sawmiller”) of the Auglaize County Sherriff’s Office was informed by the Allen
County Sheriff’s office that Hall and Joshua Weimert (“Weimert”) had admitted to
committing burglaries in Auglaize County. Sawmiller was advised to speak with
Ashley Hall (“Ashley”), the girlfriend of Weimert. When questioned, Ashley told
Sawmiller that Hall and Weimert were burglarizing homes in Auglaize County
and selling the stolen property. On July 2, 2010, Sawmiller interviewed Weimert
and Hall. Weimert eventually confessed that both he and Hall had committed the
series of burglaries in Auglaize County.
{¶3} On August 12, 2010, the Auglaize County Grand Jury indicted Hall on
ten counts of burglary, theft, and theft of firearms, ranging from a second degree
felony, eight third degree felonies, and one fifth degree felony. Hall entered a plea
of not guilty to each of the counts on September 1, 2010. On October 15, 2010,
Hall entered into a written plea agreement with the state. Pursuant to the plea
-2- Case NO. 2-10-37
agreement, Hall agreed to enter a guilty plea to three counts of burglary and one
count of theft of a firearm, all felonies of the third degree and to pay restitution in
the amount of $5,900.00. In exchange, the State agreed to dismiss all other
charges, and to recommend four five year sentences to be served consecutively for
a total of twenty years in prison. The trial court accepted the plea agreement and
proceeded to conduct an immediate sentencing hearing. The State, as per the
agreement, recommended a sentence of twenty years in prison. Hall then
presented evidence in mitigation for a lesser sentence. After addressing Hall, the
trial court sentenced Hall to three prison terms of four years and one of five years
to be served consecutively for a total prison term of seventeen years. Hall appeals
from this judgment and raises the following assignments of error.
First Assignment of Error
The trial court’s sentence of [Hall] to consecutive sentences totaling seventeen years was contrary to law and further constituted an abuse of discretion in failing to properly consider and apply the felony sentencing guidelines set forth in R.C. 2929.11 and 2929.12.
Second Assignment of Error
[Hall’s] consecutive sentences violated [Hall’s] right to due process under the Sixth and Fourteenth Amendments of the United States Constitution and Sections Five and Sixteen, Article I and Section Four, Article IV of the Ohio Constitution.
-3- Case NO. 2-10-37
{¶4} In the first assignment of error, Hall claims that the imposition of
consecutive sentences was contrary to law because the trial court did not correctly
apply the sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12. The
standard of review for sentences was addressed in State v. Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912. In Kalish, four of seven panel members1 noted that R.C.
2953.08(G) requires that appellate courts require appellants to meet a clearly and
convincingly contrary to law standard of review when reviewing a sentence. Id.
For example, if the appellant clearly and convincingly proves that the sentencing
court ignored R.C. 2929.12, the judgment would be contrary to law. However, if
the appeal is based upon the proper application of R.C. 2929.12(B) through (D),
four of seven panel members2 in Kalish determined the appropriate standard of
review is abuse of discretion. Id. See also State v. Hubbard, 2d Dist. No. 23363,
2010-Ohio-3910. Trial courts have discretion to impose a prison sentence within
the statutory range for the offense from which the conviction stems. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶5} Hall argues that the trial court erred by not affirmatively indicating
that it considered the factors set forth in R.C. 2929.11 and 2929.12. The question
of whether the trial court considered the factors is reviewed under the clearly and
1 Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment all reached this conclusion. 2 Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment all agreed that for a review of the application of R.C. 2929.12(B) factors, the judgment is reviewed for an abuse of discretion.
-4- Case NO. 2-10-37
convincingly contrary to law standard. See State v. Ditto, 3d Dist. No. 12-09-08,
2010-Ohio-1503. “Although the trial court is required to consider the factors set
forth in [R.C. 2929.11 and 2929.12], the trial court is not required to either discuss
the factors on the record or even to state that the factors were considered on the
record as long as the record is sufficient for a court to determine that the
consideration occurred.” Id. at ¶4. This court notes that in this case, no
presentence investigation occurred. There was also some confusion as to the
background of this defendant versus that of his codefendant. See Tr. at 22-23.
However, at the sentencing hearing, Hall was questioned by both his attorney and
the trial court. That questioning raised several of the factors set forth in R.C.
2929.11 and R.C. 2929.12. The journal entry then stated that it had considered the
“principles and purposes of sentencing under [R.C. 2929.11] and has balanced the
seriousness and recidivism factors under [R.C. 2929.12].” Oct. 15, 2010, entry at
3. Thus, Hall has failed to show by clear and convincing evidence that the
judgment was contrary to law.
{¶6} Hall also claims that the trial court erred in applying the factors set
forth in R.C. 2929.12(B-E). This claim, unlike the others is reviewed under an
abuse of discretion standard because R.C. 2929.12(A) specifically places the
application within the sound discretion of the trial court. Ditto, supra at ¶4. A
review of the sentencing record reveals that the trial court questioned Hall
-5- Case NO. 2-10-37
concerning the economic harm caused to the victims, Hall’s prior and continuing
drug use, the potential for physical harm to the victims of the thefts, and Hall’s
prior juvenile record among other factors. The record therefore, indicates that the
trial court did not abuse its discretion in applying the factors set forth in R.C.
2929.12. The first assignment of error is overruled.
{¶7} In the second assignment of error, Hall alleges that the trial court
denied his due process rights by sentencing him to consecutive sentences. Hall
argues that the decision by the Supreme Court in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-586, 845 N.E.2d 470, wrongly severed the requirement that the trial
court make findings before imposing consecutive sentences. However, the Ohio
Supreme Court in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768, held that the holding in Foster, was still valid. The Supreme Court admitted
that the logic used to decide Foster was called into question, but held that since it
was not reversed by the U.S. Supreme Court, it was still the law and only the
legislature could reenact the severed provisions of the statute. Since Hall was
sentenced pursuant to the law in effect at the time of his sentencing, the judgment
does not violate Hall’s right to due process under the Constitution of the United
States or under the Ohio Constitution and the second assignment of error is
overruled.
-6- Case NO. 2-10-37
{¶8} Having found no error prejudicial to the defendant, the judgment of
the Court of Common Pleas of Auglaize County is affirmed.
SHAW and PRESTON, J.J., concur in judgment only.
/jlr
-7-