[Cite as State v. Ramey,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-11-11

v.

CARL L. RAMEY, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2011-CR-35

Judgment Affirmed

Date of Decision: January 17, 2012

APPEARANCES:

Gerald F. Siesel for Appellant

Edwin A. Pierce for Appellee Case No. 2-11-11

PRESTON, J.

{¶1} Defendant-appellant, Carl L. Ramey, Jr. (hereinafter “Ramey”),

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

For the reasons stated herein, we affirm.

{¶2} On February 22, 2011, the Auglaize County Grand Jury indicted

Ramey on Count One of trafficking heroin in violation of R.C. 2925.03(A)(1),

(C)(6)(c), a first degree felony and Count Two of trafficking cocaine in violation

of R.C. 2925.03(A)(1), (C)(4)(b), a fourth degree felony. (Doc. No. 1).

{¶3} On March 8, 2011, the trial court held an arraignment wherein Ramey

entered pleas of not guilty to both counts. (Doc. No. 20).

{¶4} On April 14, 2011, a change of plea hearing was held wherein Ramey

pled guilty to an amended Count One of trafficking in heroin in violation of R.C.

2925.03(A)(1), (C)(6)(d), a second degree felony. (Doc. No. 43). Count Two was

dismissed pursuant to the plea agreement. (Id.); (Doc. No. 42). The trial court

accepted Ramey’s guilty plea, found Ramey guilty, and ordered a pre-sentence

investigation (“PSI”) report. (Doc. No. 43).

{¶5} On June 8, 2011, the trial court sentenced Ramey to 8 years

imprisonment. (Doc. No. 52).

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{¶6} On July 11, 2011, Ramey filed a notice of appeal. (Doc. No. 70).1

Ramey now appeals raising one assignment of error for our review.

ASSIGNMENT OF ERROR

THE TRIAL COURT’S SENTENCE OF THE DEFENDANT- APPELLANT TO A MAXIMUM SENTENCE OF EIGHT (8) 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 OHIO REVISED CODE, SECTION 2929.11 AND 2929.12[.]

{¶7} In his sole assignment of error, Ramey argues that the trial court’s

sentence was contrary to law because the trial court failed to consider R.C.

2929.11 and 2929.12. Ramey further argues that the record does not support the

trial court’s maximum sentence of 8 years in this case.

{¶8} 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.2 State v. Ramos, 3d Dist. No. 4-06-24,

(the clear and convincing evidence standard of review set forth under R.C. 1 The sentencing entry was filed on June 9, 2011. (Doc. No. 52). Thirty days from June 9, 2011 was July 9, 2011; however July 9, 2011 was a Saturday, so Ramey’s filing on Monday, July 11, 2011 was timely under App.R. 4(A). App.R. 14(A). 2 This Court notes that the Ohio Supreme Court has released a plurality opinion on the issue of whether a clear and convincing standard or an abuse of discretion standard is proper for reviewing felony sentences under R.C. 2953.08(G). State v. Kalish,

,

,

. Although this Court utilized our precedential clear and convincing standard, affirmed and adopted by Kalish’s three dissenting Justices, we would have concluded that Ramey’s sentence was proper under the Kalish plurality’s two-step approach as well.

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

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). 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,

,

(12th

Dist. 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).

{¶9} Ramey correctly asserts that a trial court must consider R.C. 2929.11

and 2929.12 when sentencing a felony offender. State v. Mathis,

,

,

. A sentence imposed without any

consideration given to these statutes is contrary to law. State v. Kalish,

,

,

. However, when the record

is silent concerning the trial court’s consideration of R.C. 2929.11 and 2929.12, it

is presumed that the trial court considered them. Id. at ¶ 18, fn. 4, citing State v.

Adams,

,

(1988). Furthermore, the

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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, so long as the record is sufficient

for a court to determine that the consideration occurred. State v. Parsons, 3d Dist.

No. 2-10-27,

, citing State v. Ditto, 3d Dist. No. 12-09-08,

; State v. Scott, 3d Dist. No. 6-07-17,

.

{¶10} In the case sub judice, the trial court did not state at the sentencing

hearing that it had considered R.C. 2929.11 and 2929.12. However, in its

judgment entry of sentence, the trial court stated:

[t]he Court has considered the record, oral statements, any Victim

Impact Statement and Pre-Sentence Report prepared, as well as the

principles and purposes of sentencing under Ohio Revised Code §

2929.11, and has balanced the seriousness and recidivism factors

under Ohio Revised Code § 2929.12.

(Doc. No. 52). Given this statement, we find that the record sufficiently

demonstrates that the trial court considered both R.C. 2929.11 and 2929.12 as

required. Parsons,

. Furthermore, it is apparent from the

sentencing hearing transcript that the trial court considered the R.C. 2929.12

factors, especially those relative to Ramey’s likelihood of recidivism, his

expression of remorse, and his prior drug problems. R.C. 2929.12(D)-(E). (June 8,

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2011 Tr. at 23-26). Therefore, the trial court’s sentencing entry is not contrary to

law for failing to consider R.C. 2929.11 and 2929.12 as Ramey argues.3

{¶11} Ramey has failed to clearly and convincingly demonstrate that his

sentence was unsupported by the record. Ramos,

. Ramey

sold a confidential informant a large amount of heroin for $2,700.00. (PSI, Court’s

Ex. A). Given the large quantity of heroin involved, Ramey was originally

indicted on a first degree felony, but the State agreed to reduce the charge to a

second degree felony in exchange for Ramey’s guilty plea. (Doc. Nos. 1, 42);

(Apr. 14, 2011 Tr. at 3-4). So, as originally indicted, Ramey faced a maximum of

10 years imprisonment for trafficking in heroin (Count One). R.C. 2929.14(A)(1).

The State also agreed to dismiss Count Two, a fourth degree felony drug

trafficking charge, in exchange for Ramey’s guilty plea to an amended Count One.

(Doc. No. 42); (Apr. 14, 2011 Tr. at 3-4). Count Two carried a possible prison

term of 6 to 18 months. R.C. 2929.14(A)(4). Therefore, as a result of the

negotiated plea agreement, Ramey already had his possible sentence reduced by at

least 2 ½ years (2 years on Count One and 6 months on Count Two).

{¶12} In addition, Ramey recruited his sister Shante Walker, and his

girlfriend, Jaquanta Harris, to facilitate his drug trafficking offense. (PSI, Court’s

Ex. A). Walker drove her two young children (ages 1 and 4), Ramey, and Harris

3 We also note that the trial court sentenced Ramey to 8 years imprisonment, which is the maximum for a second degree felony. R.C. 2929.14(A)(2). Since the sentence falls within the statutory range, it is not contrary to law on that basis either.

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from Dayton to St. Mary’s so Ramey could commit the drug trafficking offense.

(Id.). At the time of the offense, Harris was seated in the front passenger’s seat,

and Ramey was seated in the back seat with Walker’s (his sister’s) two young

children. (Id.). Both Walker and Harris helped Ramey complete the drug sale by

counting the money for him. (Id.). Prior to the present offense, Ramey had 2

possession of cocaine convictions, a concealed weapon conviction, and several

driving violations. (Id.). Ramey was also in arrears on his child support for

several of his children, and he had a documented drug and alcohol problem. (Id.).

{¶13} In light of the foregoing, we cannot conclude that Ramey’s 8-year

maximum sentence was unsupported by the record, or that the record lacked a

sufficient basis for the imposition of the 8-year maximum sentence.

{¶14} Ramey’s sole assignment of error is, therefore, overruled.

{¶15} 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., concur.

WILLAMOWSKI, J., Concurring Separately.

{¶16} I concur fully with the judgment of the majority; however write

separately to emphasize the appropriate standards of review. The standard of

review for sentences was set forth in the plurality opinion of

In

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Kalish, four panel members noted that R.C. 2953.08(G) requires that appellants

must meet a clearly and convincingly contrary to law standard of review when

reviewing a sentence.4 For example, if the sentencing court imposed consecutive

sentences, the standard of review would be whether appellant has shown that the

sentence was clearly and convincingly contrary to law. However, if the appeal is

based upon alleged improper application of the factors in R.C. 2929.12, four panel

members in Kalish would require review using an abuse of discretion standard as

specifically set forth in R.C. 2929.12.5

{¶17} In his assignment of error, Ramey alleges that the trial court erred by

failing to properly consider and apply the felony sentencing guidelines set forth in

R.C. 2929.11 and 2929.12. Ramey’s appeal of his felony sentence challenges both

the consideration of the factors in R.C. 2929.11 and 2929.12 and the application of

the factors in R.C. 2929.12. As stated by the majority, Ramey has not shown by

clear and convincing evidence that the trial court failed to consider the statutory

factors. In addition, the trial court specifically addressed the factors set forth in

R.C. 2929.12. The trial court’s application of the factors was supported by some

competent, credible evidence. Thus, the trial court’s determinations were not an

abuse of discretion. For this reason, I concur in the judgment of the majority.

4 Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all reached this conclusion. 5 Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this position, although the first three would use both standards of review in all cases.

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