[Cite as State v. Siefker,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY

STATE OF OHIO, CASE NO. 12-10-14

PLAINTIFF-APPELLEE,

v.

JAMISON E. SIEFKER, JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Putnam County Common Pleas Court Trial Court No. 2010 CR 12

Judgment Affirmed

Date of Decision: April 18, 2011

APPEARANCES:

Nicole M. Winget for Appellant

Todd C. Schroeder for Appellee Case No. 12-10-14

PRESTON, J.

{¶1} Defendant-appellant, Jamison E. Siefker (hereinafter “Siefker”),

appeals the Putnam County Court of Common Pleas’ judgment entry of sentence.

We affirm.

{¶2} On March 26, 2010, the Putnam County Grand Jury indicted Siefker

on four counts, including: count one of receiving stolen property in violation of

R.C. 2913.51(A), a fifth degree felony; count two of breaking and entering in

violation of R.C. 2911.13(A), a fifth degree felony; count three of burglary in

violation of R.C. 2911.12(A)(2), a second degree felony; and count four of

breaking and entering in violation of R.C. 2911.13(A), a fifth degree felony. (Doc.

No. 1).

{¶3} On April 8, 2010, Siefker was arraigned and entered pleas of not

guilty to all four counts of the indictment. (Doc. No. 11).

{¶4} On June 7, 2010, Siefker filed a motion to suppress statements he

made to law enforcement. (Doc. No. 17). On June 22, 2010, the trial court held a

hearing on the motion, but Siefker withdrew the motion at the beginning of the

hearing. (June 22, 2010 Tr. at 2).

{¶5} On July 15, 2010, Siefker withdrew his previously tendered pleas of

not guilty and entered pleas of guilty to counts one and two of the indictment

pursuant to a negotiated plea agreement. (Doc. No. 24); (July 15, 2010 Tr. at 2).

-2- Case No. 12-10-14

In exchange, the State dismissed counts three and four of the indictment and

agreed to remain silent at sentencing. (Id.); (Id.). The trial court accepted

Siefker’s pleas of guilty, entered convictions based upon those pleas, and ordered

that a pre-sentence investigation (PSI) report be completed. (July 15, 2010 Tr. at

9).

{¶6} On September 16, 2010, the trial court sentenced Siefker to twelve

(12) months on count one and twelve (12) months on count two. (Sept. 16, 2010

Tr. at 7); (Sept. 23, 2010 JE, Doc. No. 28). The trial court ordered that the terms

be served consecutively to each other for a total of twenty-four (24) months

imprisonment. (Id.); (Id). The trial court also ordered that Siefker pay $500.00 in

restitution. (Sept. 16, 2010 Tr. at 8); (Id.).

{¶7} On October 20, 2010, Siefker filed a notice of appeal. (Doc. No. 32).

Siefker now appeals raising three assignments of error for our review. We elect to

combine Siefker’s first and second assignments of error for discussion.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT IMPOSED THE MAXIMUM SENTENCES FOR HIS OFFENSES IN VIOLATION OF THE PROVISIONS IN O.R.C. 2929.14(C).

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED AS A MATTER OF LAW, AND IN PREJUDICE OF THE APPELLANT, WHEN IT FAILED

-3- Case No. 12-10-14

TO GIVE REASONS IN SUPPORT OF ITS FINDINGS WHEN IT IMPOSED CONSECUTIVE SENTENCES.

{¶8} In his first assignment of error, Siefker argues that the trial court erred

in sentencing him to the maximum term on each offense because they were not the

worst forms of the offenses. Specifically, Siefker argues that his offense of

receiving stolen property was only a fifth degree felony offense, and the trial court

made no finding that it was the worst form of the offense. With regard to his

offense of breaking and entering, Siefker argues that he was only the getaway

driver. Finally, Siefker argues that his record does not indicate that he is likely to

re-offend; rather, his record indicates that he has a substance abuse problem.

{¶9} In his second assignment of error, Siefker argues that the trial court

failed to make a finding pursuant to R.C. 2929.14(E)(4) that the harm caused by

the multiple offenses was so great that a single term did not adequately reflect the

seriousness of his conduct.

{¶10} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24,

(the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

-4- Case No. 12-10-14

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426,

; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39,

, citing R.C. 2953.08(G).1 Clear and

convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford

(1954),

,

, paragraph three of the syllabus; State v.

Boshko (2000),

,

. An appellate court

should not, however, substitute its judgment for that of the trial court because the

trial court is ‘“clearly in the better position to judge the defendant’s likelihood of

recidivism and to ascertain the effect of the crimes on the victims.”’ State v.

Watkins, 3d Dist. No. 2-04-08,

, quoting State v. Jones

(2001),

,

.

{¶11} In State v. Foster, the Supreme Court of Ohio severed portions of

Ohio’s felony sentencing law after finding them unconstitutional.

,

,

. The Court in Foster held, in pertinent part,

that “[t]rial 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

1 We note that the Supreme Court of Ohio’s recent plurality opinion in State v. Kalish,

,

,

, establishes a two-part test utilizing an abuse of discretion standard for appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test.

-5- Case No. 12-10-14

for imposing maximum, consecutive, or more than the minimum sentences.”

at

paragraph seven of the syllabus. Further, the Court stated that “[o]ur remedy does

not rewrite the statute, but leaves courts with full discretion to impose a prison

term within the basic ranges of R .C. 2929.14(A) * * *.” Id. at ¶102. Additionally,

the Court held that “[c]ourts shall consider those portions of the sentencing code

that are unaffected by today’s decision and impose any sentence within the

appropriate felony range.” Id. at ¶105.

{¶12} Trial courts are still required to comply with R.C. 2929.11, 2929.12,

2929.13, and the portions of R.C. 2929.14 not severed in Foster. Id. at ¶36.

However, R.C. 2929.11 and 2929.12 do not mandate judicial fact-finding; rather,

in exercising its discretion, a trial court is merely required to “consider” the

purposes of sentencing in R.C. 2929.11 and the statutory guidelines and factors set

forth in R.C. 2929.12. Id. at ¶¶36-42. See, also, State v. Mathis,

,

,

; State v. Roehl, 3d Dist. No. 4-07-10, 2008-

Ohio-85, ¶10; State v. Estep, 3d Dist. No. 9-07-16,

.

{¶13} Siefker’s arguments lack merit. Siefker was sentenced to twelve (12)

months imprisonment on each of two fifth degree felonies. (Sept. 23, 2010 JE,

Doc. No. 28). R.C. 2929.14(A)(5) provides that “[f]or a felony of the fifth degree,

the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months.”

Siefker’s sentence on each fifth degree felony was within the statutory range, and

-6- Case No. 12-10-14

therefore, not contrary to law. Notwithstanding Siefker’s arguments, the trial

court was not required to make findings under R.C. 2929.14(C) or 2929.14(E)(4)

before sentencing him to maximum and consecutive sentences. Foster, 2006-

Ohio-856, at ¶¶2, 4, & 7 of the syllabus.

{¶14} A review of the record indicates that the trial court considered R.C.

2929.11 and R.C. 2929.12 in rendering its sentence, though the trial court did not

explicitly state so in its judgment entry. Instead, the trial court stated that it

considered “the record, oral statements, any victim impact statements, and the

presentence investigation report, as well as the principles and purposes of

sentencing under Ohio Revised Code Sections [sic] 2929.19” (Sept, 23, 2010 JE,

Doc. No. 28) (emphasis added). R.C. 2929.19(B)(1) provides that a trial court

shall consider the record, oral statements, any victim statements, and the

presentence investigation report; however, R.C. 2929.11 provides for the

principles and purposes of sentencing.

{¶15} Nevertheless, the record clearly reflects that the trial court considered

R.C. 2929.11 and 2929.12 in rendering its sentence. At the sentencing hearing,

the trial court noted that Siefker’s criminal offenses were tied to his drug and

alcohol abuse. (Sept. 16, 2010 Tr. at 5). The trial court also noted that the co-

defendant implicated Siefker in a total of seventeen (17) burglaries, breaking and

enterings, and thefts, even though he was only convicted of two (2) offenses. (Id.

-7- Case No. 12-10-14

at 5, 7). The trial court also noted Siefker’s extensive juvenile and adult criminal

history. (Id. at 5-7). The PSI indicated that Siefker was found delinquent as a

juvenile for underage consumption, criminal mischief, theft, possession of alcohol,

and two probation violations. As an adult, Siefker was convicted of: sales to and

use by underage persons and an open container, two OVIs, lanes violation, two

seat belt violations, failure to yield the right of way at a stop sign, failure to

appear, and driving under suspension. (PSI). Siefker was also previously charged

with possession of cocaine but received intervention in lieu of his conviction. (Id.).

All of these considerations were relevant to whether or not Siefker was likely to

reoffend. R.C. 2929.12(D). Therefore, we cannot find that the trial court failed to

consider R.C. 2929.12 and 2929.11 as required.

{¶16} Siefker’s argument that his receiving stolen property offense is not

the worst form of the offense since it was merely a fifth degree felony is also

meritless. Accepting Siefker’s argument would lead to the absurd result that trial

courts would always have to sentence all defendants who commit fifth degree

receiving stolen property offenses to the shortest term of six (6) months, rendering

R.C. 2929.14(A)(5)’s sentencing range meaningless. We also are not persuaded

that Siefker’s breaking and entering offense was not the worst form of the offense

because he was merely the getaway driver. An accomplice “shall be * * *

punished as if he were a principle offender,” and, aside from that, the trial court is

-8- Case No. 12-10-14

permitted to examine the actions of the principal offender(s) to determine whether

or not the accomplice’s offense is the worst form of the offense. R.C. 2923.03(F);

State v. Walker, 6th Dist. No. C-030159,

. Finally, by

focusing on whether or not his offense was the “worst form of the offense,”

Siefker ignores the fact that R.C. 2929.14(C) allows the trial court to impose a

maximum sentence if it finds that offender poses “the greatest likelihood of

committing future crimes.” The trial court here was very concerned about Siefker

committing future crimes and protecting the public. (Sept. 16, 2010 Tr. at 7).

{¶17} Finally, we must reject Siefker’s argument that the trial court erred

by failing to make R.C. 2929.14(E)(4) findings. As we already mentioned, trial

courts are not required to make findings prior to imposing consecutive sentences.

Foster,

, at ¶¶2, 4, & 7 of the syllabus. Although not required, the

trial court here specifically found that “the harm is so great that a single prison

term will not adequately protect the public from future crimes, and the consecutive

sentences are needed to protect the public from future crime.” (Sept. 16, 2010 Tr.

at 7). The trial court also found that “the harm is so great that a single term does

not adequately reflect the seriousness of the conduct, and that consecutive

sentences are needed to protect the public.” (Id.).

{¶18} Siefker’s first and second assignments of error are, therefore,

overruled.

-9- Case No. 12-10-14

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT CONSIDERED STATEMENTS MADE BY A CO- DEFENDANT, IN AN ENTIRELY SEPARATE PROCEEDING AND NOT UNDER OATH, IN REGARDS TO SENTENCING.

{¶19} In his third assignment of error, Siefker argues that the trial court

violated R.C. 2929.19(B)(1) by relying upon statements made by the co-defendant.

Specifically, Siefker argues that R.C. 2929.19(B)(1) limits the trial court’s

consideration at sentencing to those items enumerated in the statute, and the

statements of a co-defendant is not listed in the statute.

{¶20} Siefker’s argument lacks merit. At sentencing, the trial court stated:

Well, let me begin with the statements that were made by Mr. Meeker. He stated, among other things, that you told him you used to be hooked on cocaine and would break into barns and garages and steal things that you could sell. He reported that you and he started breaking in to barns and garages, that you were either drunk or high on cocaine when the offenses were committed. And he relates, according to his statements, that you and he were involved in a total of 17 separate burglaries, B & E’s or thefts.

(Sept. 16, 2010 Tr. at 5). This information appears in the PSI prepared for the

sentencing in this case. As Siefker acknowledges, R.C. 2929.19(B)(1) permits the

trial court to rely upon the contents of the PSI for purposes of sentencing.

Furthermore, hearsay statements, including mere allegations of crimes for which

the defendant was never prosecuted, are permitted during sentencing since the

rules of evidence are not applicable. State v. Bowser,

, 2010-

-10- Case No. 12-10-14

Ohio-951,

, citing State v. Cooey (1989),

,

. See, also, Evid.R. 101(c)(3). Therefore, the trial court did not

err in relying upon this information for purposes of determining the appropriate

sentence in this case.

{¶21} Siefker’s third assignment of error is, therefore, overruled.

{¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, J., concurs.

WILLAMOWSKI, J., concurs in Judgment Only.

/jnc

-11-