State v. Phillips

2011 Ohio 6431

• Court: Ohio Court of Appeals
• Decided: December 15, 2011
• Docket: 96576
• Status: Published

Opinion

[Cite as State v. Phillips, 2011-Ohio-6431.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96576

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DAVID PHILLIPS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-538733 and CR-540544

BEFORE: Celebrezze, P.J., Jones, J., and Cooney, J.

RELEASED AND JOURNALIZED: December 15, 2011 ATTORNEY FOR APPELLANT

Thomas A. Rein 940 Leader Building 526 Superior Avenue Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Jesse W. Canonico Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., P.J.:

{¶ 1} Appellant, David Phillips, appeals his sentence, arguing that the trial court

erred by imposing a term of incarceration that was contrary to law. After careful review

of the record and relevant case law, we affirm appellant’s sentence.

{¶ 2} On June 30, 2010, appellant was indicted in Case No. CR-538733 and

charged with two counts of drug trafficking, with a forfeiture specification, in violation of

R.C. 2925.03(A)(2) (Counts 1 and 3); four counts of drug possession, in violation of R.C.

2925.11 (Counts 2, 4, 5, and 6); and possession of criminal tools, in violation of R.C.

2923.24 (Count 7).

{¶ 3} On August 9, 2010, appellant was indicted in Case No. CR-540544 and

charged with four counts of illegal use of a minor in nudity oriented material or performance, with a forfeiture specification, in violation of R.C. 2907.322(A)(1) (Counts

1, 2, 3, and 4); two counts of child endangering, in violation of R.C. 2919.22(B)(5)

(Counts 5 and 6); tampering with evidence, in violation of R.C. 2921.12(A)(1) (Count 7);

and possessing criminal tools, in violation of R.C. 2923.24 (Count 8).

{¶ 4} On February 3, 2011, appellant pled guilty on all charges as indicted in

CR-538733 and CR-540544.

{¶ 5} Appellant’s sentencing hearing was held on March 8, 2011. In

CR-538733, the trial court found that Counts 1 and 2 were allied offenses of similar

import. The trial court also found that Counts 3 and 4 were allied offenses. For the

purposes of sentencing, the trial court found that Counts 5, 6, and 7 were separate

offenses. At the sentencing hearing, the state chose to proceed on Counts 1 and 3.

{¶ 6} In CR-538733, on Count 1, the trial court sentenced appellant to seven

years. On Count 3, the court sentenced appellant to five years, to run consecutively to

Count 1. On Count 5, a misdemeanor, the trial court sentenced appellant to time served.

On Counts 6 and 7, the trial court sentenced appellant to one year each, to run

concurrently to Counts 1 and 3.

{¶ 7} In CR-540544, the trial court found that Counts 2, 3, and 4 were allied

offenses of similar import and therefore merged the counts for the purpose of sentencing.

{¶ 8} The trial court sentenced appellant to six years on Count 1; merged Counts

2, 3, and 4, and sentenced appellant to six years on the amended Count 2, to run

consecutively to Count 1. On Counts 5 and 6, the trial court sentenced appellant to four years, to run concurrently to Counts 1 and 2. On Count 7, the trial court sentenced

appellant to one year, to run concurrently to Counts 1 and 2. On Count 8, the trial court

sentenced appellant to six months, to run concurrently to Counts 1 and 2.

{¶ 9} The court ordered that the sentence issued in CR-538733 run concurrently

with the sentence issue in CR-540544, for an aggregate sentence of 12 years. The court

also imposed a five-year mandatory period of postrelease control.

{¶ 10} Appellant appeals from this order of sentencing, raising one assignment of

error for review.

Law and Analysis

{¶ 11} In his sole assigned error, appellant argues that his 12-year sentence is

contrary to law. We disagree.

{¶ 12} We review felony sentences using the framework announced in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion,

the Kalish court declared that in applying State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a

two-step approach.” Kalish at ¶4.

{¶ 13} Appellate courts must first “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.” Id. at ¶26. See, also, R.C.

2953.08(G). If this first prong is satisfied, then we review the trial court’s decision under

an abuse of discretion standard. Id. at ¶4, 19. {¶ 14} In the first step of our analysis, we review whether appellant’s sentence is

contrary to law, as required by R.C. 2953.08(G). As the Kalish court noted, post-Foster

“trial courts have full discretion to impose a prison sentence within the statutory range

and are no longer required to make findings and give reasons for imposing maximum,

consecutive, or more than the minimum sentence.” Id. at ¶11, quoting Foster at

paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, paragraph three of the syllabus.

{¶ 15} The Kalish court held that, although Foster eliminated mandatory judicial

fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. Therefore, the trial

court must still consider those statutes when imposing a sentence. Id., citing Mathis at

¶38.

{¶ 16} R.C. 2929.11(A) provides: “[A] court that sentences an offender for a

felony shall be guided by the overriding purposes of felony sentencing [:] * * * to protect

the public from future crime by the offender and others and to punish the offender. 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.”

{¶ 17} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses. {¶ 18} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Instead, they

“serve as an overarching guide for trial judges to consider in fashioning an appropriate

sentence.” Kalish at ¶17. Thus, “[i]n considering these statutes in light of Foster, the

trial court has full discretion to determine whether the sentence satisfies the overriding

purposes of Ohio’s sentencing structure.” Id.

{¶ 19} In the instant case, appellant concedes that his sentence falls within the

statutory range for each charge. Further, the record reflects that the trial court properly

considered the applicable sentencing statutes when imposing appellant’s sentence.1 The

trial court stated in its judgment entry that appellant’s prison term is consistent with the

principles and purposes of sentencing set forth in R.C. 2929.11 and that it had considered

all required factors of the law. Additionally, the transcript of the sentencing hearing

clearly shows that the trial court weighed the factors outlined in R.C. 2929.12. The

record reflects that the trial court considered the seriousness of appellant’s convictions,

his extensive criminal history, his pattern of drug and alcohol abuse, his remorse for the

offenses, the likelihood of appellant committing future crimes, and the magnitude of the

1 Appellant does not argue that the court failed to consider R.C. 2929.11 and 2929.12 when imposing his sentence; nor does he argue how his 12-year sentence is disproportionate to the volume of criminal activity he committed. Instead, he merely argues that his sentence was unreasonable and cites the Second District opinion, State v. Parker, 193 Ohio App.3d 506, 2011-Ohio-1418, 952 N.E.2d 1159, a case that is factually distinguishable from the instant matter. Appellant’s brief fails entirely to demonstrate how his sentence violated Ohio’s sentencing statutes. victim’s psychological harm. Therefore, we have no basis for concluding that

appellant’s sentence is contrary to law.

{¶ 20} We next consider whether the trial court abused its discretion. Kalish at

¶4, 19. An “abuse of discretion” implies that the court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,

450 N.E.2d 1140.

{¶ 21} We find nothing in the record to suggest that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. A review of the record indicates that the trial

court expressly stated that it had considered all factors of the law and found that prison

was consistent with the purposes and principles of R.C. 2929.11.

{¶ 22} Accordingly, we overrule appellant’s sole assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE LARRY A. JONES, J., and COLLEEN CONWAY COONEY, J., CONCUR